Introduction
In 2017, I taught a seminar at the European University Institute on ‘Transnational Economic Law and its Political Economy’.1 The idea was to confront different concepts, inter alia Polanyi and Hayek.2 I started from the premise that the researchers would sympathize with Polanyi, the advocate of a politically embedded economy and would take a very critical stand on Hayek, the advocate of neoliberalism. In order to test their preconceptions, I chose a couple of key sentences from Hayek without telling them who the author was. We discussed individual liberties and, at the end of the class, I asked them whether they subscribed to what the author said about liberty. They all approved and were rather irritated to find out that they had become followers of Hayek’s neoliberalism; then even shocked when confronted with Hayek’s critique of left-wing duplicitousness,3 so obviously documented in the widespread ambiguous behaviour of young and older scholars – using low-cost airlines and defending labour rights. I will not hide that I shared their perceptions.
What can be taken from this little anecdote? On the one hand, there is a growing criticism of the capitalist economy, accompanied by an even louder call for the ‘state’, which should intervene to tame capitalism. The EU is heavily criticized, not least due to its strong market focus, which is blamed for undermining national democracies and deepening injustice whilst lacking the democratic credentials and the political power to politically re-embed the Internal
The European avenue, politically and academically, points towards a gradual transformation of the market order through setting incentives for the economy, but including the individual. It goes without saying that the foundations of the European economy are again on the agenda. Here we are back to the ‘economic constitution’ of the EU, its ordoliberal roots, its move away from ordoliberalism in the Single European Act and towards what is simply called the ‘neoliberal’ shift crystallized in the Lisbon Summit 2000, even in academic writings all too often without clarification of what is meant by neoliberalism. This contribution takes for granted that the reader is familiar with the writings of the advocates and the literature on neo- and ordoliberalism and its impact on the European economic constitution.7
Most of the century-long debate has been concentrating on the relationship between the state and the market, and who has or should have primacy over whom: the state over the market or the market over the state. In the European context, the debate runs around the Internal Market and the EU. My take is different: I want to look at the interrelationship between the various economic models and the society. This requires a clarification on how I use the term
For the sake of the argument, I will use the rise of European private law as a benchmark and demonstrate how the EU is shaping or trying to shape a European Society through the making of private law. The scope of the analysis is however restricted: it does not deal with citizen rights or with the relationship between democracy and the economy. This would be a different contribution, even if there is some overlapping when theories are invoking ‘economic democracy’ as a model type. In order to avoid confusion with underlying concepts, I will be using ‘European Society’ throughout the text. One additional clarification is needed. National societies exist. They are a given societal reality. This is different when it comes to the ‘European Society’. In sociological terms, there might be something like a European society in the making or at least different fragmented societies. Providing evidence would require a deeper empirical analysis of the societal facts. This will not be my task, even if the ecj in
The contribution will proceed as follows. In the first part, I will browse through the making of the EU so as to demonstrate that the EU originally rested on the national societies which were holding the EU together (1.1.). With the Single European Act in 1986 (1.2.) and the Lisbon Summit in 2000 (1.3.), the EU began to actively and strategically intermingle with national societies, to transform national societies and to work on the establishment of what could be a European Society in the making – which is governed by and through law. Here I am relying on previous findings, which are adjusted and deepened with regard to the relationship between private law and the European Society (1.4.).14 The first part concludes with an analysis of the European Society as it stands today by and large as a normative project, a kind of a market society, which is – this is the claim – a mirror image of the type of Economic Constitution the EU is promoting, but where the European Commission (1.5.) and the European Court of Justice (1.6) are nevertheless playing different roles. The second part contrasts the European society with different theoretical models and lays bare the difficulties of a collectively managed European Society. These theoretical models focus either on the role of the individual in a liberal polity and a liberal private law, such as Wieacker’s common heritage (2.1.), or the private law society of ordoliberalism (2.2.) and its democratic foundations (2.3.). In my conclusions, I am referring to the century-old call for the democratization of the economy and the potential of Rechtsverfassungsrecht (the ‘law of constitutional law’) to find a way out of the tension between a collectively managed European Society and the key role of the individual in a liberal polity.
1
The recovery of the states, economies and peoples after the Second World War went hand in hand with the ‘European integration’ project: peace and prosperity through trade under a common institutional umbrella that domesticizes the destructive power of the war industries on both sides of the Rhine. The idea of European integration rested on two sound pillars, the market for the EU and the Social for the Member States.15 The EU was built on nation states that autonomously decided to engage into the joint project of European integration and that guaranteed smooth cross-border trade through the interaction between their national legal orders. The post-Westphalian state nation, which turned into the 19th century nation state and the respective national private law orders underpinned the distinction and stabilized the EU. Legal integration through the market was counterbalanced by political integration in intergovernmental fora.16 No particular room for a European Society had been foreseen. Nonetheless, it was presumed to exist much more in the commercial than in the private law environment. This is, in Wieacker’s language,17 the common heritage that all European people share. The EU was designed as an economic and a political space.
The first move towards a European Society made through law started with the rise of the ‘Social’ in the Member States.18 The post-war period brought prosperity as well as social and political stability. The common market worked for the benefit of the Member States and the European peoples. Increased choice was equated with a better life and capabilities, which were viewed as a valid currency of justice in the EU.19 The ‘Social’ in the Member States reached a new peak, first by stabilizing labour relations, later in the consumption society
In the aftermath of the fall of the Berlin Wall and the collapse of communism, the post-war idea of a United States of Europe was revitalized through the attempt to build a European Society through a European Constitution and a European Civil Code. To achieve this grand vision, Wieacker’s common heritage (legalism, intellectualism and personalism) of Europe was mobilized to
The second move took a very different turn. It rested on instrumentalization of the law, but no longer in order to build a social Europe, but to place the EU in the global environment and to give the model of the European private law and the European Society a different twist. Three major documents were constitutive for what might be associated with the transformation of the European legal order into a neo-formalistic order: the Lisbon Council 2000, the Constitutional Charter 2000 and the European Governance 2002. All three together laid the ground for a particular understanding of the role of private law in the overall exercise of building a European Society.
‘The Presidential Conclusions’ of the European Council in Lisbon March 2000, run by the heads of the then 17 Member States (without the ten new Member States and without Croatia), were claiming to respond to “a quantum shift resulting from globalisation and the challenges of a new knowledge-driven economy”.22 Economic efficiency and social inclusion became key paradigms for the new millennium.23 The second document, formally unrelated, but politically strongly interrelated with the Lisbon Council, is the Charter of Fundamental Rights, adopted in December 2000 by the European Parliament, the Council and the Commission. Economic efficiency is to be counterbalanced through fundamental and human rights. The rights holder is characterized by their representativeness.24 The third document is the 2002 White Paper of the European Commission on ‘European Governance’, meant to deal with
1.1 The EU without a European Society
The European Union was set up in 1957 and established a common market, based on four freedoms and competition law. It laid down the structure of what has been termed, particularly by German lawyers, the European Economic Constitution.26 What is missing in the Treaty is private law or, to put it in the language of ordoliberalism, the private law society. One needs to dig deep into the history of the EU to find the explanation. The Schuman Declaration of May 1950 is only 132 lines long.27 Schuman refers to civilization but not to democracy.28 The ‘peace through trade’ formula embraces a common European history, sparked by centuries’ long interconnectivity of states and commerce. Schuman implicitly presupposes the existence of a national private law, which is organizing trade. P. Pescatore29 has analysed with masterly precision the differences between international law and the European law of integration. Without the existence and without deep reliance on the viability of nation
Whilst the Member States relied on political conventions to build a legal framework for a European international private law, in order to define the competent court and to identify the applicable law, the ecj entered the legal arena with a big bang in the early 1960s already. The ecj30 turned an international treaty into a ‘genuine legal order’, characterized by supremacy of EU law over national law and by the direct effect of EU law to the benefit of individual parties.31 Private parties, the holders of the rights and their recipients, are legally entitled to strike down national laws and regulations, which would hinder the four freedoms. This was a formidable invitation to turn private law conflicts into preliminary references to be decided by the ecj. The Court built a common market without quantitative restrictions and without barriers to trade. This was to the benefit of business, which enjoyed more space in the shaping of their private relations, and to that of citizens who benefitted from the opening up of the national markets to an ever more increasing choice. Not surprisingly, scholars read the four freedoms as approval of private autonomy as the underlying parameter of the EU legal order – a decisive step in legitimizing the emergence of a law-made European Society.32 The huge importance of the Court’s case law on market freedoms and competition law in the building of a ‘private law society’ in ordoliberal language has attracted amazingly
The social dimension of private law, ‘The Social’ to use the language of Duncan Kennedy,35 did not really play a role at that early stage, at least not at the EU level. The European Economic Community had been established on the basis of a functional separation of powers between the eec and the Member States. The eec was granted enumerated powers only as far as they were needed to establish the Common Market to overcome economic nationalism. The making and the development of social welfare systems and of social justice was left to the Member States.36 Re-distributive policies were to remain subject to national politics, with the exception of the Common Agricultural Policy (cap).37 This does not mean that the European Union did not attempt to get involved into social matters and to give the emerging European private law, built around ‘market access’ and the two conventions on jurisdiction and the applicable law, a social twist. Legislative measures initiated by the European Commission could only pass with the unanimous agreement of the Member States in the Council, according to Art. 100 ec (now Art. 115 tfeu). The European Parliament had no decision-making power until 1986. Despite these tight restrictions, the European Regional Development Fund was set up in 1973 and started operating in 1975. In 1974, the European Commission developed a social policy programme38 and, in 1975, a consumer policy programme.39 Both were unanimously approved by the Council of Ministers and
The EU is not looking at the European Society as a whole, but is concentrating on two social groups: workers and consumers. Society is split into different addressees with different interests and different rights and obligations. Quite a number of directives were adopted in both fields: in labour and non-discrimination law, Directive 75/117 on equal pay40 and Directive 76/207 on equal access to employment,41 in consumer law Directive 85/374 on product liability, Directive 85/577 on doorstep selling42 and Directive 87/102 on consumer credit.43 Those directives have been only the starting point for a much stronger move into social regulation after the adoption of the Single European Act in 1986.
