Fabrizio Cafaggi and Horatia Muir Watt
The Making of European Private Law: Regulation and Governance
Published: March 20, 2007
The current debate on the desirability and modes of formation
of European Private Law (“EPL”) is engaging a
wide number of scholars and institutions. Current work concerns
the search for a common core of EPL, the rationalisation of
the acquis communautaire, the design of a European Civil Code.
These ongoing projects raise at least two related questions
concerning the challenges to Europeanisation of private law:
First, what is the often implicit definition of private law
standing behind the debate about the creation of EPL? Second,
does the process of creation of EPL need some type of governance
In this paper, we thus intend to contribute to a better understanding
of these two dimensions of the debate. First, we wish to highlight
the internal transformation of private law and its increasing
regulatory function to be considered in governance design.
If we take into consideration the internal transformation
of private law and its increasing regulatory function in addition
to the role of private law in regulated sectors, we witness
several phenomena that require consideration in the governance
design, such as the change of private law sources, and the
procedural nature of Europeanisation.
Within this framework it is important to identify the interplay
between EPL and private international law. The role of private
international law (“PIL”) as a vehicle to ensure
choice of rules for private parties might change quite considerably
depending on the choices concerning private law rules, in
particular whether there is harmonisation and which kind of
private law rules are adopted. The role of PIL may also depend
on the level at which rules are produced.
Second, we address the issue of the appropriate governance
structure. In other words, does EPL need a governance structure
that will accompany its formation, consolidation and changes?
More on the point, is there a link between the governance
design and the definition of EPL?
European law, harmonisation, regulation, regulatory competition,
private international law, multi-level governance
– European University Institute
Horatia Muir Watt – Université
© 2007 Fabrizio Cafaggi
and Horatia Muir Watt
Citing this EUROGOV
Cafaggi, Fabrizio, and Horatia Muir Watt. 2007. The Making
of European Private Law: Regulation and Governance design.
European Governance Papers (EUROGOV) No. N-07-02,