The Interplay Between Public Regulation and Private Law from the European and Comparative Perspective

Over the past several decades, public regulation has been increasingly dealing with issues that used to be the province of general private (common) law, such as the validity of standard contract terms, liability for defective products, or the financial firm’s duties of care and loyalty towards the client. This trend has manifested itself not only in national legal systems but also at the European level. In its approach to the regulation of the internal market, the EU has never accepted the traditional distinction between regulation (aimed at achieving certain public goals) and private law (primarily concerned with justice between private parties). The European legislator has viewed private law as an instrument for achieving the collective objectives of European integration and has actively promoted the set up of administrative agencies and ADR/ODR bodies to develop and enforce it at the expense of civil courts. The rise of regulation in the traditional private law domain raises a complex issue concerning the relationship between public regulation and private law. It involves the need to conceptualise this relationship in the context of the interplay between multiple actors and layers of rules produced by them within a multi-level (European) legal order.

Drawing upon the examples from the fields of unfair contract terms, unfair commercial practices, product safety, consumer credit, and investment services, this paper will develop the models of the relationship between public regulation and private law, in particular contract and tort law. In so doing, it will take into account the intricacies of relevant EU legislation, the strengths and weaknesses of public regulation and private law discourse in pursuing public goals and private interests, and the role of industry self-regulation. The models to be discussed reflect elements of the current practices in a variety of jurisdictions (such as France, the Netherlands, the UK as well as EU law) and, at the same time, supply a framework for evaluating these practices in view of both the internal dimension of private relationships and their regulatory dimension. This analysis will also offer some lessons for the broader narrative of how European integration in regulated areas could proceed, particularly in the light of Brexit.

Olha Cherednychenko holds the Chair in European Private Law and Comparative Law at the University of Groningen and is a Founding Director of the Groningen Centre for European Financial Services Law (GCEFSL), the Netherlands. She has published on a variety of issues at the intersection of European law, (financial) regulation, private law, and comparative law. Her recent publications include i.a. ‘Public Supervision over Private Relationships: Towards European Supervision Private Law?’, European Review of Private Law (2014); ‘Contract Governance in the EU: Conceptualising the Relationship between Investor Protection Regulation and Private Law’, European Law Journal (2015); ‘Cooperative or Competitive? Private Regulators and Public Supervisors in the Post-Crisis European Financial Services Landscape’, Policy and Society (2016).

A sandwich lunch will be available from 12.30.