The Politics of Justice in European Private Law

Micklitz, Hans‐W.

doi:10.1017/9781108539777

Cited by 45 publications

(6 citation statements)

References 305 publications

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“…Commenting on the "historical oscillation between disembedding and reembedding credit relations," Renner and Leidinger (2016, p. 142) note that a "return to a system merely based on interpersonal trust" is unlikely, invoking Luhmann's words, that "there is no way back to paradise." While that much may be taken for granted, we argue that the case studies provide takeaway lessons for the extension of sustainable credit to low income or disadvantaged customers, including through the financial sector, as well as for policymakers and regulators seeking to broaden realistic access to credit while avoiding over-indebtedness (Micklitz, 2018).…”

Section: Discussionmentioning

confidence: 96%

Financialization and Sustainable Credit: Lessons from Non-Intermediated Transactions?

Svetiev

Dermineur²,

Kolanisi³

2022

J Consum Policy

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Does increasing access to finance promote human flourishing? And if so, are there pathways to sustainable credit and finance in the face of the perceived excesses of financialization? Can we reform or regulate the financial sector to promote sustainable credit and avoid over-indebtedness? These and similar questions have attracted considerable scholarly and public debate in the aftermath of the 2007 global financial crisis, with a growing focus on institutional alternatives to market exchange in finance and beyond. In this article, we study the persistence of non-intermediated credit, whereby lenders and borrowers engage in transactions directly and without financial intermediaries. Peer lending was a mainstay source of credit prior to the emergence of financial intermediaries and our benchmark case study outlines common features of credit relationships before modern banking in Europe. The other two case studies come from jurisdictions where non-intermediated credit persists on a broad scale, despite parties having formal access to modern finance. The aim of our contribution is threefold. First, we identify features of non-intermediated transactions that are consistent with a notion of sustainable credit, in the sense that they are not destabilising for the transacting parties (or the broader community). Secondly, we highlight the normative mechanisms that support non-intermediated credit across different settings to identify the scope conditions and limits for such transactions. Third, we evaluate such credit transactions along a set of normative benchmarks to draw out lessons for contemporary finance and financial regulation. We argue that even if non-intermediated credit cannot provide an alternative to modern finance, such transactions can help financial institutions tailor products to the needs of specific consumers or outsource credit assessment and repayment, while also allowing policymakers and regulators to identify and resolve concrete credit access problems for disadvantaged communities.

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Section: Discussionmentioning

confidence: 96%

Financialization and Sustainable Credit: Lessons from Non-Intermediated Transactions?

Svetiev

Dermineur²,

Kolanisi³

2022

J Consum Policy

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“…My emphasis on political opposition to adversarial legalism within the European Union lawmaking process is important because it suggests that the continuing expansion of the acquis communautaire may not lead to horizontally structured and party‐driven systems of policy implementation and dispute resolution. Even if European integration wholly transforms national legal and bureaucratic systems, and a fully codified European area of justice crystallizes (Hartnell, 2002; Micklitz, 2018), adversarial legalism may not follow; if it does, it will be a version embedded in European legal cultures and political institutions, and therefore more restrained and narrowly circumscribed than the version seen in the United States. Indeed, the fact that private litigation plays a comparatively minor role in the implementation of competition and securities rules, two policy areas subject to extensive EU mandates and characterized by well‐resourced interests, provides reason to doubt that adversarial legalism is likely to become a predominant mode of policy implementation in Europe.…”

Section: Discussionmentioning

confidence: 99%

“…i i This article is focused on the private enforcement of public law against market actors as defined by Farhang (2010). I do not analyze private lawsuits against member states under EU law (Börzel, 2006) or litigation primarily based on private law (Micklitz, 2018). …”

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confidence: 99%

Legalism without adversarialism?: Bureaucratic legalism and the politics of regulatory implementation in the European Union

Foster

2023

Regulation & Governance

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Many scholars predict that European integration will foster adversarial legalism in Europe. In this article, I empirically assess the Eurolegalism thesis by examining EU regulatory mandates in the competition and securities fields, two policy areas where adversarial legalism is seen as most likely to develop. I argue that the diffusion of adversarial legalism to Europe has faced significant political opposition in the EU policymaking process which has curtailed the use of private enforcement mandates in EU secondary legislation. European policymakers have relied more on administrative enforcement through public regulatory agencies, a mode of policy implementation closer to bureaucratic legalism. In practice, public authorities play the primary enforcement role and private litigation serves the narrower function of compensation following public enforcement actions. Drawing from institutionalist theory, I identify several factors that have encouraged the development of bureaucratic rather than adversarial styles of European legalism, especially member states' commitments to procedural subsidiarity, the negative feedback effects from the US experience with entrepreneurial litigation, and the stickiness of European legal and bureaucratic traditions.

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“…Micklitz observes a "shift from consumer protection law to consumer law without protection",48 in more general terms, the dedication of European politics to economic efficiency and marketization of all spheres of European society. 49 Micklitz seems nevertheless to be confident with regard to the survival of the social accomplishments of the European project. The social embeddedness theorem of Polanyi's economic sociology to which he refers50 may, by contrast, lead us to place more hopes on the national, rather than the European level.51…”

Section: 112mentioning

confidence: 99%