1.2 The Short Flare-up of an Emerging European Society with a Social Face
The famous White Paper on the Completion of the Internal Market44 developed under the presidency of Jacques Delors provided the ground for the adoption of the Single European Act. The Act has been a wonderful combination of French intellectualism and British pragmatism. The overall message addressed to the Member States was that the realization of the Internal Market could not be achieved without the establishment of minimum standards to protect workers and consumers. Looking back through today’s glasses, one may wonder how it was possible that Member States agreed to such a far-reaching paradigm change in the mid 1980s, which reshuffled the distribution of economic and social competences between the EU and Member States that underpinned the Treaty of Rome.
The Single European Act of 1986 has been understood as a turn away from ordoliberalism. In the understanding of Mestmäcker, the sea has substituted the rule-based Treaty of Rome, built on the four freedoms and competition law, through a body of rules full of vague formulas and full of delegated competences that open up pathways for the politicization of the economic constitution.47 Joerges48 agrees with Mestmäcker that the sea has fundamentally changed the economic constitution and that the ordoliberal concept is fading away. His angle is very different, though, as he criticizes both the lack of a ‘social market economy’ (soziale Marktwirtschaft) and, more importantly, the missing connection between the economic constitution in the ordoliberal meaning and economic democracy,49 to which I will come back in the second
Nevertheless, there remains until today a strong imbalance in the degree to which labour and consumer law were europeanized. Rödl51 concludes that, with regard to labour law and policy, the higher the social relevance, the lesser developed are the EU competences. The law on employment contracts and collective labour law remained, by and large, in the hands of the Member States, perhaps with the remarkable exception of non-discrimination law.52 This might be related to the difference between product and process regulation. The EU legal order is built on facilitating exchange of goods and services, but does not at least in principle touch upon the conditions under which the products and services are manufactured. The differences in the production costs form an integral part of the economies of scale which Member States may use as a competitive advantage. The picture looks different with regard to consumer law. The competence rules sufficed to ‘rescue’ consumer law, which had lost ground together with the decline of the welfare state.
1.3 The Move Towards Economic Efficiency
The Lisbon Council 2000 marked the break-even point in the further development of the European legal order in general, and the social in particular. It is here that the EU developed its rhetoric on the EU becoming “the most competitive and most dynamic knowledge-based economy”. The Lisbon Council 2000 must be regarded as the contemporary backbone of EU policy, at least the one that is favoured and advocated for by the European Commission in its ongoing attempts to use its limited competences in the field of private law to promote the building of a European society. Economic efficiency governs the shift from minimum to maximum harmonization in EU consumer law, underpins Open Method of Coordination (omc) in labour law and made its way via the ecj into competition law, albeit not coherently.56
Through the 2002 White Paper on European Governance, the European Commission generalized the overall idea behind the omc to use political cooperation outside treaty competences. The debate reached the European Civil Code project in that leading academics promoted omc as a possible alternative to the European Civil Code project.65 One of the key figures was the late Advocate General Walter van Gerven who initiated the Ius Commune project. Contrary to the prevailing opinion that favoured top-down regulation via the adoption of a European Civil Code or something similar, the Ius Commune project advocated a bottom-up approach, through convergence via denser co-operation and exchange between courts beyond national borders.66 A whole series of textbooks have been published, none of which received funding from
The last document that underpins the further development of European private law is the Charter on Fundamental Rights. The Charter is meant to counterbalance the efficiency paradigm through the values enshrined in fundamental and human rights. The integration of the Charter into the Treaty of Lisbon boosted the preparedness to give whatever conflict came before it a human rights and fundamental rights outlook. Today, more than 50% of all ecj cases are said to contain a reference to the Charter.69 The ongoing ‘constitutionalization’ of European private law70 through fundamental and human rights has led to a fierce academic debate on its added value to promote social rights and social justice.71 So far the ecj has used the fundamental rights rhetoric only if the European private law acquis failed to get to grips with a larger
1.4 European Private Law and the European Society
There is no doubt that the EU is affecting the European Society through private law harmonization by means of secondary EU law. But what kind of European Society is the EU producing, factually and normatively? The factual side refers to the effects of EU private law on the people. Let us imagine that the European Commission would cast a qualitative study to interview people in Europe. The answer might look very different depending not only on the addressees: business, workers, consumers, but also on the context – the economic and social environment – into which such a survey would be put. The members of the European University Institute who are enjoying the benefits of mobility can hardly be compared to workers who lost their jobs through the relocation of the product site due to lower labour costs. The case law of the ecj provides an insight into the multi-faceted reality of EU litigation. Normatively, the answer might be easier, just be pulling together the bits and pieces of European private law.
There seems to be unanimity in scholarship that the opening up of national markets through the ecj via the four freedoms and competition law unfolded the strongest impact on national societies and the European Society. Whilst litigation is seemingly one between a private party and a nation state, fighting over national rules as barriers to trade, there is usually a private law conflict behind.73 Doing away with non-tariff barriers to trade promoted the consumption society, one of a nearly unlimited choice of products for European consumers. The key player in granting access to the European market has been the European Court of Justice, as it has been emphasized by Pieter Van
The European Society the EU is promoting and that the ecj is implementing through market access is one where consumption seems to be the ultimate objective to promote growth. Neither the EU institutions nor the Member States care much about the societal impact of lifting barriers to trade and eliminating legislation that provided benefits to smes:75 the vanishing of small shops in cities already from the 1970s on, the ever-growing number of malls which empty cities, the equal treatment of online and offline business which accelerates the decline of small shops, the collateral damage which occurs through the opening of markets, with EU citizens and non-EU citizens suffering from physical harm without there being European-wide acceptable liability standards. The pip saga on defective breast implants or the defective heart valves demonstrates paradigmatically that the unconditional market access even for potentially dangerous products such as medical devices and vaccines is not compensated for by appropriate means of market closure.76
In Cowan,77 the ecj had recognized that also recipients of services might invoke the right to strike down national legislation that establishes barriers to trade. However, those recipients, the consumers and customers, did not make use of this pathway in any systematic manner. There are quite a number of discriminatory national rules that consumers as potential service recipients might like to strike down. Cowan involved discriminatory compensation of only French victims of violence in the subway. Other cases dealt with discriminatory
The social regulation, be it consumer, labour or non-discrimination law, is meant to compensate for the potential risks the consumers, the workers and the discriminated are suffering from the consumption society. By way of secondary EU law, adopted on the initiative of the European Commission with the support of the majority of the Member States, the EU created a dense network of European rules, which need not be rolled out again. The addressees of these rules are not European citizens, but citizens as consumers or workers or those suffering from discrimination. It is therefore not surprising that the European Commission merged consumption society with citizenship and created the citizen consumer, the citizen worker, the citizen employer.79
The regulatory approach is fully in line with the open market rationale, but it tends to segment the society. If citizens do not fall into the respective legal category, they remain outside the scope of application and might suffer from potential disadvantages – or not. That is why the notions of consumer, worker or the non-discriminated are one of the legal and political battlefields. It is far from being clear how far the full harmonization approach reaches when it comes to the definition of the addressee. Legal uncertainty and disagreement exist among the Member States as to whether smes, precarious workers, collective entities, non-profit organizations are covered by the notion of consumer.80 Horizontal rules on consumer contract law are complemented by vertical ones in the regulated market of banking and finance, energy, telecommunication and transport. In the aftermath of the Single European Act, the EU liberalized and privatized state monopolies established competitive markets
Before and after 1990 the European Commission relied mainly on secondary EU law and its instigative power to build a European Society. The European Society is being understood as an object, which has to be formed and shaped through law. There are few attempts to activate civil society organizations to look after the interests of the citizens. Shortly after the decision at the Copenhagen Summit to encourage former communist countries in Central and Eastern Europe to join the EU, the European Commission undertook a serious effort to involve non-governmental organizations in the building of a European Society through collective law enforcement.81 The short flirt with non-governmental organizations was quickly replaced by a trust in national administrative bodies – what became known as ‘agentification’.82 To be clear, the European Commission also co-funds the Bureau Européen des Organisations des Consommateurs (beuc), an umbrella organization established by national consumer organizations. beuc is involved in law making and co-ordinates law enforcement at the national level. The Directive 2018/1828 on Representative Actions enables Member States to grant beuc legal standing in cross-border litigation.83 However, statutory enforcement agencies remain the primary addressee of political and legal action.
The regulatory mechanism gained momentum under the heading of ‘co-regulation’. The EU legislature defines binding legal requirements in secondary EU law, which are concretized through non-binding technical standards elaborated by the European Standard Bodies. Compliance with European technical standards documented through the ce mark, however, ensures access to the Internal Market. The European Commission has granted non-governmental organizations the status of an observer.85 The five current EU proposals on the legal framework of a digital economy and a digital society rely heavily on technical standards which have to take into account the Charter of Fundamental Rights. The ever denser net of existing and future technical standards could be understood as a contractual underground on which businesses are building their economic transactions across Europe and which are, legally speaking, coming ever closer to a new form of standard terms.86
1.5
It looks as if the European Commission and the ecj have a different concept of and approach to the European Society. The European Commission speaks via secondary EU law predominantly to national societies in Member States and to the imaginary of a European Society, which should be created through a common platform of rules, whereas the European Court of Justice speaks, through the preliminary reference procedure, first and foremost to the individual in the imaginary European Society and secondly to the national individual behind the litigation.
In an EU-driven full harmonization perspective, national societies have to serve the rationale of the Internal Market.87 Those societies should be enabled to form a European Society through the use of fully harmonized rights and remedies. The individual vanishes in the imaginary of a European Society. It is not so important what the individual thinks and does, but whether the overall long-term effect complies with the objective of the Internal Market rationale.
