Allison, J. W. F. 2000. A Continental Distinction in the Common Law: An Historical and Comparative Perspective on English Public Law. Oxford: Oxford University Press.Google Scholar
Arendt, Hannah. 1998. The Human Condition. Chicago: University of Chicago Press.Google Scholar
Azoulai, Loïc. 2008. The Court of Justice and the Social Market Economy: The Emergence of an Ideal and the Conditions for Its Realization. Common Market Law Review 45:1335.Google Scholar
Azoulai, Loïc. 2010. Sur un sens de la distinction public/privédans le droit de l’Union européenne. In The Public/Private Divide in European Union Law, edited by Sophie Robin-Olivier et al. Cejec-Wp 2010/7. www.cejec.eu
Baquero Cruz, Julio. 2002. Between Competition and Free Movement: The Economic Constitutional Law of the European Community. Oxford: Hart.Google Scholar
Baquero Cruz, Julio. 2007. The State Action Doctrine. In EC Competition Law – A Critical Assessment, edited by G. Amato and C.-D. Ehlermann. Oxford: Hart.Google Scholar
Barnard, Catherine. 2010. The Substantive Law of the EU: The Four Freedoms. Oxford: Oxford University Press.Google Scholar
BeVier, L., and J. Harrison. 2010. The State Action Principle and Its Critics. Virginia Law Review 96:1767.Google Scholar
Bobbio, Norberto. 1989. Democracy and Dictatorship: The Nature and Limits of State Power. Oxford: Polity.Google Scholar
Böhm, Franz. 1966. Privatrechtsgesellschaft und Marktwirtschaft. Ordo 17:75.Google Scholar
Bomhoff, Jacco. 2008. Luth’s 50th Anniversary: Some Comparative Observations on the German Foundations of Judicial Balancing. German Law Journal 9:121.Google Scholar
Buchanan, G. S. 1997a. A Conceptual History of the State Action Doctrine: The Search for Governmental Responsibility (Part I of II). Houston Law Review 34:34333.Google Scholar
Buchanan, G. S. 1997b. A Conceptual History of the State Action Doctrine: The Search for Governmental Responsibility (Part II of II). Houston Law Review 34:665.Google Scholar
de Búrca, Gráinne, and Joseph H. H. Weiler, eds. 2011. The Worlds of European Constitutionalism. Cambridge: Cambridge University Press.Google Scholar
Calliess, G. P., and P. Zumbansen. 2010. Rough Consensus and Running Code: A Theory of Transnational Law-Making. Oxford: Hart.Google Scholar
Chemerinsky, Erwin. 1985. Rethinking State Action. Northwestern University Law Review 80:503.Google Scholar
Cherednychenko, O. 2008. Subordinating Contract Law to Fundamental Rights: Towards a Major Breakthrough or Towards Walking in Circles? In Constitutional Values and European Contract Law, edited by Stefan Grundmann. Alphen aan den Rijn: Kluwer Law International, 35.Google Scholar
Choper, Jesse H. 1979. Thoughts on State Action: The Government Function and Power Theory Approaches. Washington University Law Quarterly 757.Google Scholar
Cohen, M. R. 1927. Property and Sovereignty. Cornell Law Quarterly 13:8.Google Scholar
Craig, Paul, and Gráinne de Búrca. 2011. EU Law: Text, Cases, and Materials. Oxford: Oxford University Press.Google Scholar
Davies, C. L. 2008. One Step Forward, Two Steps Back? The Viking and Laval Cases in the ECJ. Industrial Law Journal 37:126.Google Scholar
Engle, Eric. 2009. Third Party Effect of Fundamental Rights (Drittwirkung). Hanse Law Review 5:165.Google Scholar
Fischer-Lescano, A., and G. Teubner. 2003. Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law. Michigan Journal of International Law 25:999.Google Scholar
Glennon, Jr. R. J., and J. E. Nowak. 1976. A Functional Analysis of the Fourteenth Amendment State Action Requirement. The Supreme Court Review 221.Google Scholar
Gripsrud, Jostein, Hallvard Moe, Anders Molander, and Graham Murdock, eds. 2010. The Idea of the Public Sphere: A Reader. Lanham, Boulder, New York, Toronto, Plymouth: Lexington Books.Google Scholar
Grundmann, Stefan. 2008. The Concept of the Private Law Society: After 50 Years of European and European Business Law. European Review of Private Law 4:553.Google Scholar
Habermas, Jürgen. 1991. The Structural Transformation of the Public Sphere: An Inquiry into a Category of Bourgeois Society. Cambridge, Mass.: MIT Press.Google Scholar
Habermas, Jürgen. 2001. The Postnational Constellation: Political Essays. Cambridge, Mass.: MIT Press.Google Scholar
Hale, R. L. 1952. Freedom Through Law: Public Control of Private Governing Power. New York, NY: Columbia University Press.Google Scholar
Harlow, Carol. 1980. Public’ and “Private” Law: Definition without Distinction. Modern Law Review 43:241.Google Scholar
Hatzopoulos, Vassilis. 2012. Regulating Services in the European Union. Oxford: Oxford University Press.Google Scholar
Hershkoff, Helen. 2011. Privatizing Public Rights: Common Law and State Action in the United States. Presented at the European University Institute Department of Law Legal and Political Theory Working Group, text on file with the authorGoogle Scholar
Hesselink, Martijn Willem. 2006. The Politics of a European Civil Code. Alphen aan den Rijn: Kluwer Law International.Google Scholar
Horowitz, H. W. 1956. The Misleading Search for State Action under the Fourteenth Amendment. Southern California Law Review 30:208.Google Scholar
