Fundamental rights, contract law and the protection of the weaker party: a comparative analysis of the constitutionalisation of contract law, with emphasis on risky financial transactions
In: Schriften zur europäischen Rechtswissenschaft 5
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In: Schriften zur europäischen Rechtswissenschaft 5
In: In M. Scholten (ed.), Research Handbook on the Enforcement of EU Law (Cheltenham: Edward Elgar, 2023), pp. 19-37.
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In: In A. Janssen, M. Lehmann and R. Schulze (eds), The Future of European Private Law (Hart/Nomos, 2023), pp. 455-485.
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In: European Law Open, pp. 423-435, 2022
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In: Yearbook of European law, Band 40, S. 146-171
ISSN: 2045-0044
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Regulatory agencies have traditionally been concerned with deterring unlawful conduct in the public interest. This article explores the emerging role of agencies in securing compensation for individuals in mass damage situations resulting from violations of EU private law. It identifies three main models of the relationship between administrative enforcement and private law remedies, notably damages, within the agencies' operation: (1) separation, (2) complementarity, and (3) integration. These models reflect elements of the current legislative and agency practices in a variety of jurisdictions across different areas of EU private law and provide an analytical framework for assessing such practices in terms of their potential to reconcile the pursuit of the public interest with a concern to ensure justice between private parties. The analysis points to the need to systematically rethink the prevailing regulatory theory concerning the tasks of regulatory agencies along the lines of a holistic approach to deterrence and compensation.
In: European review of contract law: ERCL, Band 17, Heft 2, S. 130-141
ISSN: 1614-9939
Abstract
This article critically engages with Peter Benson's theory of contract law. It explores whether his juridical conception of contract as a transfer of rights, which is governed by the contract law's internal principles of transactional justice, can be reconciled with fundamental rights. The article argues that the conventional distinction between the direct and indirect horizontal effect of fundamental rights is problematic because it does not make it unequivocal which body of law – fundamental rights or contract law – substantially governs the relations between contracting parties and determines the outcome of disputes between them. The answer to this fundamental question, however, is crucial for the stability of Benson's theory of contract law. Drawing on the European experience, the article shows that the relationship between fundamental rights and contract law can take the form of the subordination of contract law to fundamental rights or the complementarity between the two. While the latter is compatible with Benson's theory, the former is in tension with it. For the sake of conceptual clarity, therefore, it is useful to distinguish between three forms of the horizontal effect of fundamental rights in contract law – direct horizontal effect, strong indirect horizontal effect, and weak indirect horizontal effect.
In: Yearbook of European Law (;Oxford University Press);, Band 40, Heft 1, S. 146-171
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In: European Review of Contract Law, Band 17, Heft 2, S. 130-141
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In: Modern Law Review, Band 84, Heft 6, S. 1294–1329
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In: European Business Organization Law Review, pp. 147-172, 2021
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In: In Olha O. Cherednychenko & Mads Andenas (eds), FINANCIAL REGULATION AND CIVIL LIABILITY IN EUROPEAN LAW, Cheltenham/Northampton: Edward Elgar, 2020, pp. 2-46.
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In: Cherednychenko , O O 2020 , ' Rediscovering the Public/Private Divide in EU Private Law ' , European Law Journal , vol. 26 , no. 1-2 , pp. 27-47 . https://doi.org/10.1111/eulj.12351 ; ISSN:1351-5993
This article explores the role of the public/private divide within EU private law. It shows that although EU private law cuts across the boundaries of public and private law, the conceptual distinction between these well-established categories does matter within it and may lead to better law-making in the EU more generally. The legal grammar of a particular EU harmonisation measure - which can be more "public" or "private" - may have important implications for the position of private parties at national level, for the CJEU's likely activism in this context, and ultimately for the measure's ability to realise its policy goals. Therefore, instead of ignoring the existing differences between public and private law, EU law should explicitly adopt the public/private law language in its discourse, without, however, introducing any sharp divide between these two areas.
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In: European Law Journal, pp. 1-21, 2019
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In: In E. van Schagen & S. Weatherill (Eds.), BETTER REGULATION IN EU CONTRACT LAW: THE FITNESS CHECK AND THE NEW DEAL FOR CONSUMERS. (STUDIES OF THE OXFORD INSTITUTE OF EUROPEAN AND COMPARATIVE LAW), pp. 61-91, Oxford: Hart Publishing, 2019
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In: European Review of Private Law, Band 25, Heft 4, S. 813-819
ISSN: 0928-9801