Putting such an approach to the extreme, national private law orders must lose importance in the legislative process. This is indeed what can be observed. The way in which the European Commission understands and interprets efficiency does not leave much room for societal realities of a heterogenous European society. The strong focus on European Society building through fully harmonized private law rules runs the risk to transform the imaginary of a European Society into a fiction, disconnected from societal realities.88 The Better Regulation Approach requires to base new legislation not only on an efficiency but also on an effectiveness test. The economic rationale – efficiency – should then be complemented by the societal rationale – effectiveness. Measuring societal effectiveness is much more complicated than measuring economic efficiency, at least in the way the European Commission does. Ideally, effectiveness requires a two-tier approach, looking into the impact of the envisaged legislative project on the national societies and the impact on the individual. The methodological tools are societal indicators89 and case studies. The
1.6 The ecj and the Managed Civil Society
How is the ecj dealing with the societal dimension? Is the ecj speaking in the preliminary reference procedure to a European Society or to the individual or to both? And to whom exactly is the ecj speaking – is it the national society where the case is coming from, the national societies of all Member States, the European society – or is it, much narrower, a particular community – the societal entourage of the respective case? I will not open that box and instead speak of societal sub-groups.90
The preliminary reference procedure has been subject to extensive empirical and theoretical research. What matters is the double perspective: the national referring court is seeking an answer which could help it to decide the national conflict at issue (the vertical dimension). The ecj, though, has no jurisdiction to make a final judgment; it speaks to the other EU institutions, Member States, their governments, their courts, practicing lawyers, European legal scholarship and the people, the European citizen (the horizontal dimension). The ecj finds itself constantly oscillating between the two – trying to be ‘useful’ for the referring court and developing the EU law far beyond the concrete individual circumstances.91 In order to understand the Court’s attitude, it is necessary to draw a distinction between references, which affect primary and secondary EU law and which address the individual or a societal sub-group as a collectivity.92
The key difference between primary and secondary EU law is horizontal direct effect. Contrary to primary EU law, the parties to a private law conflict base their rights and remedies on EU directives. The difference matters when
I have argued elsewhere that the individual before the ecj is a ‘mandataire’, using Demogue’s terminology, representing the collective interests of a particular societal group.93 Such an understanding blurs the line between the individual-individual and the individual-mandataire. The difference between primary and secondary EU law matters. Whilst the individual in a classical market freedom conflict could – but does not have to – be a ‘mandataire’, due to the direct effect of the market freedoms, an ecj judgment affects without further ado the two (or more) private parties standing behind the conflict. The same rationale applies wherever the ecj has given primary EU law direct effect. Outside the market freedoms, the direct effect of Art. 157 tfeu on equal pay is certainly the most prominent extension of EU law into private law. Secondary EU law contains more leeway for national courts to concretize the vertical effect of the ecj judgment on the two conflicting parties, standing behind the conflict. The result is again a certain bias in the way the ecj addresses societal sub-groups. In primary EU conflicts, the individual person, the businessperson or the discriminated stands side by side with governments and national courts. If the conflict turns around the interpretation of a secondary EU conflict, the mandataire dominates. The individual-individual takes a back seat. Somewhat overstatedly, one might argue that the Court speaks, in primary EU conflicts, to a societal subgroup composed of individuals, whereas, in secondary EU conflicts, the Court speaks to the collectivity of all consumers, in line with the legislative intention. However, Candida Leone convincingly demonstrated that the ecj is about to re-establish the individual autonomy of the consumer in
The other even more complicated issue is the handling of collective entities as plaintiffs. In particular, environmental organizations have undertaken several attempts to use Art. 263 tfeu as an appropriate basis to claim the annulment of unlawful decisions. The restrictive interpretation of Art. 263 tfeu which bars civil society organizations from getting access to the court as a legal entity which represents social interests has been subject to extensive debate. The only way of civil society organizations to bring cases before the ecj is via the preliminary reference procedure. Whether that is possible or not depends on national procedural law. But even in the realm of national law, the ecj set boundaries when EU rules on jurisdiction are affected. In Schrems95 the ecj refused the plaintiff to act also on behalf of other potentially affected customers who had assigned their rights to him so as to give more weight to the complaint against the Irish Data Protection Authorities. The ecj offers a certain way out by way of public interest litigation, where the societal sub-groups of consumers, workers or environmentalists choose the appropriate plaintiff, who fulfils the national standing requirements or who may benefit from a right or remedy under secondary EU law directly.96 Via the rather restrictive approach, it looks as if the ecj is primarily speaking to the respective national societies from which the conflict originates. The vertical ‘silosization’ reduces the potential cross-border effect on other national societies.
The handling of collective agreements through the ecj deserves special treatment, not least because of the broad societal effects that result from collective private regulation and collective private action. Collective agreements/action may unfold horizontal direct effect of primary EU law. Walrave, decided in 1974, set the tone.97 In Bosman98
The more EU law broadened the horizontal direct effect, the more obvious the societal dimension showed up. What Bosman, Angonese103 and Olympique Lyonnais104 have in common is that workers mobilize the free movement rights in order to strike down collective private agreements, which are either established by private organizations that bear a quasi-statutory character (Bosman, Olympique Lyonnais) or by the states themselves (Angonese). Viking, Laval, Aget Iraklis and Alemo Herron105 also fit into that picture, although their perspective is different.106 There the freedom of establishment is invoked by companies to challenge collective agreements or collective activities such as a strike.107
The impact differs considerably in the concerned parts of the European Society. On the one hand, there is Bosman which changed the world not only of football but of team sports far beyond the EU.109 The impact is huge and is paradigmatic for EU law, which opens up markets to establish a transnational, if not international, professional sports, but which does not take into account the unintended long-term impact on the society as a whole. The society has to adapt to the societal consequences for good or for bad. Viking, Laval and Aget Iraklis, on the other hand, worked as a barrier to the development of a transnational sub-group of workers. Instead, the judgments function as deterrence for trade unions as the ecj is seen as a body which endangers the status quo of collective worker rights instead of promoting them.110 Again it looks as if there is no such thing as a European society, but different strands around different economic sectors and policy fields.
1.7 Intermediate Thoughts
What would the researchers at the eui say to the ‘efficient, constitutionalized and collectively managed’ European city, to the pressure the European Commission exercises through full harmonization that outplays the individual, and to the European Court of Justice who is about to bring in the individual and be it through the backdoor and ex post? I guess they would join forces with the political intention of the European Commission, provided they subscribe to the political goal it wants to achieve. They might even sympathize
2 The Way Ahead (Re)-Establishing a Broader Civil and Democratic Society
The analysis of the EU legislature and the ecj amply demonstrate the efforts to shape a European Society through private law making. The EU might have started from the premise that Wieacker’s common heritage suffices for the European Society to grow and to develop out of (German) legalism, (British) personalism and (French) intellectualism. It would equally mean that legalism, personalism and intellectualism are constitutive elements of a European Society. Wieacker discussed the relationship between legalism and private law, the interests of the entrepreneurial society in a uniform private law and the insertion of solidarity into the legal system through the anchoring of social rights with even a constitutional status.112 The bridge towards personalism is easy, as the private law system relies heavily on the ‘person’ in the form of the ‘legal subject’, so is the link between private law and intellectualism, being understood with Wieacker as the idea “to comprehend legal phenomena in the framework of scientific thought”.113 One might therefore conclude that Wieacker had a particular civil society in mind, one in which a private law system, the person and the idea of scientific anchoring is key. If such a European Society ever existed, it came to an end in the aftermath of 1986, when the European Commission and the EU legislature began to tighten its grip on private law making and thereby on modelling a European Society. Or
From 1986 onwards, the EU started to actively form and shape a European Society that complies with its mandate to complete the Internal Market. If one would like to label the result of these decades-long efforts of legal and judicial activism, one might call the European Society a market society. It is a multiple split society: split between the national societies and the European Society; split between different sectors of the economy (the regulatory silos); split between the addressees of the European Society, which only knows the worker, the employer, the consumer, the trader and service provider but not ‘the person’;114 split between the rights and remedies granted to the individual-individual and the individual-mandataire; last but not least, split between the individual and collective entities – the missing dimension of societal solidarity. The market focus unites all these bits and pieces, though in narrow and instrumental understanding.
It is debatable whether the outcome of this enormous exercise could be called ‘society’ at all, whether it is not misleading to associate the existing market-based patchwork with whatever concept of society. Or to put it in the form of a question – where is the ‘civil’ in the European Society and where is the ‘private’ in the publicly managed European Society? The ‘civil’ seems to be substituted by ‘consumption’ and the ‘private’ by ‘regulated’. The type of society the EU has created through law meets criticism from all sides. I will go through them one by one, from Wieacker’s common heritage, to the ‘private law society’ of the ordoliberals and to the ‘democratic economy’ – in an attempt to find my own way and to locate my ‘two souls’.
2.1 Common Heritage and the European Society
Is there still a connection between the common heritage and the European Society? When it comes to legalism, the answer seems to be evident. The EU is the model type of an institution acting through law. The 1985 New Approach, which preceded the Single European Act and which forestalled to some extent the new design of the Treaty,115 has set a new tone, not only via co-regulation,
This is not the place to engage into the democratic deficiency of EU law making. My concern is a different one. The new approach introduced the distinction between a rather broad guidance through mandatory EU law and a complementary private regulation, which concretizes the binding ‘general requirements’. Over the decades, secondary EU law is not only getting ever more comprehensive in terms of recitals and articles, it is also getting ever more vague. It suffices to compare for instance the Directive 85/577/eec on doorstep selling to the Directive 2011/83/EU on consumer rights. The language seems to have changed from a rule-based approach to a programme-based approach. Many pieces of secondary EU law, in particular in the field of regulated markets, resemble much more policy programmes than ‘law’. In so far one might assume that the New Approach unfolded effects far beyond co-regulation in the field of technical standards. The burden to concretize the programmatic language is left to the ecj, through the preliminary reference procedure, and to the European Commission, via the publication of guidelines that are meant to put flesh to the bones. The ecj is facing the difficulty to ‘make sense out of nonsense’,116 turning policy programmes into law. The European Commission is providing guidance on the interpretation of EU private law rules through examples and sometimes through opening up innovative paths of where the law should go.117 One might feel reminded of Wolf Biermann’s song on the Legende vom Sozialistischen Gang (something like the legend of the socialist course).118
When it comes to ‘personalism’, the difference between private law which addresses ‘the person’ as a legal subject and private law which addresses particular sub-groups plays a role. The type of private law the EU creates is a status-related law which lacks the generality Wieacker had in mind and which grants the person the key position in the legal system. ‘Intellectualism’ would have required to invest into the conceptualization of EU private law and to upgrade the existing body of EU rules to a ‘system’.119 It is hard to see how the law of the regulated market or consumer, labour and non-discrimination law could be
In my understanding, Wieacker’s common heritage could not carry the project. The major problem resulted from its backwards-orientated character. It did not take into account the particularities of a civil code that is not tied to a nation state but to a supranational body, which could at best be understood as a quasi-state. In order to develop a European Civil Code, much more would have been needed than just to stretch Europe’s common heritage into Europe’s open future. Hugh Collins120 has designed an alternative: European private law, this is his claim, should and could be elaborated through a bottom-up approach, by business and civil society organizations.
