Private Regulation in European Private Law

Abstract

European private regulation pre-existed European Community law and co-exists with it today, giving rise to different forms of complementarity with European legislation. While in the initial stage of jus commune, a stronger role for co-regulation characterized private law, the formation of national legal systems, and in particular the era of codifications, changed the complementarity between public and private law-making. Codifications reduced cooperative law-making but increased the role of adjudication as the vehicle through which customs and practices accessed European continental legal systems. The rise of the regulatory State and the more recent transformations of regulatory strategies have brought up new forms of co-regulation with increasing trends of negotiated rule-making, affecting legal integration through different institutions. In this article the place of private regulation in the evolution of EPL is explored. It affects, in different ways, the whole domain of private law, from contract to property, from civil liability to unfair competition. Often European harmonised private regulation has anticipated European legislation, for example in the areas of unfair commercial practices, internet, financial markets. In other cases, forms of mutual recognition of private regulations have occurred. While the modes through which private regulation has contributed to European legal integration differ, it is quite clear that it has played and will play a significant role.

Keywords: regulation, self-regulation, European private law, contract, unfair commercial practices