Of Private Law, Market Regulation and Telling Them Apart in the EU

Abstract

This paper seeks to engage with the theme of the conference, Private Law and Regulation, and with the organizers’ research theme, “coherent private law”, at two main levels. On the one hand, it connects to the question of private law and market regulation by zooming in on one specific manifestation of private law - unfair contract terms under European harmonised rules - which is arguably already regulatory private law. Rather than discussing the impact of public law rules on private law adjudication, then, the paper seeks to show how public law rationales impact private law rules when the latter are adopted and “used” as a regulatory instrument. This argument is sketched on the basis of a case study on the European Court of Justice’s interpretation of the Unfair Terms Directive. After having presented this study, the paper concludes by briefly exploring what options are available for private lawyers to claim a residual relevance of their subject and its principles in a context which seems to put all these consolidated ideas under increasing strain.