Theoretical reflections on the public-private distinction and their traces in European Union law

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URI: http://hdl.handle.net/10900/101582
http://nbn-resolving.de/urn:nbn:de:bsz:21-dspace-1015828
http://dx.doi.org/10.15496/publikation-42961
Dokumentart: Aufsatz
Date: 2012
Source: Oñati Socio-Legal Series, 2-4, 2012
Language: English
Faculty: Kriminologisches Repository
Department: Kriminologie
DDC Classifikation: 340 - Law
Keywords: Privatrecht , Öffentliches Recht , Europäische Union
Other Keywords:
European Union law
evolution of European Union law
public-private distinction
role of private parties in European Union law
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Abstract:

From its inception, EU law has been organised with (economic) integration as its guiding paradigm. A public-private distinction as it is known in many civil law countries has never been a characterising feature of EU law. In the absence of such a divide in EU law, the public and the private sphere interact differently. First, the attempt to strike a balance between the state and the market reflects the struggle for a delineation between public and private power. Second, the evolution of the personal scope of EU internal market law and fundamental rights increasingly involves private parties at both sides. Third, the emergence of European contract law has led to conceptual clashes between the international trade law paradigm and the public-private distinction in the tradition of civil law countries. It will be argued that EU law scholarship and legal practice will have to re-conceptualise the role of the individual and private parties as subjects of the law, bearers of rights and addressees of obligations in order to flesh out what is known as the private law element in many national legal cultures.

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