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Pluralism in European Private Law

  • Vanessa MAK (a1)

Abstract

This article takes stock of legal pluralist thinking in European private law. In which ways have existing theories brought forward our understanding of lawmaking in European private law? Central to that debate are the competing rationalities of EU internal market law, on the one hand, and national, juridical systems of private law on the other hand. An analysis of norms, processes, and actors involved in lawmaking in European private law reveals a field that has matured, but that is now at the threshold of a re-evaluation and potentially a transformation in lawmaking from ordered to strong legal pluralism, with a greater role for private regulation.

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I thank Hans Lindahl, Eric Tjong Tjin Tai, and an anonymous referee for comments on an earlier version of this article.

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1 Michaels, RWhy We Have No Theory of European Private Law Pluralism’ in L Niglia (ed), Pluralism and European Private Law (Hart Publishing, 2013), pp 139, 158 .

2 That broad idea gives rise to a diverse range of further questions on which legal systems can be recognised and whether it is normatively desirable to maintain legal pluralism. For a recent overview of the field, see G Davies and M Avbelj (eds), Research Handbook on Legal Pluralism and EU Law (Edward Elgar, forthcoming). I thank the editors for giving me a preview of the introduction and of several chapters of the book.

3 A trend noted by Micklitz, H-W, ‘The Visible Hand of European Regulatory Private Law—The Transformation of European Private Law from Autonomy to Functionalism in Competition and Regulation’ (2009) 28(1) Yearbook of European Law 3 , who sees this as part of a process of ‘politicization’ of European private law in which new forms of governance are emerging. See also Smits, JMPlurality of Sources in European Private Law, or: How to Live with Legal Diversity?’ in R Brownsword, H-W Micklitz, L Niglia and S Weatherill (eds), The Foundations of European Private Law (Hart Publishing, 2011), p 323 ; Smits, JM, ‘Het privaatrecht van de toekomst’ (2015) 52(2) Tijdschrift voor Privaatrecht 517 .

4 See Twining, W, General Jurisprudence (Cambridge University Press, 2009), pp 88121 , 362–75.

5 Nico Krisch’s theory of systemic legal pluralism, for example, uses ‘interface norms’ that determine when one systems should tolerate a rule emanating from another legal system as a mechanism to mediate legal pluralism. A loophole in this framework is that more powerful actors can impose their most favoured rules on others. See Capps, P and Machin, D, ‘The Problem of Global Law’ (2011) 74(5) Modern Law Review 794, 808 . On ordered legal pluralism, see also M Delmas-Marty, Ordering Pluralism. A Conceptual Framework for Understanding the Transnational Legal World (translation N Norberg; Hart Publishing, 2009), p 14, who prefers ordered pluralism over the perceived unruliness of strong legal pluralism.

6 Private autonomy, by contrast, is the ability to freely give shape to individual relationships between private parties. Individual autonomy can also be regulated so as to contribute to the pursuit of societal goals. See H Dagan, ‘Between Regulatory and Autonomy-Based Private Law’ (2016) 22 European Law Journal 644, 647 ff. Moreover, it can morph into public autonomy when rules adopted in individual private law relationships become a template for regulation. See Part IV below.

7 For an earlier elaboration of the normative argument, see V Mak, Globalization, Private Law and New Legal Pluralism (NYU, 2015) Jean Monnet Working Paper Series, JMWP 14/15, available at https://jeanmonnetprogram.org/paper/globalization-private-law-and-new-legal-pluralism. The paper discusses in some detail how one of the primary problems with private regulation—a lack of democratic legitimacy—may be addressed. Ibid, pp 20–21, with reference to the concept of ‘affectedness’ developed by David Held which ties any assessment of democracy to the quality by which a group has been affected by a decision. See Held, D, ‘Democratic Accountability and Political Effectiveness from a Cosmopolitan Perspective’ (2004) 39 Government and Opposition 364 .

8 I use a broad definition of private regulation that includes regulation by private actors through contracting, self-regulation, and co-regulation.

