Final Report Summary - ERPL (European Regulatory Private Law)
In the shadow of the failure of the European civil code project, as a transplant to the EU level of national conceptions and instruments of private law, the EU has been actively implementing regulation (public, private and co-regulation) that blurs the boundaries between national and EU law, public law and private law, or even binding rules and recommendations or standards. Such interventions often have a sectoral character in fields such as electronic communications, postal services, energy, transport, financial services, consumer law and Internet regulation. They are typically justified as measures to create and govern the EU internal market, but also have a strong if not always immediately visible impact on private law. While in both political and academic discourse, the distinctiveness of national systems and legal categories in private law is emphasized, the research highlights that the EU is gradually establishing rules and institutions which are self-standing so that it is possible to speak of a self-sufficient "European Regulatory Private Law": a private legal order with a strong regulatory character.
Theoretically, the EU serves as a laboratory for the development of a post-nation state private legal order, tentatively called post-classical private law. The incomplete architecture of the European legal order should be understood as an advantage allowing us to study the ongoing transformations of nation states through the prism of the emerging European regulatory private law. One might ask whether such European advantage is a current reality or a promising potential. Its potential lies in the disclosure of the post classical private law, but this requires a different view on Europe, one which changes perspective. Such a perspective has to focus on the achievements of the EU as a unique construct, which is not a state and which more than likely will never be a state or a federation of states in the Westphalian sense, but which is at the same time much more than an international organisation. ERPL crystallizes and gives shape to a European advantage in legalizing transnational spaces by contrast to the often claimed American advantage in transnational lawyering (e.g. M. Reimann 2014).
Conceptually, differences in the values embodied in the various sets of rules become apparent: if national private law rules are said to be inspired by the categories of private autonomy, distributive or corrective justice, ERPL on the contrary enshrines functional ideas of regulated autonomy and access justice which both underscore and support the laboratory character of the European legal order. Access justice materializes the theoretical chance into a realistic opportunity, lays down procedural requirements for proper law enforcement and provides for an institutional design that allows for participation of civil society. In ERPL autonomy is more strongly linked with all various forms of regulation and competition, which both extend and constrain it. Thus, autonomy is less wedded to the idea of personal freedom and is instead the result of a functional design that turns the market into a platform for simultaneously promoting substantive autonomy and social problem-solving. This creates the potential for conflict between rules and their underlying values, but also possibilities for dialogic interaction through institutional innovation at both EU and national level. But realising such possibilities often requires abandoning time-honoured rules, institutions and habits of thought.
Institutionally, while traditional private law is mostly legislative or judge-made, regulatory and standardization bodies decisively contribute to both the shaping and enforcement of ERPL. The process of "agencification" has proceeded in various sectors under an EU mandate with the creation of independent national agencies and their networking at EU – as well as transnational – level. This process can lead to 'self-sufficiency' in two dimensions: (i) the proliferation of private law rules with specialized sectoral focus as opposed to general and transversal ones (ii) agency and standardization networks as alternative, less formal and less scrutable settings for the creation, diffusion and even enforcement of specialized norms. Self-sufficiency need not imply full isolation of ERPL, which would likely be both impossible and dystopic. Quite to the contrary, different normative regimes under the ERPL umbrella interact in different ways with national and general legal categories. The interaction is captured by the parameters of conflict and resistance, intrusion and substitution, convergence, and hybridization examined in sub-projects on telecommunication, energy, financial services, health care and standardization as well as legal remedies.
An example helps to understand the interaction between theories, concepts and institutions. The electronic communications regulatory framework specifies both substantive law provisions and procedural rules that introduce EU mechanisms into the national context. The completion of the internal telecoms market proceeded via the establishment of a "multilayered institutional structure" (the network approach) and norm enforcement often relies on sector-specific alternative dispute resolution bodies in preference to generalist courts. In the energy sector, private law relationships are being reshaped not always through special rules, but via direct interventions by authorities into such relationships through negotiating "commitment remedies" with specific undertakings. This practice at the EU level is largely beyond court control, while national practice is more mixed. In the area of standardization of services, the legal and empirical research revealed difficulties in the process of European standardization and the application of standards in private law. While few EU standards have been adopted and applied in the services sectors studied, there has been considerable recent activity in areas where service provision interacts with product standardization that may produce convergence pressures. In collective remedies, EU law can be used strategically by national private or public actors to remove national barriers obstructing protection of the collective interest. This phenomenon has produced hybrid remedies extraneous to the tradition of certain Member States. The research suggests that the CJEU may be fashioning a type of liability for regulatory failure out of the Francovich precedent, although the extent to which such liability is re-embedded in national law and practice is as yet unclear. In all the foregoing contexts, we detect an evolution not only of substantive private law, but also in the procedures through which it is enforced, i.e. a transformation of private law enforcement.
