EU PRIVATE LAW W1 Reading Notes “Martijn W. Hesselink: setting the scene” First definition: Private law is the law applicable to private (or horizontal) relationships Second definition: Relating only to private interests, as opposed to public interests >> sometimes inspired by a concern to keep private law ‘pure’ in this specific and controversial sense of being concerned only with private interests and preventing the infiltration of public concerns into disputes governed by private law Increasing Europeanisation (1980s) effect on private law - Most directives in the field of private law, including the entire body of EU consumer law, have had Art 114 TFEU (or its predecessors) as their legal basis - Regulations, that bring uniform EU law, are less frequent in the field of private law, but there exist some prominent instances, eg in EU financial law - Fundamental rights have had an increasingly important impact on private law relationships already governed, directly or indirectly, by EU law - The Court of Justice of the EU has played a prominent, sometimes plainly activist, role, especially with regard to consumer protection and to fundamental rights • Preliminary rulings Inequality: - Positive and normative questions • Positive: How much inequality is there? What types of inequality are there? • Normative: how much equality ought there to be, or, put differently, how much inequality is acceptable? - Equality of what? • Income - policies aiming at reducing inequality (or wealth) of income include income tax (plus capital tax and inheritance tax) and various social security measures (eg unemployment benefits, a universal basic income) • Needs - Theory 1: everyone is entitled at least to the satisfaction of their needs (basic needs). - Theory 2: people are equally entitled to just as much as each of them needs, nothing more • Opportunity - Prominent instruments for reducing inequality of opportunity are measures (including quotas) aiming to improve equal access to school, to healthcare and (other) essential services, or to high-ranking positions • Power Interpersonal (or relational) inequality and injustice occurs when, in a relationship between two or more persons, one is in a better position than the other(s) in terms, for example, of bargaining power, negotiation skills, expertise, experience, independence, cognitive biases, or luck Who should breach inequality? What of the recipients? EU citizens? Formal equality is usually considered a basic or minimum requirement of justice and rationality — Formal equality then simply means that people are treated equally already when all individuals are treated the same way, whatever their specific characteristics or situations >> however: frequently regarded as insufficient Substantive Inequality: new doctrines such as unconscionability, economic duress, abuse of circumstances or unfair exploitation, and, especially, the sets of rules aiming at the protection of certain categories of weaker or vulnerable parties, such as workers, tenants, consumers, and the rules against the discrimination on grounds of gender, ethnic background or religion Course Objective: Identifying the EU’s private law as an agent of inequality and equality in Europe Reading 2: Laura Burgers, Marija Bartl, and Chantal Mak, “Introduction: The Evolving Concept of Private Law in Europe”, Handbook: Uncovering European Private Law (2022) Public/private divide >> privatisation of public function Private autonomy as general principle of private law — Substantive side: (eg. freedom of contract) - promotion of material or substantive equality. This can be called the ‘social’ or ‘societal’ dimension of private law. >> To the extent that the promotion is taken up by the judiciary, this is often called the ‘materialisation’ of private law - Constitutionalisation of private law (second half of 20th century) Procedural side: one of the parties decides what part of their conflict they want to take to court, and whether they want to do that at all. - Party autonomy: This means that parties who enter into a contract, are free to negotiate what law applies to their contract and to which court or arbiter they will resort in case of conflict. Private Law-makers in EU - We understand private law as law made by public authorities, i.e. legislatures and judiciaries - Rules made by private parties - fall within the sphere of freedom of contract or self-regulation - ‘Civil law’ is frequently used a synonym of ‘private law’. Civil procedural law is typically laid down in codes of civil procedure. It refers to procedural rules in private legal disputes and contains rules on, for example: evidence, possibilities for appeals and enforcement of judgments. What is EU private Law? — EU law impacting private legal relations, i.e. law emanating from the EU level, or ‘EU private law’ >> For over two decades, from 1989 onwards, attempts were made to draft a civil code for the European Union. However, no consensus could be reached, which in turn exposed how legal- politically salient issues of private law are, and what importance civil codes have for national identities >> Idea that EU law threatens the coherence, essence or autonomy of national private laws Lochner Case: >> Lochner allowed an employee to work more then 60 hours in a week >> ‘violates bakeshop Act’ >> Lochner claims it should have been interpreted to contain the freedom to contract among the rights encompassed by substantive due process - Does the Bakeshop Act violate the liberty protected by the Due Process Clause of the Fourteenth Amendment? 5-4 Majoritarian decision: The New York law violated "liberty of contract" protected by the Due Process Clause of the Fourteenth Amendment - The statute interfered with the freedom of contract, and thus the Fourteenth Amendment's right to liberty afforded to employer and employee - New York law failed the rational basis test for determining whether government action is constitutional - The Bakeshop Act had no rational basis because long working hours did not dramatically undermine the health of employees, and baking is not particularly dangerous

European Private Law

Law that applies to private parties, governing horizontal transactions between them.

Inequality

A state of being unequal in some aspect, such as income, opportunities, or power.

Energy Poverty

A situation in which households are unable to access essential energy services.

Consumer Protection Law

Legal measures designed to protect consumers from unfair business practices.

Freedom of Contract

The right to enter into contracts without undue restrictions.

Unfair Commercial Practices Directive 2005

EU directive aimed at protecting consumers against misleading or aggressive marketing.

Directive 2009/72/EC

An EU directive that set rules for the electricity market, focusing on consumer rights and market architecture.

Normative Aspects of Equality

Principles or standards that define what equality should look like in society.

Formal vs. Substantive Equality

Formal equality treats everyone the same regardless of differences, while substantive equality takes into account the real-life conditions of individuals.

Collective Provision

A method of addressing needs through shared resources or services, typically provided by the state.

Distributive Justice

Fair allocation of resources and opportunities among individuals or groups.

Corrective Justice

Restorative actions taken to rectify wrongs or imbalances in relationships between individuals.

Energy Justice

A framework that seeks equitable distribution of the benefits and costs of energy services.

Vulnerable Consumer

A consumer who is at risk of unfair treatment due to lack of knowledge, experience, or resources.

Universal Service Obligations

Requirements for service providers to ensure that all consumers have access to essential services.

CJEU

Court of Justice of the European Union, responsible for interpreting EU law.

EU Pillar of Social Rights

Framework that outlines the social rights of people in the EU, emphasizing social inclusion and protection.

Right to Access Essential Services

Legal recognition that individuals should have access to necessary services, like energy, healthcare, and education.

Accordance with Fundamental Rights

Ensuring that laws and policies comply with established human rights standards.

Consumer as Prosumers

Consumers who also produce energy, participating actively in the energy market.

Electricity Directive 2019

EU legislation aimed at regulating the electricity market, with a focus on consumer rights and protections.