The Regulatory Function of European Private Law

The Regulatory Function of European Private Law

Edited by Fabrizio Cafaggi and Horatia Muir Watt

In the context of the current debate on the desirability and process of forming European private law (EPL), this book considers one fundamental question addressing its descriptive and normative dimension: does and should EPL pursue regulatory objectives beyond market integration?

Chapter 9: Impact of the Mutual Recognition Principle on the Law Applicable to Products

Mathias Audit

Subjects: law - academic, european law


Mathias Audit I. INTRODUCTION In the main legal tradition, there is a border that is nearly impassable between the fields of public law on the one hand and private law on the other. This strict separation occurs in the theory of private international law. Scholars traditionally consider that the conflict of legal rules1 only concerns the field of private law. At a pinch, a specific public law rule would be considered as a mandatory rule within a private law dispute.2 But it is widely accepted that there is no conflict of laws between the public law rules of different states. However, this traditional point of view is now contradicted by facts, due to the particular angle of EC law. One of the main goals of European legal rules is to build an integrated market within the European territory, allowing in particular goods to move freely between the member states. This free movement of goods is supposed to promote efficiency in production because it will permit producers in different countries to compete directly with each other. From that specifically economic angle, the distinction between public and private law that exists in the national legal systems of the member states is partially, if not totally, irrelevant. National legal rules of member states are subject to the edification of the internal market, wherever they belong to one branch or the other of the so-called summa divisio between private and public law. Products are a perfect example of this challenge to the public/private law...

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