The Regulatory Function of European Private Law
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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?
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Chapter 1: The Regulation of Services and the Public–Private Divide

Anthony Ogus


Anthony Ogus 1. INTRODUCTION The task I have set myself in this chapter is to explore the justifications for regulating services and how public and private law may, in their different ways, serve that purpose. I then consider the implications that the distinctions between private and public law have for governance in a European context, in particular how they relate to the arguments for harmonizing regulatory principles. First, however, I need to explain what is meant by the ‘regulation of services’. 2. WHAT IS THE ‘REGULATION OF SERVICES’? The concept of ‘services’ is not easy to define. For the purposes of this chapter, I take it to have the broad meaning attributed to it in the programme of the European Commission, leading to the Draft Directive on ‘Services in the Internal Market’.1 This seems to cover almost all forms of trading except the supply of goods, thus including ‘a large variety of activities, such as consultancy services, certification services, estate agents, engineering, construction, distribution, tourism, leisure and transport’2 and normally the subject of a contract between supplier and consumer. In order to make helpful generalizations about the regulation of these broad ranges of activities, we need to understand the different types of market failure and therefore the forms of regulation to which they have given rise. At the most general level, we can identify four main types of market failure:3 COM (2002) 401; in its amended form COM (2006) 160 final. COM (2002) 401, p. 5. A. Ogus, Regulation:...

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