2.2 Private Law Society and the European Society
The lawyer knows what private law is. The national economist knows what a market economy is. But what is a private law society? The term is not commonly used in science. Neither jurisprudence nor economics nor sociology uses it. And yet one of the great aims of the French Revolution was to transform the pre-revolutionary society into a private law society. [...]
What is important here is the insight that the functioning of the market-economy steering system presupposes the existence of a private law society. All members of the society must enjoy the status of private autonomy, the private autonomy of no member may be limited, no one may have more competence than private autonomy confers. In their dealings with each other, all members are limited to being satisfied with the possibilities provided by private law for the realization of their purposes and plans. In other words, private autonomy may not contain any title of command and control. All decisions for the realization of which the use of force is necessary and which must be endowed with general binding force should require the volonté générale. However, the state or the municipalities should be the sole bearers of the volonté générale.122
The private law society has to be shielded against power abuse, be it private or public power. The image of the private law society sounds idealistic and has been criticized, not only due to its formalistic understanding of equality and
However, a different understanding is also possible. Böhm could be read so as to reject private power/control (it refers only to private autonomy) or ‘private government’, but not the possibility of generally binding rules adopted through public, democratic processes (volonté générale) to be legitimate and non-dominating. Stefan Grundmann124 has tried to further develop the model of the private law society along these lines, in particular with regard to regulatory means that shield private parties against private and public power. Mandatory law is a major tool for the EU legislature. It is therefore comprehensible that law and economics join forces with traditional ordoliberals so as to problematize the extensive use of mandatory law in European private law.125 The second interference into the private law society – the new approach/new legislative framework type of regulation – is more difficult to match with the private law society. Franz Böhm is, first and foremost, relying on the individual; he is, however, ready to admit that the state has to interfere when it comes to establishing associations that pursue the common good. The European Standard Bodies as well as the National Standard Bodies are financing the standardization process
Karl-Heinz Ladeur126 has filled the blind spot – the collective dimension – of the private law society through his research on the long-standing tradition of human cooperation in the liberal society. The focus on collective liberalism demonstrates the leeway of the self-organizing power of the private law society as well as the trust in the unfolding of the private law society’s own rationality. There is a certain affinity with Franz Böhm when Ladeur defends the rationality of the private law society against the one-sided focus of constitutional theory/law on the ‘rationality of the public’ (Rationalität des Öffentlichen). This goes along with Zingales, who highlighted the mismatch between ordoliberals’ trust in the rational behaviour of market participants and their distrust in the irrational political behaviour of the very same persons. Zingales compares the market and the state, whereas Ladeur looks into the private law society.127 If we take the research on politicization of the civil society into account, it looks as if the market is the beacon of rationality, whereas the state and the society suggest the contrary.
Ladeur does not only insist on the potential of the private law society, he criticizes the state for interfering ever deeper into the private law society. The welfare state, his argument goes, could not and should not have an imaginary of the private law society. He defends the Eigen-rationality of the private law society. If the state relies on ‘public democratic rationality’, it will try to ‘steer’ the private law society into the politically intended direction. His plea points to a very different form of interaction between the private law society and the democratic institutions.128 The stock-taking of European private law seems to provide evidence to Ladeur’s analysis. EU law has divided the European Society into status-related vertical and horizontal silos, sub-entities within the society, composed of those concerned in the respective legal field. The move towards economic efficiency and full harmonization looks like an attempt to create a homogenous European Society – through law, which
The very last scenario on the role and function of co-regulation is just another variant of ‘my two souls’. In regard to the tension we discussed in that seminar at the eui: on the one hand, I tend to defend the need to put the individual back into a prominent position and to underpin the Eigen-rationality of the civil society; on the other hand, I share Ladeur’s reservations against statutory power that aims at creating a new society with a new type of a ‘person’. If any such a move is to develop, it is from the bottom up. However, I am in favour of limiting self-regulation beyond competition law through statutory regulation. When it comes to the future of European private law, a ‘Standardization Governance Act’ is needed in order to ensure the participation of civil society organizations in the building of the new contractual underground, even
2.3 Democracy, Ordo-Liberalism and the European Society
What is the link between ordoliberalism, democracy and the European Society? The question requires to look into the history, the origins of ordoliberalism and the positioning of the key thinkers during national socialist times. Alessandro Somma133 argues that Franz Böhm had sympathized with the Nazis, whereas Walter Eucken was clearly opposed to national socialism and was organizing a lecture series on the freedom of science.134 Elias Deutscher135 sheds a very different light on the origins of ordoliberalism, which is all too often understood as a mere reaction to the politically promoted concentration of power by the Nazi regime.136 Ordoliberalism, this is Deutscher’s argument, was more than just a response to the negative experience of the Nazi regime. Ordoliberals are said to propose a comprehensive theory of how to deal with instances of concentrated economic power and to reconcile economy, society and democracy – and this theory would have relevance until today and should not be merely reduced to a reaction against fascism/Nazism.
The early 20th century is characterized by a huge uprise in industrialization, technology and economic power, which heavily affected the society and triggered a political debate on how to bring together economy, democracy and society into balance.137 From the left-wing side, advocates promoted the idea of ‘economic democracy’ – the democratization of the economy through the participation of workers in the decision-making process. This would have ended up in a different economy, one where the owners of the companies are
Deutscher dives into the history of US and EU competition law so as to demonstrate that ordoliberals, in a similar vein as the proponents of a competition-democracy nexus in the US, grounded the idea that there is a link between competition and democracy in the concept of economic liberty as non-domination. Böhm had famously argued that the market could be conceived as a democratic place where the participants are constantly voting through their individual transaction decisions.138 Deutscher goes further in that economic liberty as non-domination calls for anchoring the market order in a democratic constitution, which can be found in the Sherman Act and in the Treaty of Rome. When economic liberty is linked to Kelsen’s pure theory of law and his understanding of ‘private law rights as political democratic participation’,139 the argument gains considerable momentum far beyond ordoliberalism. It discloses the potential of the private law society as a political institution, something ordoliberals might find difficult to deal with as they draw a clear line between the private and the public. I will come back to that issue in the conclusion.
Although Kelsen strongly sympathized with the idea of economic democracy, he did not accept that economic democracy should be imposed via the constitution. According to him, values have to be negotiated in the democratic process. Böhm would have probably not accepted such a consequence. The market order, with its two components, the private law society and competition law, is to be shielded against statutory intervention even when legitimized through a democratic process. The democratic foundations of ordoliberalism would then be rather narrow and limited to economic liberty (be it individual or, in Ladeur’s sense, collective), which should be constitutionally guaranteed and defended. One might therefore understand the ordoliberal concept as value-loaded, depending on what is to be understood as ‘value’. Grundmann and Deutscher, on the other hand, would argue that ordoliberalism, correctly understood, allows for statutory intervention as along as it is democratically legitimated and principled.140 However, even the extended interpretation of
Conclusion : Economic Democracy, Rechtsverfassungsrecht and the European Society
‘Economic Democracy’ broadens the perspective and might show a way out of the bias. The focus is not so much on the society, but on the way in which the economy is organized. The connection to ordoliberalism lays bare the different understandings of Mestmäcker and Wiethölter of how the economic constitution should be conceptualized. Both are contemporaries. They built their career in the turbulent years of the German Federal Republic before and after 1968 – the so-called ‘student revolte’. Mestmäcker was nominated as Director of the Max-Planck Institute (mpi) in Hamburg in 1979 and left a deep imprint on the direction the mpi took in the 1980s and on the understanding of the EU economic constitution.141 Wiethölter, for its part, is perhaps one of the most influential teachers of law, not least through his famous book on Rechtswissenschaft,142 which gained a cult status among left-wing law students of the time. Here he developed his understanding of Politische Rechtstheorie (Political Theory of Law), a forceful attack against the Begriffsjurisprudenz and the depoliticization of law in the aftermath of the Second World War. His disciples were appointed professors at the newly established University of Bremen, but not only there. His intellectual legacy is documented in a collection of essays published in 2019.143 My own legal socialization is strongly connected to
Mestmäcker defends ordoliberalism, in line with Böhm and Eucken, as the appropriate model for a democratic society not only in Germany but also for the European Union. Joerges and Everson144 identified however, in Mestmäcker’s writings, a twist away from ordoliberalism and towards Hayek’s understanding of competition as a discovery procedure.145 Whether he would agree with such a reading can remain undecided. What is more important in our context is the very different position Wiethölter took in the debate. His understanding of the economic constitution as a social constitution (Sozialverfassung) requires a look back into the Weimar Republic – the vibrant debate about Wirtschaftsdemokratie (economic democracy).146 It enshrined the idea of economic constitution. In fact, the term was coined by Hugo Sinzheimer and focused on the role of labour.147 Setting the many variants aside, it is in essence the attempt to design an economy where capital owners and employers should jointly lead the company.148 The economic democracy calls for co-determination. In Germany the idea of economic democracy was revitalized in the 1960s and led to a rich academic debate and to the call for a co-determination law. The socio-liberal coalition came to power in 1972 and adopted the Mitbestimmungsgesetz in 1976, which, however, did not put the capital and workforce on the same footing. The European counterpart was
In light of the current state of the EU, the move towards neoliberalism in whatever shade and the undermining of national democracies, the linkage between the economic constitution, democracy and society seems more important than ever, in particular if the idea of economic democracy is not reduced to co-determination but to the elaboration of a private economic and democratic law. Here, legal theory is far ahead of politics. Gunther Teubner has thankfully undertaken the effort to decipher Wiethölter’s Rechtsverfassungsrecht, thereby making his enigmatic language accessible.151 Rechtsverfassungsrecht, the ‘law of the constitutional law’, goes beyond the original idea of a nation state-bound democratic social constitution in the tradition of the economic democracy. Teubner calls it ‘Wirtschaftsverfassung ii’.