9 Another example of this approach can be seen in Michaels (see note 1 above).

10 Here in the meaning of private law developed at the EU level. The term can also be used in reference to the entire body of rules on European private law, including national laws.

11 The term ‘rationalities’ is used by Michaels, ROf Islands and the Ocean: The Two Rationalities of European Private Law’ in R Brownsword, H-W Micklitz, L Niglia and S Weatherill (eds), The Foundations of European Private Law (Hart Publishing, 2011), p 139 , who distinguishes, as ideal types, the instrumentalism underlying European private law from the ‘juridical’ rationality underlying national private laws. See also Micklitz, H-W, ‘Perspektiven des europäischen Privatrechts—Ius commune praeter legem?’ (1998) 6 Zeitschrift für europäisches Privatrecht 253 ; Schmid, CU, ‘The Instrumentalist Conception of the Acquis Communautaire in Consumer Law and its Implications on a European Contract Law Code’ (2005) 1(2) European Review of Contract Law 211 ; Bartl, M, ‘Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political’ (2015) 21(5) European Law Journal 572 .

12 Michaels, see note 11 above, p 142.

13 Ibid, who rightly notes that the goals of EU law since its inception have been extended to goals that go beyond the internal market project. See also V Mak, The Character of European Private Law (inaugural lecture, Tilburg University 19 June 2015), pp 9–10.

14 Michaels, see note 11 above, p 142.

15 Compare Study Group on Social Justice in European Private Law, ‘Social Justice in European Contract Law: A Manifesto’ (2004) 10(6) European Law Journal 653 . Cf also Micklitz, who regards private law as part of economic law. See Purnhagen, K and Rott, P (eds), Varieties of European Economic Law and Regulation. Liber Amicorum for Hans Micklitz (Springer, 2014).

16 See eg Sassen, Saskia, A Sociology of Globalization (WW Norton, 2007).

17 This three-pronged framework is developed by Zumbansen as a methodology for studying the transnational legal sphere and makes it possible to consider norms from a perspective that is neutral on whether norms are part of an official legal system, and also independent from the territorial grounding of law in a particular jurisdiction. See P Zumbansen, Defining the Space of Transnational Law: Legal Theory, Global Governance and Legal Pluralism (Comparative Research in Law & Political Economy) Research Paper No 21/2011, p 7, available at http://digitalcommons.osgoode.yorku.ca/clpe/59.

18 Legrand, Compare P, ‘Against a European Civil Code’ (1997) 60(1) Modern Law Review 44 .

19 This conception of legal pluralism draws on studies of cosmopolitan and postnational pluralism, which hold that the legal framework should create or maintain a space for deliberation between different communities. It should do that first, by giving voice to public autonomy. Second, the interaction between different communities should be based on toleration of other values or viewpoints. See Krisch, N, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford University Press, 2010), pp 99 , 100–101, 103. For a ‘restatement’ based on the theory put forward in his book on Global Legal Pluralism, see Schiff Berman, PNon-State Lawmaking through the Lens of Global Legal Pluralism’ in MA Helfand (ed), Negotiating State and Non-State Law. The Challenge of Global and Local Legal Pluralism (Cambridge University Press, 2015), pp 15, 27 .

20 Michaels in an earlier study selected the theories of Wilhelmsson, Smits, and Legrand as ‘three of [legal pluralism’s] most prominent proponents’. See Michaels, note 1 above, p 140. I have chosen Micklitz’s work as the primary representative of a theory engaging with justice in European private law. It is of course not the only theory and the discussion will also take into account the work of Wilhelmsson and others on social justice. From Hesselink’s work, which also deals with justice issues, I take up the discussion on pragmatism in European private law as a separate issue. Further, while Legrand’s position is interesting because of his strong outcry against harmonisation of European private law, his view seems to have lost some momentum, in part because growing political divides between the EU member states in recent years have resulted in a more nationalist approach to lawmaking in European private law.

21 Indicative can be the list of authors, exclusively with a civil law background although some have worked in common law systems, included in L Niglia (ed), Pluralism and European Private Law (Hart Publishing, 2013).

