EU as Global Regulator in Private Law: A Critical Analysis

The EU as global regulator in private law: a neo-liberal or a civiliser of capitalist enterprises Hans-W. Micklitz University of Helsinki/EUI Florence 5-2-2020

An American case to tell a European story? The Shell Petroleum Development Company of Nigeria, Ltd., one of the respondents, operated oil production facilities in the Ogoniland region of Nigeria. Esther Kiobel and the other petitioners were Nigerian nationals who alleged that they, or their relatives, were killed, tortured, unlawfully detained, deprived of their property, and forced into exile by the Nigerian government. The US Supreme Court had to deal with two questions 1. Under the Alien Tort Statute, are corporations immune from tort liability for violations of the law of nations, such as torture, extrajudicial executions, or genocide? 2. Upon reargument, does the Alien Tort Statute allow courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States 13/04/2025 Hans Micklitz The EU as regulator in private law 2

MS + EU involvement through amicus curiae On the side of Shell rejecting liability The Netherlands and the UK On neither side the European Commission but in fact supporting Kiobel: The United States can assume universal jurisdictions over a narrow category of the most grave international law violations In doing so extraterritorials application of the ATS not only respects comity but also ensure that courts remain open to claimants who might otherwise be subject to denial of justice 13/04/2025 Hans Micklitz The EU as regulator in private law 3

How to qualify the EU in trade and international public law? Neo-liberal (W. Streeck): Originally, the EU was an organisation for joint economic planning among six adjacent countries. Then it grew into a free-trade zone, increasingly devoted to spreading neoliberal internationalism, in particular the free movement of goods, services, capital and labour, under the rubric of the Internal Market. The gentle civilizer of nations: the rise and fall of international law (M. Koskenniemi) 13/04/2025 Hans Micklitz The EU as regulator in private law 4

The EU in private law: gentle cilizer of capitalist companies? The private law perspective on the making of the EU The EU missions: peace through trade 1950-1986 (direct effect and supremacy) internal market with a social face 1986 (SEA) - until today (labour, non-discrimination, environment) global player, 2000 (Lisbon Summit) - until today The colonial legacy civilizing companies and civilizing countries ( this time we get it right ) 13/04/2025 Hans Micklitz The EU as regulator in private law 5

What the EU does: private law regulation European international private law, Brussels Regulation and Rome I and Rome II The global reach of horizontally harmonised private law The global reach of vertically harmonised private in regulated markets (telecom, energy, finance, transport) The global reach of private ordering= private regulation (contracts in GVCs, codes of conducts and technical standards 13/04/2025 Hans Micklitz The EU as regulator in private law 6

The EU toolbox Traditional tools : European regulations and European directives Private law underground Co-Regulation: new approach on technical standards: regulated markets and the Banking Union Technical standards: European business associations CEN, CENELEC and ETSI Private regulation: Codes of Conduct, Standard Terms 13/04/2025 Hans Micklitz The EU as regulator in private law 7

On the Global Reach J. Scott + A. Bradford Extraterritoriality: application of EU law beyond its borders triggered by something other than the territorial connection with the EU Territorial extension: EU rules are applied to foreign conduct because of the territorial connection to the EU The Brussels effect: third countries overcomply with EU law even if not legally required 13/04/2025 Hans Micklitz The EU as regulator in private law 8

The Global Reach of European Regulatory Private Law Extraterritoriality territorial extension Brussels effect No territorial connection Kiobel? Territorial connection to foreign conduct Overcompliance with EU law and standards International private law CJEU Brussels Regulation Eg. West Tanker horizontally harmonised private rules EU tort law? CJEU Ingmar Vertically harmonised rules in regulated markets European agencies and European Commission? possible New approach on technical standards European Commission health and safety, data privacy, environment CJEU Frabo, Elliott, T V? Banking Union and technical standards European Commission? possible CEN, CENELEC and ETSI Private regulators? possible 13/04/2025 Hans Micklitz The EU as regulator in private law 9

ERPL as a gentle civilizer of capitalist companies? Empirical research on technical standards, codes and contracts (Cantero & Micklitz, Elgar 2020) Access to the research field and expertise in the research field Private, public and semiprivate actors The better rhetoric A word on legitimacy, potentiality and transnational competition 13/04/2025 Hans Micklitz The EU as regulator in private law 10