Edited by Hans-W. Micklitz and Fabrizio Cafaggi
Chapter 4: The Public/Private Divide in European Law
* Norbert Reich I. CAN WE TALK OF A ‘EUROPEAN PRIVATE LAW’? When discussing a ‘divide’ between ‘public and private’ in European law, we seem to suggest that there exists something like the classical division between ‘public’ and ‘private law’, the first referring to the relationship between citizens and the state, the second to those between (autonomous?) citizens. ‘Publicum ius quod at statum rei Romanae spectat, privatum quod at singularum utilatem’, as the Roman jurist Ulpian said.1 This model is based on a separation between the state area where political prerogatives prevail, and the private sphere where autonomous persons interact according to their own preferences, a separation which permeates, at least in the continental tradition, the division of legal disciplines and court competences. This classical model does not fit well with European, or more specifically EEC/EC/EU law. We may not know what the EEC/EC/EU ‘is’– it may be a ‘Staatenverbund’, in the terminology of the German Bundesverfassungsgericht,2 a Union of States and Peoples3 ‘united in diversity’, as the failed draft Constitution of 2004 formulated it, an institution sui generis, including certain * My thanks go to Prof. Hans-W. Micklitz, EUI Florence, and to Prof. James Gordley, Tulane University Law School, LA, USA for critical comments on an earlier draft. Responsibility remains as usual with the author. An earlier draft was presented at the 14th General Meeting of the Common Core Group, Turin, 11 July 2008. 1 Ulp. Dig. 1, 1, 1, 2, cited by Larenz and Wolf, Allgemeiner Teil des B...
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