22 See Micklitz, H-W, ‘Failure or Ideological Preconceptions? Thoughts on Two Grand Projects: the European Constitution and the European Civil Code’ in K Tuori and S Sankari (eds), The Many Constitutions of Europe (Ashgate, 2010), p 109 , and sources there cited.

23 Micklitz’s project works with four models: (1) conflict and resistance; (2) intrusion and substitution; (3) hybridisation; and (4) convergence. Conflict and resistance explores the possible ways in which national systems may try to resist the influence of European private law and seeks to clarify boundaries as to where EU law begins and national private law ends. Intrusion and substitution focuses on the introduction by the EU legislator of regulatory rules in private law, in a ‘self-sufficient’ manner, ie where the creation and enforcement of rules are all encompassed in the EU legal order. Hybridisation is concerned with the enforcement of rights arising from EU law through national remedies, and therefore aims for a merging of the two levels. Convergence, finally, looks at ways in which the two levels can be brought closer together without actually merging them. It focuses not just on mandatory or default rules, but also includes new modes of governance, co-regulation, and self-regulation.

24 H-W Micklitz and Y Svetiev (eds), A Self-Sufficient European Private Law – A Viable Concept? (EUI Working Papers, 2012) LAW 2012/31, p 6, available at http://blogs.eui.eu/erc-erpl/working-papers-2.

25 These justifications of course also follow from Article 114 of the Treaty on the Functioning of the European Union (TFEU), which is the main legal basis for harmonisation of private law in the EU. Nevertheless, the EU Treaties contain objectives and values that go beyond the internal market rhetoric.

26 Micklitz, H-W, ‘Introduction – Social Justice and Access Justice in Private Law’ in H-W Micklitz (ed), The Many Concepts of Social Justice in European Private Law (Edward Elgar, 2011), p 3 ; Micklitz, H-WMonistic Ideology versus Pluralistic Reality – Towards a Normative Design for European Private Law’ in L Niglia (ed), Pluralism and European Private Law (Hart Publishing, 2013) pp 29, 38 ; Micklitz, H-WThe Forgotten Dimension of European Private Law’ in L Azoulai, The Question of Competence in the European Union (Oxford University Press, 2014), p 125 . See also Svetiev, Y, ‘The EU’s Private Law in the Regulated Sectors: Competitive Market Handmaiden or Institutional Platform?’ (2016) 22(5) European Law Journal 659, 660 , who states that negative integration is so deeply entrenched in the CJEU’s case law that it makes EU law unable to accommodate national regulatory autonomy.

27 See page 4 above.

28 Discussed by Svetiev (see note 26 above). See also M Cantero Gamito ‘The Transformation in the Making of Private Law via Telecommunications Regulation’ in Micklitz and Svetiev, note 24 above, p 89.

29 See eg Domurath, I, Consumer Vulnerability and Welfare in Mortgage Contracts (Hart Publishing, 2017); Comparato, G, The Financialization of the Citizen. Social and Financial Inclusion through European Private Law (Hart Publishing, 2018).

30 van Leeuwen, B, European Standardisation of Services and Its Impact on Private Law. Paradoxes of Convergence (Hart Publishing, 2017).

31 Cf Hesselink, MW, ‘Private Law, Regulation, and Justice’ (2016) 22(5) European Law Journal 681, 683 .

32 See note 24 above, p 78.

33 This finding resonates the concerns put forward by Bartl (see note 11 above).

34 For reflections on the project by Hesselink, Bartl, Dagan, and Mulder, see the special issue of the European Law Journal (2016) 22(5).

35 Directive 2011/83/EU on consumer rights [2011] OJ L304/64 (Consumer Rights Directive).

36 Council Directive 1993/13/EEC on unfair terms in consumer contracts [1993] OJ L95/25 (Unfair Contract Terms Directive).

37 Directive 1999/44/EC on certain aspects of the sale of consumer goods and associated guarantees [1999] OJ L171/12 (Consumer Sales Directive).

38 Some even regard them as pillars of a pragmatic system that could develop into a loosely coherent European private law. See Hesselink, note 31 above, pp 685–87 for a further development of this argument.