Theoretically, the EU serves as a laboratory for the development of a post-nation state private legal order, tentatively called post-classical private law. The incomplete architecture of the European legal order should be understood as an advantage allowing us to study the ongoing transformations of nation states through the prism of the emerging European regulatory private law. One might ask whether such European advantage is a current reality or a promising potential. Its potential lies in the disclosure of the post classical private law, but this requires a different view on Europe, one which changes perspective. Such a perspective has to focus on the achievements of the EU as a unique construct, which is not a state and which more than likely will never be a state or a federation of states in the Westphalian sense, but which is at the same time much more than an international organisation. ERPL crystallizes and gives shape to a European advantage in legalizing transnational spaces by contrast to the often claimed American advantage in transnational lawyering (e.g. M. Reimann 2014).
Conceptually, differences in the values embodied in the various sets of rules become apparent: if national private law rules are said to be inspired by the categories of private autonomy, distributive or corrective justice, ERPL on the contrary enshrines functional ideas of regulated autonomy and access justice which both underscore and support the laboratory character of the European legal order. Access justice materializes the theoretical chance into a realistic opportunity, lays down procedural requirements for proper law enforcement and provides for an institutional design that allows for participation of civil society. In ERPL autonomy is more strongly linked with all various forms of regulation and competition, which both extend and constrain it. Thus, autonomy is less wedded to the idea of personal freedom and is instead the result of a functional design that turns the market into a platform for simultaneously promoting substantive autonomy and social problem-solving. This creates the potential for conflict between rules and their underlying values, but also possibilities for dialogic interaction through institutional innovation at both EU and national level. But realising such possibilities often requires abandoning time-honoured rules, institutions and habits of thought.
Institutionally, while traditional private law is mostly legislative or judge-made, regulatory and standardization bodies decisively contribute to both the shaping and enforcement of ERPL. The process of "agencification" has proceeded in various sectors under an EU mandate with the creation of independent national agencies and their networking at EU – as well as transnational – level. This process can lead to 'self-sufficiency' in two dimensions: (i) the proliferation of private law rules with specialized sectoral focus as opposed to general and transversal ones (ii) agency and standardization networks as alternative, less formal and less scrutable settings for the creation, diffusion and even enforcement of specialized norms. Self-sufficiency need not imply full isolation of ERPL, which would likely be both impossible and dystopic. Quite to the contrary, different normative regimes under the ERPL umbrella interact in different ways with national and general legal categories. The interaction is captured by the parameters of conflict and resistance, intrusion and substitution, convergence, and hybridization examined in sub-projects on telecommunication, energy, financial services, health care and standardization as well as legal remedies.
An example helps to understand the interaction between theories, concepts and institutions. The electronic communications regulatory framework specifies both substantive law provisions and procedural rules that introduce EU mechanisms into the national context. The completion of the internal telecoms market proceeded via the establishment of a "multilayered institutional structure" (the network approach) and norm enforcement often relies on sector-specific alternative dispute resolution bodies in preference to generalist courts. In the energy sector, private law relationships are being reshaped not always through special rules, but via direct interventions by authorities into such relationships through negotiating "commitment remedies" with specific undertakings. This practice at the EU level is largely beyond court control, while national practice is more mixed. In the area of standardization of services, the legal and empirical research revealed difficulties in the process of European standardization and the application of standards in private law. While few EU standards have been adopted and applied in the services sectors studied, there has been considerable recent activity in areas where service provision interacts with product standardization that may produce convergence pressures. In collective remedies, EU law can be used strategically by national private or public actors to remove national barriers obstructing protection of the collective interest. This phenomenon has produced hybrid remedies extraneous to the tradition of certain Member States. The research suggests that the CJEU may be fashioning a type of liability for regulatory failure out of the Francovich precedent, although the extent to which such liability is re-embedded in national law and practice is as yet unclear. In all the foregoing contexts, we detect an evolution not only of substantive private law, but also in the procedures through which it is enforced, i.e. a transformation of private law enforcement.