Islands and the Ocean: Three Models of the Relationship between EU Market Regulation and National Private Law

Abstract

EU regulatory measures in the field of private law have been compared to islands in the ocean of national private law. This article reconceives the relationship between the two, focusing on how national private law today responds and should respond to EU market regulation given the tension between the instrumentalist rationality of EU private law and its own relational rationality. It identifies three main models of this relationship: separation, substitution, and complementarity. These models reflect elements of the current legislative and judicial 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 ability to reconcile the competing rationalities of EU and national private law. Each model has a bearing on the ability of EU measures to achieve their regulatory objectives, and the overall shape of European integration more generally.