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
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