This chapter examines the relation between private regulation, effectuated through contract, and the desirability of compliance with such regulation, from the perspective of the fundamental precepts of contract law, in particular freedom of contract. It investigates what intellectual advantages can be gained by looking at the question of contractual performance as that of regulatory compliance. It observes that, unlike the contractual approach, the regulatory approach invites us to elucidate the strategic choices which states and the EU need to make vis-à-vis the enforcement of private regulatory regimes. The chapter argues that despite its limitations, it is contract law which offers a much more promising start to providing the grounds of judicial review of contracts producing regulatory effects. It is accepted, however, that the framework of contract law would have to be reformed to include more socially focused grounds for review, supplementing but not replacing the considerations of freedom to choose one’s individual goals and ability to bargain. Keywords: private regulation, freedom of contract, private enforcement, regulatory theory, review of contracts
This chapter investigates the complex interaction between EU law and national rules on compensatory remedies. It starts by explaining the problems lying behind the use of the label of ‘EU tort law’, which is not a recognised category and generates confusion unless some independent definition of the concept of ‘tort law’ is selected. The chapter proposes to define ‘tort law’ by reference to the function of the examined rules, and in particular to the function of regulating compensatory remedies. Following this definition, the chapter discusses the different ways in which EU law regulates compensatory remedies; first, by looking at EU competence to regulate compensatory remedies in its two guises, legislative and judicial, and then by examining the different modes in which the EU regulates compensatory remedies. It argues that these modes could be classified in a three-fold manner: 1) as involving complete harmonisation, 2) as involving only partial harmonisation, where national provisions constitute gap-fillers and/or provide residual rules, and 3) as involving only rudimentary harmonisation, where EU law provides merely regulatory standards and the link between their breach and a compensatory obligation is established by national law. In terms of the substantive content, the chapter looks at EU rules governing damages actions for breach of competition law, liability for damage caused by products, the Francovich remedy, damages for infringements of intellectual property rights, and the relevant rules in consumer Directives. The chapter concludes by discussing briefly the consequences of codifying private law at the EU level for the continued applicability of national rules on compensatory remedies in the sphere covered by the ‘scope of EU law’.