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Summary Advanced Private Law (Final Exam summary)

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Universiteit Van Amsterdam (UvA)

This document contains all relevant weeks from 1-7 and its content, including reading notes and case law as well as tutorial and lecture notes. the content is as follows: 1. Materialisation of private law 2. Europeanisation of private law 3. constitutionalisation of private law 4. Sustai...

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Uploaded on November 21, 2023
Number of pages 25
Written in 2023/2024
Type Summary

horizontal effect
integration
european private law
human rights
europeanization
positive integration
negative integration
materialisation
sustainability
environmen
constitutionalisation of private law

Institution
Universiteit van Amsterdam (UvA)
Education
European Private Law
Course Unknown

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aspects of Europeanisation and internationalisation of private law

the impact of various societal developments (digitalization, globalisation, sustainability and
financialization) on what private law means today

Structure of the exam
● Structure (does the essay have an introduction, justification, and conclusion);
○ Introduction
■ Due to recent developments of Europeanisation/globalisation, …
■ This research centers around the question.../This paper investigates…
■ I argue that …
○ Body
■ Short and precise
● Based on …
● From the perspective of …
■ Headers
■ arguments must be substantiated → weekly material
○ Conclusion
● Consistency (the order in which arguments are brought up; whether both arguments for
and against are brought up, whether the position is justified by convincing arguments);
● The use of materials and resources (the right choice of studied material to support your
argument and proper referencing);
● The complexity of the argument (whether your argument is engaging several
discussions, cross-topic)

1. Introduce your question and how to intend to answer it
2. Explain and define concepts, e.g. instrumentalisation, integration, etc
3. How does the concept address the question
4. Conclusion

Substantive criteria:
● Fulfilment of formal criteria depends however on the fulfilment for the substantive criteria
for evaluation
○ Knowledge and use of the “substance” learned in the course
○ Add your own reflections to the materials rather than only reproducing them.
● obviously, different per question.
○ knowledge and understanding of main issues discussed in class relating to this
particular question,
○ mastering of reading material (case-law and scholarship)

, ➔ What is at stake?
◆ EU’s ultimate goal <Effectiveness of EU law> vs Classical private law values
<party autonomy etc> affected

● PL regulates the horizontal relationship between parties
● PL belongs to the area of shared competences (Article 4(2) TEU)
● Article 114 TFEU is currently the most important legal basis for the harmonisation of
substantive rules of private law
○ Burgers:
■ → EU law does not distinguish between private law and public law
■ the EU goal of establishing the internal market is dependent on private
law facilitating market transactions
■ → private law enables the market to exist and therefore, private law is
anything but neutral: it has been used to create capital by the have’s and
they have thus contributed to the growing material, social and political
inequality. In turn, changes in private law can also effectively change the
distribution of wealth, power and environmental harms

I. Materialisation of private law
→ how PL changed from the 19th C: focus on formal inequality to sth with material concerns
(social justice concerns), e.g. emergence of labour law

Fears about national PL: ‘excessively instrumentalized for market integration’

Weinrib: → Fears about national PL: ‘’functionalism’ does not respect the essence of PL’’
classical 1. PL is not concerned with the interests of the community as a whole
conception of 2. Focus on the relationship between the parties (Connects two parties though liability)
PL ○ not address societal issues
■ Justice in PL: not social justice but to compensate the weaker party

3. has its own reason for being since it is an autonomous body of law
■ → can exist without serving a specific function, bc the functions keep
changing
■ → Reason for being is not dependent on the function
■ PL has own code and procedure and intrinsic value → its flexible and
codes can change but there is some principles

4. Opposes functionalism: (= to comprehend law through its goals)
○ Goals of functionalism: promote human welfare
■ Focus that functionalist goals are justifiable independently and the law’s
purpose is to reflect them
○ PL not about achieving goals, but about having own intrinsic internal value,
regardless of what goal parties should be able to rely on it

, 5. Understanding Private Law from Within → PL has internal character
■ PL is to be grasped only from within and not as a set of extrinsic purposes
■ purpose of private law is to be private law
■ external perspective that fails to take seriously the features expressive of
private law’s inner character
■ an internal account respects the dynamism of private law, as understood
from the standpoint of those who think about the law in its own terms
■ Internal perspective on private law. Whose perspective?
● “Direct us to our experience of the law, especially the experience of
those who are lawyers. “
● PL is independent study and can exist on its own
● simply describe and regulate the relationship between two parties: interpersonal justice
between the parties is and must be the only dimension of private parties
● Instrumentalization = changes the essence of private law and contaminates it with foreign
elements, like economics, politics

classical conception of PL challenged: contemporary societal challenges such as digitalization or
sustainability
→ maybe law should pursue goals such as promoting human welfare e.g. climate change and law
should be utilised to achieve it

Schmid: → Fears about national PL: ‘excessively instrumentalized for market integration’
Instrumentalisa ● “Europeanisation” = paradigmatic change in PL function:
tion of PL ○ shifting the focus of private law from resolving disputes between individuals to
using it to promote and enhance the internal market/the collective objectives of
European integration
● “Instrumentalisation”
○ reflects private law’s submission to such European policy objectives
○ critical of private law being used as an instrument by EU law to achieve the goal of
the internal market
■ → realise social, economic and political objectives is
○ the party relationship should not be instrumentalised by external collective goals
○ PL is used for what public law is used, should not be used to steer people
● National PL gets lost in the process
● Manko: solution that there needs to be one body (MS freely chose to adopt same laws, or
enforced, or spontaneous harmonisation by judges and soft law)
● He looks at current developments: argues that in EPL, instrumentalization is inevitable
and even a good thing
● Critique: the extreme cases of instrumentalization, where the relationship of the parties
and interpersonal justice are disregarded and even hurt by the pursuing of other political
goal
● Schmid allows for other goals to the pursued by private law but draws a line when those
goals become an obstacle to justice among the parties

Manko: → Fears about national PL: ‘national PL’s coherence is under threat’
Functionalism ● EPL: the public vs. private law distinction is not of utmost importance in EU law, where EU
legislative competences are structured according to a functionalist paradigm.
● Functional goal: economic integration

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