THE PRESENT – ASSESSMENT

The demand for EU private law

This book has looked at EU law from the viewpoint of relations between private persons, i.e. individuals and corporate entities. The selective approach takes account of the peculiar significance of law for private relations. While public action is under the rule of law always embedded in, and determined by, legal rules, private relations are primarily governed by other motivations: commercial convenience, considerations of morality, private dislike or sympathy, financial benefi ts, religious belief, individual plans, etc. For the conduct of private relations, law is not more than a backstop needed when the non-legal methods of interaction – such as recognition, the exertion of social and/or economic pressure, agreement and compromise – turn out to fail. This does not confi ne the impact of law to an ex post perspective; legal rules are also needed to shape, from an ex ante view, the framework for conflicts that may eventually emerge. Alongside the other motivations mentioned above, they may also set incentives for private action. But the steering, limiting and corrective function of law is much weaker in private relations than in respect of public action.

The inherent difference between private or horizontal relations and vertical relations opposing the individual to the state has brought about the basic distinction of private law and public law as a structure intrinsic to legal orders throughout history. It is also increasingly visible in the law of the European Union. While the Treaties hardly refer to private law as a possible field of EU activities, private law is in substance nevertheless existent in EU law, and, what is more, it has expanded over the years and is still growing. The EU portion of the overall legal reference system is continuously increasing while the share of autonomous national law of the Member States is shrinking. The Union’s program aiming at integration through the mutual opening of markets by the Member States depends on the willingness of private actors – undertakings, workers, consumers and other individuals – to make use of the opportunities offered by the internal market.