Autonomy now means: stubbornness of a social sphere of action whose identity is not merely constituted by norms, principles, dogmatic doctrines, but more profoundly by its practice of dispute – by legal decisions, law, contract, judgement, academic controversies, political struggles – which generates its own internal world of law.152
Wiethölter’s efforts are directed towards a constitution of ‘society as society’, in the form of a theory which, as he says, is - in the words of Teubner:
a ‘thorn in the flesh’ of socio-historical development. He [Wiethölter] does not understand ‘society as society’ as a separate social sphere in contrast to the state, [...] but as a space of cultural reproductions, of social identity formations, of successful socializations. In society as society, it is not the ‘whole person’ is legally at home, but rather his or her role, function, decision-making and educational participation, which is always in need of determination, functional, decision-making, educational participation [...].155
Acknowledgments
I would like to thank Elias Deutscher, Guillaume Grégoire, Heike Schweitzer and Thomas Roethe for their extremely helpful comments, which allowed me to concretize ordoliberalism, private law society and to take the sociological distinction between ‘is’ the social reality and ‘ought’ – the normative dimension seriously. The usual disclaimer applies.
A presentation of the seminar is available at:
F. Hayek, The Road to Serfdom, London, Routledge, 1944; K. Polanyi, The Great Transformation: The Political and Economic Origins of Our Time, New York, Farrar & Rinehart, 1944.
F. Hayek, The Intellectuals and Socialism, Chicago, University of Chicago Press, 1949.
W. Streeck, How Will Capitalism End?, London, Verso, 2016; M. Bartl, « Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political », European Law Journal, 2015, vol. 21, n°5, pp. 572–598.
P. Drahos, Survival Governance, Energy and Climate in the Chinese Century, New York, Oxford University Press 2021.
H. Dagan and M. Heller, The Choice Theory of Contracts, Cambridge, Cambridge University Press, 2017; H. Dagan, A Liberal Theory Of Property, Cambridge, Cambridge University Press, 2021.
For an account of the interaction and the nuances between ordoliberalism, societal order and private law, see S. Grundmann « Chapter 6 – Societal Order and Private Law », in S. Grundmann, H.-W. Micklitz and M. Renner (eds.), New Private Law Theory: A Pluralist Approach, Cambridge/New York, Cambridge University Press, 2021, pp. 131–155. Ed.: on neoliberalism, see supra in this volume, F. Marty, « Évolution des politiques de concurrence en droit de l’UE : de la Wettbewerbsordnung ordolibérale à la More Economic Approach néolibérale ? ». Finally, on ordoliberalism and its impact on the European economic constitution, see supra in this volume, the contributions of S. Audier (« Le néolibéralisme : Un “libéralisme autoritaire” néo-schmittien ? ») and C. Mougouachon (« Les difficultés d’une interprétation ordolibérale de la constitution micro-économique de l’Union européenne »).
F. Böhm, « Privatrechtsgesellschaft und Marktwirtschaft », ordo: Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft, 1966, vol. 17, pp. 75–151.
« Civil society », definition and meaning in Collins English Dictionary. J. Habermas in particular is relying heavily on the civil society, which could provide legitimacy to regulatory action, at least the Habermas prior to the Covid crisis.
In the new Member States, the wake-up call is not Cassis de Dijon (Germany) or Sunday Trading (UK), but references dealing with mortgages and currency credits.
E. Grande, « Zivilgesellschaft, politischer Konflikt und soziale Bewegungen », Forschungsjournal Soziale Bewegungen, 2018, vol. 31, nos 1–2, pp. 52–60 (available at
K.-H. Ladeur, Der Staat gegen die Gesellschaft Zur Verteidigung der Rationalität der Privatrechtsgesellschaft, Tübingen, Mohr Siebeck, 2006, pp. 7–96.
The clash between the European society as it is and the European society as it should be deserves a separate paper, see Heinrich Heine on Europa: “Franzosen und Russen gehört das Land. Das Meer gehört den Briten. Wir aber besitzen im Luftreich des Traums die Herrschaft unbestritten.” (
H.-W. Micklitz, The Politics of Justice in European Private Law. Access Justice, Social Justice and Societal Justice, Cambridge/New York, Cambridge University Press, 2018.
Spaak Report, 21 April 1956, available at
J. H. H. Weiler, Supranational law and the supranational system. Legal structure and political process in the European Community, unpublished PhD thesis, European University Institute, Florence, 1982.
F. Wieacker, « Foundations of European Legal Culture », American Journal of Comparative law, 1990, vol. 38, pp. 1–29, esp. pp. 17–18.
In the meaning of Duncan Kennedy (« Three Globalizations of Law and Legal Thought: 1850–2000 », in D. M. Trubek and A. Santos (eds.), The New Law and Economic Development. A Critical Appraisal, Cambridge/New York, Cambridge University Press, 2006, pp. 19–73).
F. de Witte, Justice in the EU, The Emergence of Transnational Solidarity, Oxford, Oxford University Press, 2015, pp. 61 and 200.
One might think of de Gaulle’s Europe des patries: “ Construire l’Europe, c’est-à-dire l’unir, c’est, évidemment, quelque chose d’essentiel. Il est banal de le dire. Pourquoi faudrait-il que ce grand foyer de la civilisation, de la force, de la raison, de la prospérité s’étouffe sous sa propre cendre ? Seulement, dans un pareil domaine, il faut procéder d’après... non pas suivant des rêves mais d’après des réalités. Or quelles sont les réalités de l’Europe? Quels sont les piliers sur lesquels on peut la bâtir ? En vérité, ce sont les Etats. [...] Se figurer qu’on peut bâtir quelque chose qui soit efficace pour l’action et qui soit approuvé par les peuples en dehors, au-dessus des Etats, c’est une chimère. Assurément, en attendant qu’on ait abordé le problème de l’Europe dans son ensemble et corps à corps, il est vrai qu’on a pu instituer certains organismes plus ou moins extra ou supra nationaux. Ces organismes ont leur valeur technique. Mais ils n’ont pas, ils ne peuvent pas avoir d’autorité, et par conséquent, d’efficacité politique. [...] Assurer la coopération régulière des Etats de l’Europe occidentale, c’est ce que la France considère comme étant souhaitable, comme étant possible et comme étant pratique dans le domaine politique, dans le domaine économique, dans le domaine culturel et dans celui de la défense. [...] Cela comporte un concert organisé, régulier des gouvernements responsables. Et puis alors, le travail, l’organisme spécialisé dans chacun des domaines communs est subordonné au gouvernement. Cela comporte la délibération périodique d’une assemblée qui soit formée par les délégués des parlements nationaux.” (Press conference by Charles de Gaulle, 5 September 1960, available at:
J. H. H. Weiler, « The Transformation of Europe », The Yale Law Journal, 1991, vol. 100, pp. 2403–2483; E.-J. Mestmäcker, « Auf dem Wege zu einer Ordnungspolitik für Europa », in E.-J. Mestmäcker, H. Möller and H. P. Schwartz (eds.), Eine Ordnungspolitik für Europa. Festschrift für Hans von der Groeben, Baden-Baden, Nomos, 1987, pp. 9–49.
The Lisbon Strategy of 2000, para. 1 (available at:
There would be much to say on the ‘quantum shift’ – on the economic and political implications that the efficiency based EU policy triggered. In fact there is an abundant literature.
H.-W. Micklitz, « The Legal Subject, the Social Class and Identity Based Rights in a European Perspective », in L. Azoulai, S. Barbou des Places and E. Patout (eds.), Ideas of the Person and Personhood in European Union Law, Oxford, Hart Publishing, 2016, pp. 285–310.
Unless this ‘governance’ aims, on the contrary, to depoliticise the management of the European integration process ? (M. Bach, Die Bürokratisierung Europas. Verwaltungseliten, Experten und politische Legitimation in der Europäischen Union, Frankfurt am Main, Campus Verlag, 1999).
E.-J. Mestmäcker, « Auf dem Wege zu einer Ordnungspolitik für Europa », op. cit.
The Schuman Declaration is available on the website of the Robert Schuman Foundation at:
J. H. H. Weiler, « Deciphering the Political and Legal DNA of European Integration: An Exploratory Essay », in J. Dickson and P. Eleftheriadis (eds.), Philosophical Foundations of European Union Law, Oxford, Oxford University Press, 2012, pp. 137–158, esp. p. 139.
P. Pescatore, The Law of Integration. Emergence of new phenomenon in international relations, based on experience of the European Communities, Leiden, Sijthoff, 1974 (originally published in French in 1972).
E. Stein, « Lawyers, Judges and the Making of a Transnational Constitution », American Journal of International Law, 1981, vol. 75, pp. 1–27.
Ed.: see infra in this volume, P. Van Cleynenbreugel & X. Miny, « The Fundamental Economic Freedoms: Constitutionalizing the Internal Market ».
P.-C., Müller-Graff, Privatrecht und Europäisches Gemeinschaftsrecht. Gemeinschaftsprivatrecht, Baden-Baden, Nomos, 1989.
E. Steindorf, EG-Vertrag und Privatrecht, Baden-Baden, Nomos, 1996; A. Hartkamp, European Law and National Private Law: Effect of EU Law and European Human Rights Law on Legal Relationships Between Individuals, 2nd ed., Cambridge/Antwerp, Intersentia, 2016; H.-W. Micklitz and C. Sieburgh, (eds.), Primary EU law and Private Law Concepts, Cambridge/Antwerp, Intersentia, 2017. The dimension is totally missing in preparatory work on the Academic Draft of References.
See supra in this volume, P. Van Cleynenbreugel & X. Miny, « The Fundamental Economic Freedoms: Constitutionalizing the Internal Market ».
D. Kennedy, « Three Globalizations of Law and Legal Thought: 1850–2000 », op. cit.
M. Dawson, New Governance and the Transformation of European Law, Coordinating EU social law and policy, Cambridge, Cambridge University Press, 2011, p. 34.
The cap and structural funds were (are) proper redistributive policies with tangible economic impact – just not very socially salient. They were financed out of the EU budget and decided by majority voting. The subjects of these policies are not akin to classic welfare state schemes.
oj No. C 13, 12.2.1974, pp. 1.
oj No. C 92, 24.4.1975, pp. 2.
Council Directive 75/117/eec of 10 February 1975 on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women, oj No. L 45, 19.2.1975, pp. 19.
Council Directive 76/207/eec of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions, oj No. L 39, 14.2.1976, pp. 40.
Council Directive 85/577/eec of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises, oj No. L 372, 31.12.1985, pp. 31.
Council Directive 87/102/eec of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit, oj No. L 42, 12.02.1987, pp. 48.
com (85) 310 final Completing the Internal Market, available at:
Critical account on the achievements M. Höpner and A. Schäfer,« Embeddedness and Regional Integration: Waiting for Polanyi in a Hayekian Setting », International Organization, 2012, vol. 66, pp. 429–455.
oj No. C 364, 18.12.2000, pp. 1.