39 The Consumer Rights Directive, Article 9 harmonises the right of withdrawal for all consumer contracts concluded through distance communication.

40 Statistics on consumer sales in the EU reveal a steady increase of the percentage of online sales as part of all consumer sales in Europe, which is linked to a growing trust of consumers in online shopping and a better knowledge of their rights. See European Commission, ‘EU Consumer Conditions Scoreboard 2017’, p 10, available at http://ec.europa.eu/newsroom/just/item-detail.cfm?item_id=117250.

41 Unfair Contract Terms Directive, note 36 above, Arts 3, 6.

42 Consumer Sales Directive, note 37 above, Art 3.

43 Notably in the UK, albeit that Brexit will perhaps diminish the relevance of that deviation. For an explanation on the continued prominence of damages as a remedy over specific performance, see Giliker, P, ‘The Consumer Rights Act 2015 – A Bastion of European Consumer Rights?’ (2016) 37(1) Legal Studies 78 . See also Mak, VSpecific Performance in English Consumer Sales Law’ in JM Smits, D Haas and G Hesen (eds), Specific Performance in Contract Law: National and Other Perspectives (Intersentia, 2008), p 121 .

44 The recent ‘Fitness Check’ of European consumer and marketing law confirms that the key directives introduced in the 1990s and 2000s, when effectively applied, tackle the most important problems encountered by consumers in the EU, also in online markets. The results of the Fitness Check and of this assessment, as well as the supporting studies, can be accessed online at ec.europa.eu/newsroom/just/item-detail.cfm?item_id=59332.

45 COM(2015) 634 final, Proposal for a Directive of the European Parliament and of the Council on Certain Aspects Concerning Contracts for the Supply of Digital Content.

46 This example refers to Mohamed Aziz v Caixa d’Estalvis de Catalunya, Tarragona i Manresa (Catalunyacaixa) C-415/11, EU:C:2013:164.

47 With one exception, namely that the consumer will have to pay the costs for returning the goods, through the medium that he desires; see Handelsgesellschaft Heinrich Heine GmbH v Verbraucherzentrale Nordrhein-Westfalen eV C-511/08, EU:C:2010:189, and now Consumer Rights Directive, note 35 above, Art 13. The consumer will however obtain a refund of the price of the goods as well as the delivery costs that he paid when ordering them. Moreover, in practice many traders provide consumers with the means to return goods at no additional cost.

48 Cf Hesselink, note 31 above.

49 On interpersonal justice, see ibid, pp 691–92. Interpersonal justice concerns the effects of private law on individuals and includes, but is not limited to, the correction of wrongs.

50 See eg Micklitz, H-W and Sieburgh, CPrimary EU Law and Private Law Concepts’ in H-W Micklitz and C Sieburgh (eds), Primary EU Law and Private Law Concepts (Intersentia, 2017), pp 1 , 42–43; Micklitz, H-W and Reich, N, ‘The Court and Sleeping Beauty: The Revival of the Unfair Contract Terms Directive (UCTD)’ (2014) 51(3) Common Market Law Review 771 .

51 Hesselink, note 31 above, p 691.

52 See page 4 above.

53 In particular the Court’s references to the EU Charter of Fundamental Rights in private law cases appear to boost social justice in European private law. See eg Collins, H, ‘Building European Contract Law on Charter Rights’ in H Collins (ed), European Contract Law and the Charter of Fundamental Rights (Intersentia, 2017), p 1 .

54 For a recent analysis, in which a comparison is made with the national context in the UK, see O’Brien, C, Unity in Adversity: EU Citizenship, Social Justice and the Cautionary Tale of the UK (Hart Publishing, 2017).

55 Howells, G, Twigg-Flesner, C and Wilhelmsson, T, Rethinking EU Consumer Law (Routledge, 2018), p 332 . See also the earlier analyses of a social welfare model in European (consumer) contract law in T Wilhelmsson, Social Contract Law and European Integration (Dartmouth, 1995) and—as part of a more general overview of different approaches— Wilhelmsson, T, ‘Varieties of Welfarism in European Contract Law’ (2004) 10(6) European Law Journal 712 , and Reich, N, General Principles of EU Civil Law (Intersentia, 2014), pp 8283 .

