The Transformation of Economic Law : Essays in Honour of Hans-W. Micklitz

This book is written in honour of Hans-W. Micklitz for his 70th birthday and the closure of his 12-year term as the Chair for Economic Law at the European University Institute (EUI). Hans-W. Micklitz has gained international recognition for dedicating his extensive and fruitful career to diverse areas of law: European Economic Law, European Private Law, National and European Consumer Law, Legal Theory, theories of Private Law and Social Justice. This book is a product of the collaborative endeavour of its contributors, all of whom have a special connection with Hans-W. Micklitz as his doctoral supervisees or research assistants. The collection is to be read as the influence of Hans’s dialogues in the early stage of the academic careers of 31 young legal scholars. The edited volume is divided into three sections devoted to subjects that have received Hans’s attention during his time at the EUI: EU Consumer Law (part I); European Private Law and Access Justice (part II); the CJEU between the individual citizen and the Member States (part III). Foreword 1 Foreword 2 Contents 1. Introduction Part I. EU Consumer Law Part II. European Private Law and Access Justice Part III. The CJEU between the Individual Citizen and the Member States Part I: EU Consumer Law 2. An Average Consumer Concept of Bits and Pieces: Empirical Evidence on the Court of Justice of the European Union’s Concept of the Average Consumer in the UCPD I. The Relationship of the Average Consumerin Secondary Legislation to the Court’s Jurisprudence II. Overview of the Case Law on the UCPD Operationalising the ‘Average Consumer’ III. Summary of the Court’s Use of the Average Consumer Test in the UCPD IV. Analysis 3. Private Law Consequences of Unfair Commercial Practices I. Introduction II. The Development of the Ex Officio Obligation of Assessment of Fairness of Contract Terms III. Indirect Effects of Unfair Commercial Practices on a Contract IV. The CJEU's Refusal of the Application of Ex Officio Doctrine V. European Consumer Policy Perspective and the Fitness Check VI. New Deal for Consumers and Private Law Remedies in Case of Unfair Commercial Practices VII. Conclusions 4. A Consumer Perspective on Algorithms I. Introduction II. Algorithms and Their Use III. Effects on Consumers IV. Counter-Strategies? V. Algorithms and the Law VI. Control of Algorithms VII. A Duty to Explain Decisions? VIII. Conclusions 5. Technological Totalitarianism: Data,\xa0Consumer Profiling, and the Law I. Markets, Data, Profiling II. Profiling in the GDPR III. Responses of the GDPR IV. Further Discussion 6. EU Consumer Law and Artificial Intelligence I. Introduction II. Definition of Artificial Intelligence. Or, What Is This 'AI'? III. Black Box IV. Liability V. Asymmetry VI. AI Applications, Public Regulation and Private Commitment VII. The Autonomy of Humans and the Autonomy of Machines VIII. Instead of Conclusions: Empowerment Part II: European Private Law and AccessJustice in its Internal andExternal Dimensions 7. The General Transformationsof Private Law Since Léon Duguit I. Introduction II. Context: The Code Civil at 100 III. The Birth of the Social: Private Lawand La Fonction Sociale IV. The Turn of the Twenty-first Century:Law and Society Above and Beyond the State V. Functionalisation of Contract Law VI. Functionalisation of Tort Law VII. The Return of Sovereignty? 8. Some Reflections on the Self-Sufficiency of European Regulatory Private Law I. Introduction II. The Self-Sufficiency of ERPL III. Self-Sufficiency in EU Electronic Communications IV. Self-Sufficiency in Investment Services V. Conclusions 9. In Search of a Grand Theory of European Private Law: Social Justice, Access Justice, Societal Justice and Energy Markets I. Introduction II. The Mature Account of Access Justice III. Access Justice in EU Energy Market IV. Early Critiques to the Early Account of Access Justice V. How the Mature Account Addresses the Early Critiques VI. Conclusion 10. The Evolution of Direct Taxation in the EU: A Multi-Variable Equation I. Instead of an Introduction II. The Financial Crisis III. New Context, New Focus: Tax Planning, Aggressive Tax Planning, Tax Avoidance and Tax Evasion IV. Conclusion 11. The Evolution of European Insolvency Law from Regulatory Competition to Harmonisation I. The Evolution of EU Insolvency Law II. The Current Economic State in the EU: Some Context III. Commitment to More Harmonisation in EU Insolvency Law IV. Conclusion 12. Digitally-Provided Financial Servicesunder EU Law I. Introduction II. The Fintech Resolution: When TechnologyCreates a New (Cross-Border) Marketand Makes the Law Look Older III. Cross-Border Provision of Financial Services Now IV. A Case Study: Intra-EU Cross-Border Provisionof Investment Services V. ... And Then: The Commission’s Green Paperon Retail Financial Services VI. ... If So, On Which Basis? The Embryo of an Autonomous European (Regulatory) Contract Law VII. Conclusions 13. On Regulatory Experimentalism in European Private Law: The Legal Laboratory of Food and Finance I. Introduction II. Experimentalism in Private Law III. The Food Laboratory IV. The Finance Laboratory V. Conclusions 14. The