See H.-W. Micklitz, « Chapter 24 – Multilateral Governance and Economic Constitution », S. Grundmann, H.-W. Micklitz and M. Renner, New Private Law Theory: A Pluralist Approach, op. cit., pp. 454–471.
C. Joerges, « What is left of the European Economic Constitution? A melancholic eulogy », European Law Review, 2005, vol. 30, pp. 461–489.
Ed.: see also infra in this volume, C. Joerges, « Economic Constitutionalism and “The Political” of “The Economic” ».
H. E. Brander and P. Ulmer, « The community directive on unfair terms in consumer contracts », Common Market Law Review, 1991, vol. 28, n°3, pp. 647–662; C.-W. Canaris, « Verfassungs- und europarechtliche Aspekte der Vertragsfreiehit in der Privatrechtsgesellschaft », in. P. Badura and R. Scholz (eds.), Wege und Verfahren des Verfassungslebens. Festschrift für Peter Lerche zum 65. Geburtstag, Munich, C.H. Beck, 1993, pp. 873–891.
F. Rödl, « Labour Constitution », in A. V. Bogdandy and J. Bast (eds.), Principles of European Constitutional Law, 2nd ed., Oxford, Hart Publishing, 2009, pp. 623–658, esp. p. 638.
There is an abundant literature on each of the three fields. For a holistic perspective see J. Basedow, EU Private Law, Anatomy of a Growing Legal Order, Cambridge, Intersentia, 2021, p. 59.
S. Weatherill, EU Consumer Law and Policy, 2nd ed., Cheltenham, Edward Elgar, 2005; N. Reich, H.-W. Micklitz, P. Rott and K. Tonner (eds.), European Consumer Law, 2nd ed., Antwerp, Intersentia, 2014; G. Howells, C. Twigg-Flesner and T. Wilhelmsson, Rethinking European Consumer Law, Abingdon, Routledge, 2017.
H.-W. Micklitz, « The Expulsion of the Concept of Protection from the Consumer Law and the Return of Social Elements in the Civil Law – A Bittersweet Polemic », eui Working Paper, n° 2012/03 (also published in Journal of Consumer Policy: Consumer Issues in Law, Economics and Behavioural Sciences, 2021, vol. 35, n°3, pp. 283–296); S. Deakin and F. Wilkinson, The Law of the Labour Market. Industrialization, Employment and Legal Evolution, Oxford, Oxford University Press, 2005.
H. Unberath and A. Johnston, « The double-headed approach of the ECJ concerning consumer protection », Common Market Law Review, 2007, vol. 44, pp. 1237–1284 and on the case law B. Kas and H.-W. Micklitz, « Rechtsprechungsübersicht zum Europäischen Vertrags-und Deliktsrecht (2014–2018) », Europäisches Wirtschafts- und Steuerrecht, 2018, vol. 29, pp. 181–219 (« Vol. i ») and pp. 241–300 (« Vol. ii »).
S. Smismans, « From Harmonization to Co-ordination? EU law in the Lisbon Governance Architecture », Journal of European Public Policy, 2011, vol. 18, pp. 504–524; See also supra, F. Marty, « Évolution des politiques de concurrence en droit de l’UE : de la Wettbewerbsordnung ordolibérale à la More Economic Approach néolibérale? »; with regard to the European courts, compare ecj, Case C-413/14 P – Intel v Commission (ecli:eu:c:2016:788) pro with General Court Case T-612/17 – Google and Alphabet v Commission (Google Shopping) (ecli:eu:t:2021:763) against such a move. I would like to thank Heike Schweitzer for this hint.
Agricultural assistance to new Member States was much curtailed and efforts to modernise the cap got momentum. Structural funds evolved towards a logic of ‘everybody gets something’, which comes close to the fair return principle. The new policy departed from former emphasis on developing regions. They became another instrument of efficiency, which culminated with the introduction of macroeconomic conditionality in the aftermath of the Eurozone crisis. If a Member State breaches the Six-Pack and the instructions given in the European semester, they might lose their access to structural funds.
H. Collins, « Discrimination, Equality and Social Inclusion », The Modern Law Review, 2003, vol. 66, pp. 16–43.
From the bulk of literature, M. Freedland and J. Prassl (eds.), Viking, Laval and Beyond, Oxford, Hart Publishing, 2014.
oj No. C 137, 8.6.2002, pp. 2.
E. van Schagen and S. Weatherill (eds.), Better Regulation in EU Contract Law: The Fitness Check and the New Deal for Consumers, Oxford, Hart Publishing, 2019.
With the exception of the unfair terms directive, M. Grochowski, « European Consumer Law after the New Deal: A Tryptich », Yearbook of European Law, 2020, vol. 39, pp. 387–422.
Information on the omc and its cycles is available at:
D. M. Trubek and L. G. Trubek, « Hard and Soft Law in the Construction of Social Europe: the Role of the Open Method of Co-ordination », European Law Journal, 2005, vol. 11, n°3, pp. 343–364; N. Reich « ‘Reflexive Contract Governance in the EU’- David Trubek’s Contribution to a More Focused Approach to EU Contract Legislation », in G. de Búrca, C. Kilpatrick and J. Scott (eds.), Critical legal perspectives on global governance. Liber amicorum David M. Trubek, Oxford, Hart Publishing, 2014, pp. 273–294; J. Zeitlin and B. Vanhercke, « Socializing the European Semester? Economic Governance and Social Policy Considerations in Europe 2020 », Report for the Swedish Institute for European Policy Studies (sieps), n° 2014:7, available at:
F. Cafaggi and H. Muir-Watt (eds.), Making European Private Law Governance Design, Cheltenham, Edward Elgar, 2008; F. Cafaggi and H. Muir-Watt (eds.), The Regulatory Function of European Private Law, Cheltenham, Edward Elgar, 2009.
W. van Gerven, « Needed: A Method of Convergence for Private Law », in A. Furrer (ed.), Europäisches Privatrecht im wissenschaftlichen Diskurs, Bern, Stämpfli, 2006, pp. 437–460 and F. Cafaggi, « Rethinking Private Regulation in the European Regulatory Space », in F. Cafaggi (ed.), Reframing Self-Regulation in European Private Law, Alphen aan den Rijn, Kluwer Law International, 2006, pp. 3–75.
For an overview of the Ius Commune Casebooks for the Common Law of Europe (edited by D. Droshout), see the website of Bloomsbury:
H. Collins, « Discrimination, Equality and Social Inclusion », op. cit. and H.-W. Micklitz, The Politics of Justice in European Private Law, op. cit., Part 3. 2.5, 3.5, 4.5.
M. Safjan and D. Düsterhaus, « A Union of Effective Judicial Protection: Addressing a Multi-level Challenge through the Lens of Art 47 CFREU », Yearbook of European Law, 2014, vol. 33, pp. 3–40.
O. O. Cherednychenko, Fundamental Rights, Contract Law and the Protection of the Weaker Party. A Comparative Analysis of the Constitutionalisation of the Contract Law, with Emphasis on Risky Financial Transactions, Munich/Sellier, European Law Publishers, 2007; C. Mak, Fundamental Rights in European Contract Law. A Comparison of the Impact of Fundamental Rights on Contractual Relationships in Germany, the Netherlands, Italy and England, Alphen aan den Rijn, Kluwer Law International, 2008; A. C. Ciacchi, G. Brüggemeier and C. Comandé (eds.), Fundamental Rights and Private Law in the European Union, Vol. i and ii, Cambridge, Cambridge University Press, 2010.
M. Kumm, « The Moral Point of Constitutional Pluralism: Defining the Domain of Legitimate Institutional Civil Disobedience and Conscientious Objection », in J. Dickson and P. Eleftheriadis (eds.), Philosophical Foundations of European Union Law, op. cit., pp. 216–246; A. Somek, « The Preoccupation with Rights and the Embrace of Inclusion: A Critique », in D. Kochenov, G. de Búrca and A. Williams (eds.), Europe’s Justice Deficit?, Oxford, Hart Publishing, 2015, pp. 295–310 with a reply from A. Williams, « A reply to Somek », in ibid., pp. 311–318. Critical with regard to the constitutionalization of private law, H. Collins, « The constitutionalization of European private law as a path to social justice », in H.-W. Micklitz (ed.), The Many Concepts of Social Justice in European Private Law, Cheltenham, Edward Elgar, 2011, pp. 133–166.
I am referring here to Mohamed Aziz and the follow-on references to the ecj, F. Della Negra, « The uncertain development of the case law on consumer protection in mortgage enforcement proceedings: Sánchez Morcillo and Kušionová » Common Market Law Review, 2015, vol. 52, pp. 1009–1032; C. Kilpatrick, « On the Rule of Law and Economic Emergency: The Degradation of Basic Legal Values in Europe’s Bailouts », Oxford Journal of Legal Studies, 2015, vol. 35, n°2, pp. 325–353.
G. Davies « Freedom of Contract and the Horizontal Effect of Free Movement Law », in D. Leczykiewicz and S. Weatherill (eds.), The Involvement of EU Law in Private Law Relationships, Oxford, Hart Publishing, 2013, pp. 53–70; G. Tagiuri, The Cultural Implications of Market Regulation: Does EU Law Destroy the Texture of National Life?, PhD thesis, University of Bocconi, 2018.
See supra in this volume, P. Van Cleynenbreugel & X. Miny, « The Fundamental Economic Freedoms: Constitutionalizing the Internal Market ».
There might also be new opportunities for smes, however, these opportunities do not take away the effect on the society and our consumption habits. I would like to thank E. Deutscher for this hint.
P. Rott, Certification – Trust, Accountability, Liability, Cham, Springer, 2019.
ecj, Judgment of 2 February 1989, Ian William Cowan v Trésor public, Case 186/87 (ecli:eu:c:1989:47); N. Reich, Bürgerrechte in der Europäischen Union, Baden-Baden, Nomos, 1989, p. 62.
ecj, Judgment of 16 January 2003, Commission of the European Communities v Italian Republic, Case C-388/01 (ecli:eu:c:2003:30).