56 See Hesselink, MWHow Many Systems of Private Law are there in Europe?’ in L Niglia (ed), Pluralism and European Private Law (Hart Publishing, 2013), p 199 .

57 See page 4 above.

58 Hesselink, note 31 above, p 688.

59 See also above, Section I.

60 Hesselink, note 31 above, pp 686–87.

61 Two projects that proposed regulation of B2B relationships failed. The Common European Sales Law (CESL) intended to include not only B2C contracts within its scope, but also B2B contracts in which one of the parties was a small or medium-sized enterprise. See COM(2011) 635 final, Proposal for a Regulation of the European Parliament and of the Council for a Common European Sales Law, Art 7. An enquiry into the need for regulation of unfair commercial practices in B2B relations never led to legislative proposals. On this topic, see A Renda et al, ‘Study on the Legal Framework Covering Business-to-Business Unfair Trading Practices in the Retail Supply Chain. Final Report’ (European Union, 2014), available at http://ec.europa.eu/internal_market/retail/docs/140711-study-utp-legal-framework_en.pdf. Recently, a new proposal was published concerning transparency of online platforms. See COM(2018) 238 final, Proposal for a Regulation of the European Parliament and of the Council on Promoting Fairness and Transparency for Business Users of Online Intermediation Services.

62 Reich, Norbert, ‘A European Contract Law, or an EU Contract Law Regulation for Consumers?’ (2005) 28 Journal of Consumer Policy 383, 391 ff. According to Reich, an exception may be made for B2B contracts involving a small or medium-sized enterprise (p 393). See page 16 ff below.

63 Studies show that many consumers avoid court proceedings because of their high costs, long duration, and uncertain outcomes. See eg Ramsay, IConsumer Redress and Access to Justice’ in CEF Rickett and TGW Telfer (eds), International Perspectives on Consumers’ Access to Justice (Cambridge University Press, 2003), p 17 , who highlights that for many low-income consumers complaint mechanisms will not be as effective as they are for middle-income consumers.

64 Hesselink, note 31 above, p 686. See also Calliess’ analysis of online dispute resolution (ODR) mechanisms. Calliess, G-P, ‘Online Dispute Resolution: Consumer Redress in a Global Market Place’ (2006) 7(8) German Law Journal 647 .

65 Hesselink, note 31 above, pp 687–88.

66 The latter is the approach chosen in UK law, whilst eg Germany and the Netherlands have integrated most European private law directives into their civil codes.

67 Schulte-Nölke, H, ‘The Brave New World of EU Consumer Law – Without Consumers, or Even Without Law?’ (2015) 4(4) Journal of European Consumer and Market Law 135 .

68 The case law of the Court of Justice of the EU in relation to the ex officio assessment of unfair terms by national courts has cut across national rules of procedural law and has also, primarily in the Aziz judgment, influenced the assessment of unfairness in the light of the open norm of ‘good faith’ in contract law. See eg Mak, C, ‘The One and the Many: Translating Insights from Constitutional Pluralism to European Contract Law Theory’ (2013) 21(5/6) European Review of Private Law 1189 , 1207–08; Cherednychenko, OOThe Impact of Fundamental Rights’ in C Twigg-Flesner (ed), Research Handbook on EU Contract Law and Consumer Law (Edward Elgar, 2016), pp 109, 131133 .

69 See above, section II.

70 On the importance of remedies in contract law, see earlier Mak, V, Performance-Oriented Remedies in European Sale of Goods Law (Hart Publishing, 2009), pp 12 .

71 Cf Hesselink, note 31 above, p 686.

72 European private law has also remained focused on B2C transactions, although B2B transactions have on occasion been considered, but eventually not been subjected to legislative action. See eg Renda et al, note 61 above.

73 The debate could be extended also to other types of weaker parties, such as employees or those who are at risk of harm caused by environmental factors and climate change (‘green victims’).

