The Transformation of Enforcement in European Private Law: Preliminary Considerations

The European Union (EU) is playing an ever stronger role in the regulation of private law since the adoption of the Single European Act. This is true if one broadens the perspective and includes regulatory private law that is developing in selected fields of law, mainly in the area of regulated markets. This harmonized private law must be applied by the Member States. Under the architecture of the Treaty, the Member States enjoy procedural autonomy. They are free to choose and to determine the appropriate institutions and the remedies. The multilevel governance structure of the EU, however, challenges the seemingly clear-cut division of responsibilities and competences. This contribution aims to analyze the transformation of enforcement in private law. Three parameters are used to give shape to the transformation: the distinction between minor and major infringements, the changing functions of enforcement institutions, regulatory agencies, courts, Alternative Dispute Resolution (ADR) bodies, non-governmental organizations, collective entities, such as standard or certification bodies, and last but not least the emergence of new remedies. The contribution concludes with an outlook to the possible consequences of the transformation process: on the sharing of responsibilities between the institutions, on the entanglements in the multilevel governance structure, and on the impact on the law and its integrity, which seems to be undermined.