M. Everson, « The legacy of the market citizen », in J. Shaw and G. More (eds.), New Legal Dynamics of European Union, Oxford, Clarendon Press, 1995, pp. 73–90; Market citizenship in general is said to be inherently limited. In contrast, market citizenship may offer more than we presume: N. Shuibhne, « The Resilience of EU Market Citizenship », Common Market Law Review, 2010, vol. 47, pp. 1597–1628; more comprehensively, J. Davies, The European Consumer Citizen in Law and Policy, Basingstoke, Palgrave Macmillan, 2011.
See N. Reich and H.-W. Micklitz, « Chapter 1 – Economic Law, Consumer Interests and EU Integration », in N. Reich, H.-W. Micklitz, P. Rott and K. Tonner, European Consumer Law, 2nd ed., Cambridge, Intersentia, 2014, pp. 1–65.
H.-W. Micklitz (ed. and Author), Rechtseinheit oder Rechtsvielfalt in Europa? – Zur Rolle und Funktion des Verbraucherrechts in den MOE-Staaten und in der EG, vol. I, Baden-Baden, Nomos, 1996; H.-W. Micklitz, « Verbraucherschutz West versus Ost – Kompatibilisierungsmöglichkeiten in der Europäischen Gemeinschaft – Einige Vorüberlegungen », in H. Heiss (ed.) Brückenschlag zwischen den Rechtskulturen des Ostseeraums, Tübingen, Mohr Siebeck, 2001, pp. 137–182.
K. Verhoest, « Agentification in Europe », in E. Ongaro and S. van Thiel (eds.), Palgrave Handbook of Public Administration and Management in Europe, Basingstoke, Palgrave Macmillan, 2013, pp. 327–346.
“Member States shall ensure that entities, in particular consumer organisations, including consumer organisations that represent members from more than one Member State, are eligible to be designated as qualified entities for the purpose of bringing domestic representative actions, cross-border representative actions, or both” (Art. 4 (2) Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/ec (Text with eea relevance), oj L 409, 4 December 2020, p. 1–27).
Regulation (EU) No 1025/2012 of the European Parliament and of the Council of 25 October 2012 on European standardisation, amending Council Directives 89/686/eec and 93/15/eec and Directives 94/9/ec, 94/25/ec, 95/16/ec, 97/23/ec, 98/34/ec, 2004/22/ec, 2007/23/ec, 2009/23/ec and 2009/105/ec of the European Parliament and of the Council and repealing Council Decision 87/95/eec and Decision No 1673/2006/ec of the European Parliament and of the Council Text with eea relevance; oj L 316, 14 November 2012, p. 12–33.
This ngo is ANEC: The European Consumer Voice in Standardisation (
H.-W. Micklitz, « Soft Law, Technical Standards and European Private Law », in M. Eliantonio, E. Korkeo-aho and U. Morth (eds.), Handbook of Soft Law, Cheltenham, Edward Elgar, forthcoming (2022).
H.-W. Micklitz and A. Villanueva, « REFIT or Rethink – The Politics of EU Research – A Grand Misunderstanding? », in E. van Schagen and S. Weatherill (eds.), Better Regulation in EU Contract Law: The Fitness Check and the New Deal for Consumers, Oxford, Hart Publishing, 2019, pp. 37–59; H.-W. Micklitz, « The Measuring of the Law through EU Politics, to be published » in M. Bartl and J. C. Lawrence (eds.), The Politics of European Legal Research: Behind the Method, Cheltenham, Edward Elgar, 2022, pp. 224–239.
D. Kukovec, « Law and the Periphery », European Law Journal, 2015, vol. 21, pp. 406–428.
See with regard to human and fundamental rights:
It would require a clarification of society, community and polity, left for another occasion.
L. López Zurita, The Survival of the Fitted? Individual Protection in the European Court of Justice’s Preliminary Ruling Procedure, PhD thesis, European University Institute, Florence, 2021.
This is another term which needs clarification along the line of community, society and polity.
H.-W. Micklitz, « The Legal Subject, Social Class and Identity Based Rights », in L. Azoulai, S. Barbou des Places and E. Pataut (eds.), Constructing the Person in EU Law. Rights, Roles, Identities, Oxford, Hart Publishing, 2016, pp. 285–310; in common law context referred to as the ‘private attorney general’.
See on the individual-individual, C. Leone, The missing stone in the Cathedral: Of unfair terms in employment contracts and coexisting rationalities in European contract law, PhD thesis, University of Amsterdam, 2020. Candida Leone has analysed carefully the abundant case law of the ecj on unfair terms and came to the conclusion that overall the ecj leaves the last word to the individual consumer concerned. They may decide to accept the unfair term or reject it with all possible consequences.
ecj, Judgment of 25 January 2018, Maximilian Schrems v Facebook Ireland Limited, Case C-498/16 (ecli:eu:c:2018:37).
B. Kas, ‘Hybrid’ collective remedies in the EU social legal order, PhD thesis, European University Institute, Florence, 2017.
ecj, Judgment of 12 December 1974, Walrave and Koch v. Association Union Cycliste Internationale and Others, Case 36/74 (ecli: ecli:eu:c:1974:140).
ecj, Judgment of 15 December 1995, Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman, Case 415/93 (ecli:eu:c:1995:463).
ecj, Judgment of 6 June 2000, Roman Angonese v Cassa di Risparmio di Bolzano SpA, Case C-281/98 (ecli: ecli:eu:c:2000:296).
ecj, Judgment of 11 December 2007, International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti, Case C-438/05 (ecli:eu:c:2007:772); ecj, Judgment of 18 December 2007, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet, Case C-341/05 (ecli:eu:c:2007:809); ecj, Judgment of 16 March 2010, Olympique Lyonnais SASP v Olivier Bernard and Newcastle UFC, Case C-325/08 (ecli: ecli:eu:c:2010:143).
ecj, Grand Chamber, Judgment of 21 December 2016, aget Iraklis, Case C-201/15 (ecli:eu:c:2016:97).
ecj, Judgment of 19 February 2002, Wouters and Others, Case C-309/99 (ecli:eu:c:2002:98), para. 120.
ecj, Judgment of 15 December 1995, Bosman, loc. cit.; ecj, Judgment of 6 June 2000, Angonese, loc. cit.
ecj, Judgment of 11 December 2007, Viking, loc. cit ; ecj, Judgment of 18 December 2007, Laval, loc. cit.; ecj, Judgment of 16 March 2010, Olympique Lyonnais, loc. cit.
ecj, Judgment of 18 July 2013, Mark Alemo-Herron and Others v Parkwood Leisure Ltd, C-426/11 (ecli:eu:c:2013:521).
Alemo-Herron and Aget Iraklis deal with the interpretation of secondary EU law.
On this difference, see L. Azoulai, « The Court of Justice and the Social Market Economy: The Emergence of an Ideal and the Conditions for its Realisation », Common Market Law Review, 2008, vol. 45, pp. 1335–1355, esp. p. 1350.
M. Bartl, « Internal Market Rationality, Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political », European Law Journal, 2015, vol. 21, pp. 572–598; G. T. Davies, « Social Legitimacy and Purposive Power: The End, the Means and the Consent of the People », in D. Kochenov, G. de Búrca and A. Williams (eds.), Europe’s Justice Deficit?, Oxford, Hart Publishing, 2015, pp. 259–276; D. Kochenov, « The Ought of Justice » in ibid., pp. 21–33; F. Rödl, « Labour Constitution », op. cit.; just to name a few.
A. Reich and H.-W. Micklitz, « The Impact of the European Court of Justice on Neighbouring Countries: Summary and Analysis of Findings », in A. Reich and H.-W. Micklitz (eds.), The Impact of the European Court of Justice on Neighbouring Countries, Oxford/New York, Oxford University Press, 2020, pp. 349–396.
E. Christodoulidis, « The European Court of Justice and “Total Market” Thinking », German Law Journal, 2013, vol. 14, n° 10, pp. 2005–2020.
H.-W. Micklitz, « The Transformative Politics of European Private Law », in P. Kjaer (ed.), The Law of Political Economy, Cambridge, Cambridge University Press, 2020, pp. 205–227.
F. Wieacker, « Foundations of European Legal Culture », op. cit., pp. 17–18.
Ibid., p. 20.
H. Collins, « The Revolutionary Trajectory of EU Contract Law towards Post-national law », in S. Worthington, A. Robertson and G. Virgo (eds.), Revolution and Evolution in Private Law, Oxford, Hart Publishing 2017, pp. 315–336.
H.-W. Micklitz, « Privatisation of Access to Justice in the European Legal Order », in T. Wilhelmsson and S. Hurri (eds.), From Dissonance to Sense, Aldershot, Ashgate, 1998, pp. 505–548.
H. Collins as quote in the « foreword » of F. De Witte, Justice in the EU. The Emergence of Transnational Solidarity, Oxford, Oxford University Press, 2015.
Guidelines on Directive 2005/29/ec and Guidelines on Directive 2011/83/ec.
Available at:
On the EU as a legal system or as a legal order, see J. Dickson, « Towards a Theory of European Union Legal Systems », in J. Dickson and P. Eleftheriadis (eds.), Philosophical Foundations of European Union Law, op. cit., pp. 25–53; K. Culver and M. Giudice, « Not a System but an Order. An Inter-Institutional View of European Union Law », in J. Dickson and P. Eleftheriadis (eds.), Philosophical Foundations of European Union Law, Oxford, Oxford University Press, 2012, pp. 54–76.
See H. Collins, The European Civil Code, The Way Forward, Cambridge/New York, Cambridge University Press, 2008.
H. Schweitzer, « Vertragsfreiheit, Marktregulierung, Marktverfassung: Privatrecht als dezentrale Koordinationsordnung », Archiv für Civilistische Praxis, 2020, vol. 220, nos 4–5, pp. 544–586.