74 This idea inspired the choice for the proposed CESL to be applicable to B2C contracts and to B2B contracts in which one of the parties is an SME. See note 61 above. A small enterprise is defined in EU law as a company with fewer than 50 staff and a turnover or balance sheet total of less than 10 million EUR. A medium enterprise is defined as a company with fewer than 250 staff and a turnover of less than 50 million EUR or a balance sheet total of less than 43 million EUR. See Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises [2003] OJ L124/36.

75 See eg Loos, MBM and Samoy, IIntroduction’ in MBM Loos and I Samoy (eds), The Position of Small and Medium-Sized Enterprises in European Contract Law (Intersentia, 2014), pp 1, 3 ; Hondius, E, ‘The Notion of Consumer: European Union versus Member States’ (2006) 28(1) Sydney Law Review 89, 96 .

76 See in Dutch, Schaub, M, ‘Wie is consument?’ (2017) Tijdschrift voor Consumentenrecht 30 .

77 For an analysis of English, Dutch, and German cases on financial services for consumers, see Mak, VThe “Average Consumer” of EU Law in Domestic and European Litigation’ in D Leczykiewicz and S Weatherill (eds), The Involvement of EU Law in Private Law Relationships (Hart Publishing, 2013), p 33 .

78 Hesselink’s view that the pragmatic pillars of European contract law can be influential because they have a wide territorial scope, with harmonised rules applying in all EU member states whereas national doctrinal laws diverge—see Hesselink, note 31 above, p 687—therefore only seems superficially true. It is important also to consider how the rules of European contract law integrate with those national doctrinal laws.

79 On resistance in European private law, see also G Comparato, Nationalism and Private Law in Europe (Hart Publishing, 2014), ch 3.

80 Here used as synonyms for public regulation promulgated by the State or other government actors or by the EU, and private regulation in the form of rules made by private actors through contracting practice, self-regulation or co-regulation.

81 Smits, JA Radical View of Legal Pluralism’ in L Niglia, Pluralism and European Private Law (Hart Publishing, 2013), pp 161, 162 .

82 O’Hara, EA and Ribstein, LE, The Law Market (Oxford University Press, 2009).

83 Smits, JM, The Making of European Private Law (Intersentia, 2002), p 64 , who however expresses a preference for a permanent free movement of rules rather than fixation of the most favourable rule through codification; Reich, N, ‘Competition Between Legal Orders: A New Paradigm of EC Law?’ (1992) 29(5) Common Market Law Review 861 .

84 Tiebout, C, ‘A Pure Theory of Local Expenditure’ (1956) 64(5) Journal of Political Economy 416 ;

and see Rühl, G, ‘Regulatory Competition in Contract Law: Empirical Evidence and Normative Implications’ (2013) 9(1) European Review of Contract Law 61, 64 , and sources there cited.

85 Lurger, BA Radical View of Pluralism? Comments on Jan Smits’ in L Niglia, Pluralism and European Private Law (Hart Publishing, 2013), pp 173174 .

86 Vogenauer, S, ‘Regulatory Competition through Choice of Law and Choice of Forum in Europe: Theory and Evidence’ (2013) 21(1) European Review of Private Law 13, 19 states that a party will only be able to impose contractual terms if it has superior bargaining power.

87 Ibid, for an in-depth analysis. See also Lurger, note 85 above.

88 These objectives correspond to those laid down in Article 3(3) TEU for the European social market.

89 Michaels, note 1 above, p 151.

90 For Europe, see Article 6(2) of Regulation 593/2008 on the law applicable to contractual obligations [2008] OJ L177/6 (Rome I), which stipulates that businesses cannot by contract derogate from the minimum protection that consumers have under the law of their country of residence.

91 The proposal for CESL was tailored specifically to contracts in which one of the parties is perceived as weaker, either as a consumer or as an SME. Compare COM(2011) 635 final, Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law, Art 7.

92 Vogenauer, note 86 above; see also F Chirico and P Larouche ‘Conceptual Divergence, Functionalism and the Economics of Convergence’ in S Prechal and B van Roermund (eds), The Coherence of EU Law: The Search for Unity in Divergent Concepts (Oxford University Press, 2008), pp 463, 487 ff.