Huhn, W. R. 2006. The State Action Doctrine and the Principle of Democratic Choice. Hofstra Law Review 34:1379.Google Scholar
Komesar, Neil K. 1994. Imperfect Alternatives: Choosing Institutions in Law, Economics, and Public Policy. Chicago: University of Chicago Press.Google Scholar
Krisch, Nico. 2010. Beyond Constitutionalism: The Pluralist Structure of Postnational Law. Oxford: Oxford University Press.Google Scholar
Krzeminska-Vamvaka, Joanna. 2009. Horizontal Effect of Fundamental Rights and Freedoms – Much Ado about Nothing? German, Polish and EU Theories Compared After Viking Line. Jean Monnet Working Paper 11/2009.Google Scholar
Kumm, Mattias. 2006. Who is Afraid of the Total Constitution?: Constitutional Rights as Principles and the Constitutionalization of Private Law. German Law Journal 7:341.Google Scholar
Leible, S. 2008. Fundamental Freedoms and European Contract Law. In Constitutional Values and European Contract Law, edited by Stefan Grundmann. Alphen aan den Rijn: Kluwer Law International.Google Scholar
Manning, Brayless. 1960. Corporate Power and Individual Freedom: Some General Analysis and Particular Reservations. Northwestern University Law Review 55:38.Google Scholar
Michelman, Frank I. 1999. W(H)ither the Constitution. Cardozo Law Review 21:1063.Google Scholar
Michelon, Claudio. 2012. The Public Nature of Private Law? In The Public in Law: Representations of the Political in Legal Discourse, edited by Cláudio Michelon et al. Farnham: Ashgate, 195.Google Scholar
Monti, Giorgio. 2008. Managing the Intersection of Utilities Regulation and EC Competition Law. Competition Law Review 4:123.Google Scholar
Neergaard, Ulla B. 1998. Competition & Competences: The Tensions between European Competition Law and Anti-Competitive Measures by the Member States. Copenhagen: DJØF.Google Scholar
Nowak, William J. 2009. Public-Private Governance: A Historical Introduction. In Government by Contract: Outsourcing and American Democracy, edited by J. Freeman and M. Minow. Cambridge, Mass.: Harvard University Press.Google Scholar
Odudu, Okeoghene. 2006. The boundaries of EC competition law: the scope of Article 81. Oxford: University Press.Google Scholar
Odudu, Okeoghene. 2009. Economic Activity as a Limit to Community Law. In The outer limits of European Union Law, edited by Catherine Barnard and Okeoghene Odudu. Oxford: Hart.Google Scholar
Oliver, Dawn. 1999. Common Values and the Public-Private Divide. London: Butterworths.Google Scholar
Prechal, Sacha, and Sybe de Vries. 2009. Seamless Web of Judicial Protection in the Internal Market? European Law Review 5.Google Scholar
Ruffert, Matthias, ed. 2009. The Public-Private Law Divide: Potential for Transformation? London: BICL.Google Scholar
Sachs, Michael. 2003. Verfassungsrecht II: Grundrechte. Berlin Heidelberg: Springer.Google Scholar
Sauter, Wolf, and Harm Schepel. 2009. State and Market in European Union Law: The Public and Private Spheres of the Internal Market before the EU Courts. Cambridge: Cambridge University Press.Google Scholar
Schepel, Harm. 2012. Constitutionalising the Market, Marketising the Constitution, and to Tell the Difference: On the Horizontal Application of the Free Movement Provisions in EU Law. European Law Journal 18:177.CrossrefGoogle Scholar
Schwarzschild, M. 1988. Value Pluralism and the Constitution: In Defense of the State Action Doctrine. The Supreme Court Review 129.Google Scholar
Seidman, L. M. 1993. The State Action Paradox. Constitutional Commentary 10:379.Google Scholar
Semmelmann, Constanze. 2010. The European Union’s Economic Constitution under the Lisbon Treaty: Soul-Searching Shifts the Focus to Procedure. European Law Review 35:516.Google Scholar
Snell, Jukka. 2002. Private Parties and the Free Movement of Goods and Services. In Services and Free Movement in EU Law, edited by M. Andenas and W. H. Roth. Oxford: University Press.Google Scholar
Spaventa, Eleanor. 2011. The Horizontal Application of Fundamental Rights as General Principles of Union Law. In A Constitutional Order of States?: Essays in EU Law in Honour of Alan Dashwood, edited by Anthony Arnull et al. Oxford: Hart.Google Scholar
Sunstein, Cass R. 2002. State Action is Always Present. Chicago Journal of International Law 3:465.Google Scholar
Taylor, G. 2002. The Horizontal Effect of Human Rights Provisions, the German Model and Its Applicability to Common-Law Jurisdictions. King’s College Law Journal 13:187.Google Scholar
Teubner, G. 2004. Global Private Regimes: Neo-Spontaneous Law and Dual Constitution of Autonomous Sectors in World Society? In Globalization and Public Governance, edited by Karl-Heinz Ladeur. Farnham: Ashgate, 71.Google Scholar
Tushnet, Mark. 2003. The Issue of State Action/Horizontal Effect in Comparative Constitutional Law. International Journal of Constitutional Law 1:79.Google Scholar
Walker, Neil. 2012. On the Necessarily Public Character of Law. In The Public in Law: Representations of the Political in Legal Discourse, edited by Cláudio Michelon et al. Farnham: Ashgate, 9.Google Scholar
Weintraub, Jeff. 1997. The Theory and Politics of the Public/Private Distinction. In Public and Private in Thought and Practice: Perspectives on a Grand Dichotomy, edited by Jeff Weintraub and Krishna Kumar. