The Role of Competition Law in Regulatory European Private Law

Abstract

In the last years we have seen the emergence of a new methodology in European private law, which (finally) dared to shift away from a classical comparative approach to one, which takes European Union law as its proper starting point. Classical European private law scholarship has mainly been backwards looking insofar as the law of the Member States, and predominantly the old codifications, determined both form and substance of new regulatory attempts. Today, this traditional approach still remains the predominant working method of the acquis group. But recent improvements in the academic debate surrounding European private law suggest a more European approach to questions of harmonisation. Taking the Treaties, secondary legislation and jurisprudence of the ECJ as its premise, academics have attempted to extrapolate common ‘European’ principles and rules to provide desperately needed substance in the search for more coherence in the continuing harmonisation process of private law. Some characteristics should be stressed as far as this new scholarship is concerned. First, it is heavily influenced by an idea which can be called ‘Europeanisation of law through hybridisation of remedies’. Second, the methodology and reasoning on which this scholarship relies can only be explained on the basis of the European Economic Constitution. Alongside these main aspects we also find a more functionalistic approach as to how modern private law should be shaped in general. Last, new forms of governance allow for more flexibility in the law-making process, also in view of the actors involved in that process. It is against this background that this contribution seeks to demonstrate in what way competition law can serve as a tool to directly or indirectly influence and regulate private law in the Member States; and, more generally, how it can further the Europeanisation of law. In terms of methodology, I mainly rely on the idea that developments in European private law can be explained by aid of those areas which lie at the periphery of classical private law but at the core of the law of the internal market. To this end, it is necessary to first and foremost understand when and how competition and private law interact in the Union. The aim is to identify both instances in which competition and private law overlap substantially and in what way they complement each other.