93 Rühl, note 84 above, p 77.

94 While the reform of the German law of obligations according to parliamentary documents was inspired by a desire to be at the forefront of lawmaking in Europe, the substance of the reforms does not reflect the adoption of rules copied from practice in Europe. See in more detail Mak, VPrivate Actors as Norm-Setters through Choice-of-Law’: The Limits of Regulatory Competition’ in C Cauffman and JM Smits (eds), The Citizen in European Private Law: Norm-Setting, Enforcement and Choice (Intersentia, 2016), pp 99, 106 ; Deutscher Bundestag 11 October 2001, Plenarprotokoll 14/192, 18758; H Däubler-Gmelin, ‘Die Entscheidung für die so genannte Große Lösung bei der Schuldrechtsreform – Zum Entwurf Eines Gesetzes zur Modernisierung des Schuldrechts’ (2001) NJW 2281.

95 Michaels, note 1 above, p 152.

96 Ibid.

97 Compare Horst Eidenmüller, ‘Recht als Produkt’ (2009) 64 JuristenZeitung 641.

98 Michaels, note 1 above, pp 152–53.

99 The European legislator has made the connection between repair and sustainability in its 2015 proposal for new legislation for online sales; see COM(2015) 635 final, Proposal for a Directive of the European Parliament and of the Council on Certain Aspects Concerning Contracts for the Online and Other Distance Sales of Goods, recital 26.

100 Currently following from Consumer Sales Directive, note 37 above, Art 3(3); in the proposed Directive Arts 9(1), 11.

101 For an elaboration of this argument, see Mak, note 7 above.

102 Toleration, it should be recalled, is one element required in a legal pluralist theory of lawmaking in European private law. See page 6 above.

103 The term ‘prosumer’ was first coined by A Toffler, The Third Wave (Bantam Books, 1980). An alternative term, the ‘hybrid consumer’ is used by C Riefa, ‘The Reform of Electronic Consumer Contracts in Europe: Towards an Effective Legal Framework?’ (2009) 14 Lex Electron 17.

104 Not only prosumers have benefited from this shift; the gains from the platform economy also go in a large part to the major platforms themselves, such as Airbnb, Google, Facebook, and Amazon.

105 For an exploration of the rise of the platform economy, see Sundararajan, A, The Sharing Economy (MIT Press, 2016), pp 69 ff .

106 For an assessment of the consumer notion in e-commerce law over time, see EM Weitzenboeck, ‘Looking Back to See Ahead: The Changing Face of Users in European E-Commerce Law’ (2015) 23(3) Artificial Intelligence Law 201, who makes a case for maintaining consumer protection and letting general contract law deal with the emergence of new users, such as prosumers.

107 See MBM Loos et al, Digital Content Contracts for Consumers. Analysis of the Applicable Legal Frameworks and Suggestions for the Contours of a Model System of Consumer Protection in Relation to Digital Content Contracts, Final Report: Comparative Analysis, Law & Economics Analysis, Assessment and Development of Recommendations for Possible Future Rules on Digital Content Contracts. With an Executive Summary of the Main Points (study performed for the European Commission, 2011), pp 42–44, available at ec.europa.eu/justice/consumer-marketing/files/legal_report_final_30_august_2011.pdf. The trio ‘profit-organisation-frequency’ in practice allows courts some useful tools to distinguish between professional and non-professional traders. Germany and the Netherlands attach particular importance to the appearance of the prosumer, ie whether they present themselves as a consumer or a trader.

108 Brown, I and Marsden, CT, Regulating Code: Good Governance and Better Regulation in the Information Age (MIT Press, 2013).

109 A Butenko and K Cseres, The Regulatory Consumer: Prosumer-Driven Local Energy Production Initiatives (Amsterdam Law School, 2015) Research Paper No 2015-31, (Amsterdam Centre for European Law and Governance) Research Paper No 2015-03, available at https://ssrn.com/abstract=2631990.

