A shift in focus

Systematisation in European private law through EU law

    Research output: Contribution to journalArticleScientificpeer-review

    Abstract

    The discourse on the Europeanisation of private law appears gradually to be moving into new territory in which the central debate on convergence of private laws in Europe makes place for structural questions on private law development in a multi-level European legal order. With the realisation that private law is and will remain comple- mentary regulated at EU level and in national laws, a re-orientation is called for that, in the words of Micklitz, ‘allows one to determine which norms shall be elaborated and enforced at what level and by whom’. This article accepts that such a re-orientation is needed in relation to substance, process, instruments and enforcement; a more fundamen- tal question needs to be addressed, however, in order to ensure coherence in the develop- ment of private law in Europe. As can be gleaned from existing practice in EU consumer law, competition law, and financial market regulation, a deeply engrained tension between market integration and protectionist policies in Community law has resulted in incoherent regulation at EU level, which filters through into national legal systems. This puts at risk fundamental values of private law, such as certainty and fairness. A solution for this is proposed by shifting the focus from national private laws to the political and doctrinal structure of EU private law, and the normative framework it provides. General principles of EU private law, it is argued, could and should provide a counterweight to the problem of conflicting policies and set out a guideline for the future development of European private law.
    Original languageEnglish
    JournalEuropean Law Journal
    Volume17
    Publication statusPublished - 2011

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    private law
    European Law
    EU
    Law
    regulation
    legal order
    Europeanization
    financial market
    legal system
    fairness

    Cite this

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    title = "A shift in focus: Systematisation in European private law through EU law",
    abstract = "The discourse on the Europeanisation of private law appears gradually to be moving into new territory in which the central debate on convergence of private laws in Europe makes place for structural questions on private law development in a multi-level European legal order. With the realisation that private law is and will remain comple- mentary regulated at EU level and in national laws, a re-orientation is called for that, in the words of Micklitz, ‘allows one to determine which norms shall be elaborated and enforced at what level and by whom’. This article accepts that such a re-orientation is needed in relation to substance, process, instruments and enforcement; a more fundamen- tal question needs to be addressed, however, in order to ensure coherence in the develop- ment of private law in Europe. As can be gleaned from existing practice in EU consumer law, competition law, and financial market regulation, a deeply engrained tension between market integration and protectionist policies in Community law has resulted in incoherent regulation at EU level, which filters through into national legal systems. This puts at risk fundamental values of private law, such as certainty and fairness. A solution for this is proposed by shifting the focus from national private laws to the political and doctrinal structure of EU private law, and the normative framework it provides. General principles of EU private law, it is argued, could and should provide a counterweight to the problem of conflicting policies and set out a guideline for the future development of European private law.",
    author = "V. Mak",
    year = "2011",
    language = "English",
    volume = "17",
    journal = "European Law Journal",
    issn = "1351-5993",
    publisher = "Wiley-Blackwell",

    }

    A shift in focus : Systematisation in European private law through EU law. / Mak, V.

    In: European Law Journal, Vol. 17, 2011.

    Research output: Contribution to journalArticleScientificpeer-review

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    AB - The discourse on the Europeanisation of private law appears gradually to be moving into new territory in which the central debate on convergence of private laws in Europe makes place for structural questions on private law development in a multi-level European legal order. With the realisation that private law is and will remain comple- mentary regulated at EU level and in national laws, a re-orientation is called for that, in the words of Micklitz, ‘allows one to determine which norms shall be elaborated and enforced at what level and by whom’. This article accepts that such a re-orientation is needed in relation to substance, process, instruments and enforcement; a more fundamen- tal question needs to be addressed, however, in order to ensure coherence in the develop- ment of private law in Europe. As can be gleaned from existing practice in EU consumer law, competition law, and financial market regulation, a deeply engrained tension between market integration and protectionist policies in Community law has resulted in incoherent regulation at EU level, which filters through into national legal systems. This puts at risk fundamental values of private law, such as certainty and fairness. A solution for this is proposed by shifting the focus from national private laws to the political and doctrinal structure of EU private law, and the normative framework it provides. General principles of EU private law, it is argued, could and should provide a counterweight to the problem of conflicting policies and set out a guideline for the future development of European private law.

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