Recent Developments in Arbitration and the European Regulatory Space I. Introduction II. The Implications of the Achmea Judgment for International Arbitration in the European Union III. Arbitration and the Advancement of European Regulatory Private Law IV. Conclusions 15. The Energy Community in its Second Decade: Where Does it Stand and Where is it Heading? I. Introduction II. Why an Energy Community and What Kind of Energy Community? III. EU Energy Law and its Role as Unifying Factor between Different Countries and Legal Jurisdictions IV. The Energy Community as a Success Story? V. Conclusions Part III: The CJEU between the Individua lCitizen and the Member States 16. Contestation and Accommodation: Constitutional and Private Law Pluralism(s) in the EU I. Introduction II. Contestation III. Accommodation IV. Conclusion 17. The Psychology of Judicial Co-operation: The Preliminary Reference Procedure as a Therapeutic Relationship I. Context: The Psychology of Doing a PhD II. Introduction: Linking Psychoanalysis and the Preliminary Reference Procedure III. Analysing the 'Psyche' of National Judges in EU Law IV. The Preliminary Reference Procedure as a Therapeutic Relationship V. Therapeutic Alliance: X and Van Dijk and Ferreira da Silva VI. Transference and Countertransference: Keck VII. Projective Identification: Grogan VIII. Conclusion: Lessons for the Preliminary Reference Procedure from Psychoanalysis 18. Law and Politics after Wightman: Taking\xa0Stock of Neo-Formalism in the EU I. Introduction II. The Three Globalisations of Legal Thought III. Wightman and Others IV. Wightman through the Lens of the Three Globalisations (and Beyond) V. Conclusion 19. Transforming the European 'Legal Field' by Strategic Litigation: A Research Agenda I. Introduction II. The Nature of the EU"s Hybrid Legal Space III. The Janecek Case IV. An Outlook 20. Defectiveness and Causation in Vaccine Liability Cases I. Introduction II. The Legal Framework III. Defectiveness and Causation IV. Conclusion 21. The Usage of Solidarity in the Jurisdiction of the CJEU I. Solidarity – What Does it Mean? How is it Used? II. Solidarity – How is it Used in Case Law? III. Conclusion Index A theory is grand when it is bold enough to embody ' the sociological imagination'. Among theorists committed to the epistemology of science, grand theorists that embody the sociological imagination are those who seek big visions in order to achieve lucid summations of what is going on in the world. It is the quality of all that is intellectually ambitious to tie micro-levels of reality to explain social reality. In times of specialisation in all social science, H-W Micklitz - the main character in this liber studentium - envisioned the development of a grand theory and stands alongside the grand theorists carefully chosen in his collection Privatrechtstheorie. Since 2007, the European University Institute has been the location of Hans' intellectual journey to give meaning to Europe's justice, in contrast to the emerging critique of Europe' s justice deficit in the aftermath of the Eurozone crisis. This chapter engages with what is arguably the most ambitious outcome of the European Regulatory Private Law Project, namely an account of the justice dimension of the EU. The concept of access justice in European private law, as it stands, deserves deep reflection and extended discussion. In this chapter, however, we intend to do something less ambitious. We intend to start a conversation - something Hans finds very important in academia - on the descriptive, conceptual, and normative attractiveness of access justice. To achieve this end, this chapter is structured as follows. Section II articulates the mature account of access justice and relates it to social and societal justice. Section III put these three concepts of justice into the context of the energy markets, which Hans claimed play a prominent role in EU economic (or private) law. 10 Section IV introduces several critiques to earlier accounts of access justice. In Section V, this allows us to consider how the mature account of access justice addresses them. Section VI concludes "This book is written in honour of Hans-W. Micklitz for his jubilee 70th birthday and the closure of his twelve-year term as the Chair for Economic Law at the European University Institute (EUI). Hans-W. Micklitz has gained international recognition for dedicating his extensive and fruitful career to diverse areas of law: European Economic Law, European Private Law, National and European Consumer Law, Legal Theory, theories of Private Law and Social Justice. This book is a product of the collaborative endeavors of its contributors, who all have a special connection with Hans W. Micklitz as his doctoral supervisees or research assistants. The collection of twenty chapters is to be read as the influence of Hans's dialogues in the early stage of the academic career of thirty-one young legal scholars. The volume is divided into three sections devoted to subjects that have received Hans's attention while at the EUI: EU Consumer Law (part I); European Private Law and Access Justice (part II); the CJEU between the individual citizen and the Member States (part III)."-- Provided by publisher