Bridging the gap(s)

• Department of Law

The EUI Private Law Working Group hosts an event with EUI alumnus Szymon Osmola and EUI LAW researcher Grigorios Bacharis, in which they will present their latest paper 'Bridging the Gap(s): The Importance of Private Law Theory in the EU Context'.

Abstract 

European Union (EU) private law creates novel challenges for private law theory. The functionalist approach, prevalent in the literature, asserts that EU private law is a policy tool that aims at achieving a set of instrumentalist objectives. Such an approach entails that EU private law is qualitatively different from national private laws grounded in the principles such as au-tonomy or interpersonal justice. This paper argues that the functionalist approach is misguided. The real difference between EU and national private laws is determined by the divergent modes of reasoning they invite. Member State private laws fit well with a doctrinal mode of reasoning, whereas the structural incompleteness of EU private law invites a theoretical mode of reasoning. However, this does not mean that EU private law must be interpreted functionally. Drawing on New Private Law Theory, we argue that EU private law is still ultimately a means of regulating horizontal relationships and resolving disputes between private parties. This non-instrumentalist component of EU private law is essential for uncovering its underlying principles and should inform the theoretical debate about it.