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Reich, Norbert --- "The Public/Private Divide in European Law" [2010] ELECD 220; in Micklitz, Hans-W.; Cafaggi, Fabrizio (eds), "European Private Law after the Common Frame of Reference" (Edward Elgar Publishing, 2010)

Book Title: European Private Law after the Common Frame of Reference

Editor(s): Micklitz, Hans-W.; Cafaggi, Fabrizio

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848444072

Section: Chapter 4

Section Title: The Public/Private Divide in European Law

Author(s): Reich, Norbert

Number of pages: 34

Extract:

4. The public/private divide in European
law*
Norbert Reich

I. CAN WE TALK OF A `EUROPEAN PRIVATE LAW'?
When discussing a `divide' between `public and private' in European law, we
seem to suggest that there exists something like the classical division between
`public' and `private law', the first referring to the relationship between citi-
zens and the state, the second to those between (autonomous?) citizens.
`Publicum ius quod at statum rei Romanae spectat, privatum quod at singu-
larum utilatem', as the Roman jurist Ulpian said.1 This model is based on a
separation between the state area where political prerogatives prevail, and the
private sphere where autonomous persons interact according to their own pref-
erences, a separation which permeates, at least in the continental tradition, the
division of legal disciplines and court competences.
This classical model does not fit well with European, or more specifically
EEC/EC/EU law. We may not know what the EEC/EC/EU `is'­ it may be a
`Staatenverbund', in the terminology of the German Bundesverfassungs-
gericht,2 a Union of States and Peoples3 `united in diversity', as the failed draft
Constitution of 2004 formulated it, an institution sui generis, including certain



* My thanks go to Prof. Hans-W. Micklitz, EUI Florence, and to Prof. James
Gordley, Tulane University Law School, LA, USA for critical comments on an earlier
draft. Responsibility remains as usual with the author. An earlier draft was presented at
the 14th General Meeting of the Common Core Group, Turin, 11 ...