In the current multilevel legal order, private relationships are governed by rules that have their roots in different international, European and national regimes, with a public or private law character. As a consequence, private law is increasingly confronted with European law, and faces questions on the scope and effect of European law in private law matters.
For example, when a company discovers that its competitor’s products do not comply with European product safety regulations, the question arises whether national courts must provide an effective remedy, and if so, which remedy will be sufficiently effective? Should national courts award only an injunction and ban the product from the market, or also award a claim for damages? How far does European law reach when it comes to private law matters?
Similar questions can arise in the context of consumer contracts. The European Directive on Unfair Commercial Practices aims to protect consumers against misleading or aggressive commercial practices. In deciding whether a contract has been entered into under the influence of error, a judge must assess whether the ‘average consumer’ has been misled. The Directive concerns maximum harmonization, but also states that it is ‘without prejudice to contract law and, in particular, to the rules on the validity, formation or effect of a contract’ (Art. 3). Does this mean that the consumer may also choose to invoke national contract law, in particular the rules on ‘mistake’ (dwaling), even if these rules do not use the ‘average consumer’ criterion, but oblige the civil judge to consider the knowledge of this particular consumer in these particular circumstances?
In the context of national law, such problems are traditionally approached by looking at the interests of the parties involved, and the content of their legal relationship. In the context of European law, the outcome of private dispute resolution is not only a matter of balancing the interests of the parties and respecting private autonomy, but also involves constitutional principles, such as hierarchy and supremacy.
Furthermore, European law is sui generis and does not distinguish between public and private law. Therefore, some authors consider the distinction between public and private law to be a relic from the past. Other authors consider the distinction still relevant, because European law is mainly developed under the influence of public lawyers. Private law matters, however, cannot be solved by only applying purely public law concepts.
This raises the question whether it is possible to find common ground. Could we use commonly negotiated and shared principles to address the overlap and conflict between European law and private law? And if these principles do not provide the answers, are there other methods we could use?
You are very welcome to discuss these questions with us during the workshop ‘European law and private law: meeting of the minds’ on Thursday 22 January 2015, at Leiden Law School’s ILS Conference.