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 2: Regulatory Strategies on Services Contracts in EC Law

Hans-W. Micklitz


Hans-W. Micklitz 1. PURPOSE AND BACKGROUND The idea of the chapter is to show how and by what means the European Community is attempting to realize its overall policy to establish and accomplish the internal market for services, and more particularly how this policy which is meant to open up markets affects the contractual relations between the supplier and the customer, whether the latter be a professional or a consumer. This implies that contractual relationships at the primary market for financial services are excluded from the scope of analysis.1 The European Community relies, as usual, on a piecemeal approach. There is no such thing as a uniform strategy, if one sets aside the internal market rhetoric. Regulation of services is very much following different patterns in different areas of the economic sector. I have chosen a particularly European perspective, as the European Community has become by far the most important regulator. Member States are more or less in a retroactive position. It is still the White Paper on the Completion of the Internal Market2 which legitimizes the initiatives of the European Commission. European law defines the bottom line of the respective markets for services. National legislators have to implement the European rules. They benefit from a different degree of leeway with regard to shaping contractual relations. However, the chapter does not intend to give a full picture of the Member States’ regulatory strategies to confirm or to escape European boundaries. It is first and foremost meant to systemize the existing...

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