110 Loos et al, note 107 above.

111 Butenko and Cseres, note 109 above, p 30.

112 In the energy market, for example, the emergence of prosumers is likely to have far-reaching consequences. They impact upon sustainability (prosumers use solar panels to generate electricity), competition in the energy market, contractual relations between the prosumer and the operator of a grid, and potentially also international relations between countries concerning energy trade. For an overview and a research agenda, see R Leal-Arcas, F Lesniewska and F Proedrou, Prosumers: New Actors in EU Energy Security (Queen Mary School of Law Legal Studies) Research Paper No 257/2017, pp 33–34, available at https://ssrn.com/abstract=3010714.

113 Brown and Marsden also correctly point out the need to include prosumers in policy-making processes, eg through civil society representation. See Brown and Marsden, note 108 above, p 202.

114 See page 17 above.

115 A plea for monism is made by Hesselink, note 56 above, pp 244–47.

116 See eg Brown and Marsden, note 108 above, p 202.

117 In which case judges are obliged under EU law to ex officio assess the unfairness of terms in the contract. See Océano Grupo Editorial SA v Roció Murciano Quintero C–240/98 to 244/98, EU:C:2000:346.

118 Riefa, C, Consumer Protection and Online Auction Platforms. Towards a Safer Legal Framework (Ashgate, 2015), pp 125 ff .

119 It has been suggested in other contexts that competition—with an eye to innovation—can sufficiently take place if a small number of top players in the market engage in choice. This is the ‘informed minority’ argument attributed to Alan Schwartz and Louis L. Wilde. See Schwartz, A and Wilde, LL, ‘Imperfect Information in Markets for Contract Terms: The Examples of Warranties and Securities Interests’ (1983) 69 Virginia Law Review 1387 ; Schwartz, A and Wilde, LL, ‘Product Quality and Imperfect Information’ (1985) 52 The Review of Economic Studies 251 .

120 Giesela Rühl has relied on this mechanism as part of an argument in favour of regulatory competition between national legal systems. See Rühl, note 84 above, p 68. In that context, however, the effect of the use of rules by a sophisticated minority is also dependent on the subsequent adoption of such rules by legislators.

121 Of course, questions of legitimacy arise in relation to private regulation. An in-depth discussion is beyond the scope of this article. For an overview of the debate in this field, see Calliess, G-P and Zumbansen, P, Rough Consensus and Running Code (Hart Publishing, 2010), pp 130 ff , referring in particular to the concept of ‘affectedness’ developed by David Held which ties any assessment of democracy to the quality by which a group has been affected by a decision. See Held, D, ‘Democratic Accountability and Political Effectiveness from a Cosmopolitan Perspective’ (2004) 39(2) Government and Opposition 364 .

122 See eg N Gandal and P Régibeau ‘Standard-Setting Organisations. Current Policy Issues and Empirical Evidence’ in P Delimatsis (ed), The Law, Economics and Politics of International Standardisation (Cambridge University Press, 2015), pp 394, 402, who state: ‘Not surprisingly, the more expertise a given member [of an SSO; VM] has and the more human capital that member is willing to invest into the process, the greater the influence on the design of the standard. Accordingly, large intellectual property holders and large potential users will generally have significantly more weight within the SSO than smaller firms or than final consumers’.

123 In Europe, the European Association for the Co-ordination of Consumer Representation in Standardisation AISBL (ANEC) represents consumer interests in standardisation processes.

124 See eg OECD Competition Committee, Standard Setting (Policy Roundtables, 2010), available at https://www.oecd.org/daf/competition/47381304.pdf.

125 Van Leeuwen’s conclusion that the tool is underdeveloped, despite the European Commission’s rhetoric, therefore appears to be rapidly overtaken by the emergence of projects concerning the standardisation of services and service contracts in national systems as well as at EU level.

126 COM(2016) 357 final, pp 3–4, and COM(2014) 500 final, p 3. See also Schulte-Nölke, note 67 above, p 137; C Busch, ‘DIN-Normen für Dienstleistungen – Das Europäische Normungskomitee produziert Musterverträge’ (2010) NJW 3061.

127 Michaels, note 1 above, p 158.

* I thank Hans Lindahl, Eric Tjong Tjin Tai, and an anonymous referee for comments on an earlier version of this article.

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