F. Böhm, « Privatrechtsgesellschaft und Marktwirtschaft », op. cit., pp. 75–151, esp. p. 75: “Was Privatrecht ist, weiß der Jurist. Was Marktwirtschaft ist, weiß der Nationalökonom. Was aber ist Privatrechtsgesellschaft? Der Begriff ist in der Wissenschaft nicht gebräuchlich. Weder die Rechtswissenschaft noch die Wirtschaftswissenschaft, noch die Soziologie bedient sich seiner. Und doch ist es eines der großen Ziele der Französischen Revolution gewesen, die vorrevolutionäre Gesellschaft in eine Privatrechtsgesellschaft umzuwandeln. [...]”; and ibid., p. 98: “Wichtig ist dabei die Einsicht, daß das Funktionieren des marktwirtschaftlichen Lenkungssystems das Bestehen einer Privatrechtsgesellschaft voraussetzt. Alle Mitglieder der Gesellschaft müssen im Genuß des Status der Privatautonomie sein, die Privatautonomie keines Mitglieds darf beschränkt sein, keiner darf mehr Zuständigkeit haben, als sie die Privatautonomie verleiht. Im Verkehr untereinander sind alle Mitglieder darauf beschränkt, sich zum Behuf der Verwirklichung ihrer Zwecke und Pläne mit den Möglichkeiten zufriedenzugeben, die das Privatrecht zur Verfügung stellt. Das heißt, die Privatautonomie darf kein Titelchen Befehls- und Besteuerungsgewalt enthalten. Alle Entscheidungen, zu deren Verwirklichung der Einsatz von Gewalt erforderlich ist und die mit Allgemeinverbindlichkeit ausgestattet sein müssen, sollten der volonté générale bedürfen. Einzige Träger der volonté générale aber sollten der Staat bzw. die Gemeinden sein”.
D. Haselbach, Autoritärer Liberalismus und Soziale Marktwirtschaft, Baden-Baden, Nomos, 1991. Ed.: regarding the concept of “authoritarian liberalism”, see also supra in this volume, W. Bonefeld, « Economic Constitution and Authoritarian Liberalism – Carl Schmitt and the idea of a “Sound Economy” » – and the discussions by S. Audier (« Le néolibéralisme : Un “libéralisme autoritaire” néo-schmittien? ») and V. Valentin (« L’idée de constitution économique et l’hypothèse du libéralisme autoritaire »).
S. Grundmann (« The Concept of the Private Law Society: After 50 Years of European and European Business Law », European Review of Private Law, 2008, vol. 16, pp. 553–581) sees potential to further develop Böhm’s theory in emphasizing that the private law society needs to be protected against private and public power.
S. Grundmann « Chapter 6 – Societal Order and Private Law », op. cit., more explicit in the German version: S. Grundmann, « Kapitel 6 – Gesellschaftsordnung und Privatrecht », in S. Grundmann, H.-W. Micklitz and M. Renner (eds. and authors), Privatrechtstheorie, vol. ii, Mohr Siebeck, 2015, p. 415 with references in Fn. 19.
K.-H. Ladeur, Der Staat gegen die Gesellschaft. Zur Verteidigung der Rationalität der Privatrechtsgesellschaft, op. cit.
L. Zingales, « Towards a Political Theory of the Firm », Journal of Economic Perspectives, 2017, vol. 31, pp. 113–130.
K.-H. Ladeur, Der Staat gegen die Gesellschaft. Zur Verteidigung der Rationalität der Privatrechtsgesellschaft, op. cit., p. 296.
H.-W. Micklitz, N. Helberger and P. Rott, « The Regulatory Gap – Consumer Protection in the Digital Economy », beuc. The European Consumer Organisation, December 2021 (available at:
H. Schweitzer, « Vertragsfreiheit, Marktregulierung, Marktverfassung: Privatrecht als dezentrale Koordinationsordnung », op. cit., p. 584 under 4.
K.-H. Ladeur, Der Staat gegen die Gesellschaft. Zur Verteidigung der Rationalität der Privatrechtsgesellschaft, op. cit., p. 343.
The implementation of the Directive on Representative Action into German law will lead to a kind of public surveillance and monitoring of the activities of consumer organizations.
A. Somma, I giuristi e l’asse culturale Roma-Berlino, Frankfurt am Main, Klostermann, 2005, pp. 222 ff. and pp. 748 ff.
S. Grundmann, « Chapter 6 – Societal Order and Private Law », op. cit., p. 136. N. Goldschmidt, « Die Rolle Walter Euckens im Widerstand: Freiheit, Ordnung und Wahrhaftigkeit als Handlungsmaximen », in N. Goldschmidt (ed.), Wirtschaft, Politik und Freiheit, Tübingen, Mohr Siebeck, 2005, pp. 289–314.
E. Deutscher, Of Masters, Slaves, Behemoths and Bees – The Rise and Fall of the Link between Competition, Competition Law and Democracy, PhD thesis, European University Institute, Florence, 2020.
For an account, see G. Brüggemeier, Entwicklung des Rechts im organisierten Kapitalismus, Vol. I. : Von der Gründerzeit bis zur Weimarer Republik, Frankfurt am Main, Syndikat, 1977.
Ed.: see also supra in this volume, G. Grégoire, « The Economic Constitution under Weimar. Doctrinal Controversies and Ideological Struggles ».
F. Böhm, « Freiheit und Ordnung in der Marktwirtschaft », ordo: Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft, 1971, vol. 22, pp. 11–27.
H. Dedek, « Private Law Rights as Democratic Participation: Kelsen on private law and (economic) Democracy », University of Toronto Law Journal, 2021, vol. 71, n°3, pp. 376–414.
But see Grundmann’s reinterpretation: S. Grundmann, « The Concept of the Private Law Society », op. cit., and E. Deutscher, Of Masters, Slaves, Behemoths and Bees, op. cit.
E.-J. Mestmäcker, Europäische Prüfsteine der Herrschaft und des Rechts – Beiträge zu Recht, Wirtschaft und Gesellschaft in der EU, Baden-Baden, Nomos, 2016.
R. Wiethölter, Rechtswissenschaft. Funk-Kolleg Recht, Frankfurt am Main/Hamburg, Fischer, 1968. There is an Italian and a Spanish translation, but no English – Italian : Le Formule Magiche della Scienza Giuridica (translated by Pietro Barcellona), Rome, Laterza, 1975; Spanish: Las Formulas Magicas de la Ciencia Juridica, Madrid, Editoriales de Derecho Reunidas, 1991. For an attempt to connect Wiethölter to the US private law theory: D. Kennedy, « Comment on Rudolf Wiethölter’s “Materialization and Proceduralization in Modern Law” and “Proceduralization of the Category of Law”», in C. Joerges and D. Trubek (eds.), Critical Legal Thought: An American-German Debate, Baden-Baden, Nomos, 1989, pp. 511–524.
Kritische Justiz, 2019, vol. 52, n°4. This is not the place to do justice to Wiethölter’s conceptualization of the ‘law’ and/or the ‘Rechtsverfassungsrecht’ which is untranslatable, even if the ‘Law of Constitutional Law’ might come close; see C. Joerges and G. Teubner (eds.) Rechtsverfassungsrecht: Recht-Fertigung zwischen Privatrechtsdogmatik und Gesellschaftstheorie, Baden-Baden, Nomos, 2003.
C. Joerges and M. Everson, « Une querelle allemande? Der Streit um die Wirtschaftsverfassung zwischen Ernst-Joachim Mestmäcker und Rudolf Wiethölter », Kritische Justiz, 2019, vol. 52, n°4, pp. 479–502.
See also supra, C. Mongouachon, « Les difficultés d’une interprétation ordolibérale de la constitution micro-économique de l’Union européenne ».
Ed.: see supra in this volume, G. Grégoire, « The Economic Constitution under Weimar. Doctrinal Controversies and Ideological Struggles ».
H. Sinzheimer, « Die Fortentwicklung des Arbeitsrechts und die Aufgabe der Rechtslehre », Soziale Praxis, 1910–1911, vol. 20, pp. 1202–1206 and pp. 1233–1237; H. Sinzheimer, Ein Arbeitstarifgesetz. Die Idee der sozialen Selbstbestimmung im Recht, Munich/Leipzig, Duncker & Humblot, 1916; H. Sinzheimer, Grundzüge des Arbeitsrechts, Jena, G. Fischer, 1921. See also: R. Dukes, « Hugo Sinzheimer and the Economic Constitution », in The Labour Constitution: The Enduring Idea of Labour Law, Oxford, Oxford University Press, 2014, pp. 12‑32.
H. Dedek, « Private Law Rights as Democratic Participation: Kelsen on private law and (economic) Democracy », op. cit.
On the proposal of the Vredeling Directive, see N. Reich, Bürgerrechte in der Europäischen Union, Baden-Baden, Nomos, 1989, § 21, p. 253.
U. Liukkunen, « Introduction » in U. Liukkunen (ed.), Employment and Private International Law, Cheltenham, Edward Elgar, 2020.
G. Teubner, « Von „Wirtschaftsverfassung I, II“ zum „selbstgerechten Rechtsverfassungsrecht“: Zur Kritizität von Rudolf Wiethölters kritischer Systemtheorie », Kritische Justiz, 2019, vol. 52, n° 4, pp. 601–625.
Here is the original German quote (Ibid., p. 610): “Autonomie heißt jetzt: Eigensinn eines gesellschaftlichen Handlungsbereichs, dessen Identität nicht bloß durch Normen, Prinzipien, dogmatische Lehrsätze, sondern tieferliegend erst durch seine Praxis des Streites – durch Rechtsentscheidungen, Gesetz, Vertrag, Richterspruch, akademische Kontroversen, politische Kämpfe –, die eine rechtseigene Innenwelt erzeugt, konstituiert wird”.
Ed.: on the possible contribution of the conflicts law rationale to the theories on economic constitutionalism, see also, infra in this volume, the conclusion of C. Joerges, « Economic Constitutionalism and “The Political” of “The Economic” ».
Similarly, see the work of H. Muir Watt, e.g.: H. Muir Watt, « The Relevance of Private International Law to the Global Governance Debate », in H. Muir Watt and D. P. Fernández Arroyo (eds.), Private International Law and Global Governance, Oxford, Oxford University Press, 2014, pp. 2–19 ; H.M. Watt, « A Private International Law Perspective on the Creation of Norms and Transnational Governance », in S. Grundmann et M. Grochowski (eds.), European Contract Law and the Creation of Norms, Cambridge, Intersentia, 2021, pp. 149–170; H. Muir Watt, « Conflicts of Laws Unbounded: The Case for a Legal-Pluralist Revival » in P. S. Berman (ed.), The Oxford Handbook of Global Legal Pluralism, Oxford, Oxford University Press, 2020, pp. 649–685.
Quotes from R. Wiethölter in G. Teubner, « Thesen zum Wirtschaftsverfassungsrecht », in P. Römer (ed.), Der Kampf um das Grundgesetz. Über die politische Bedeutung der Verfassungsinterpretation, Frankfurt am Main, Syndikat, 1977, pp. 158–177, esp. p. 158.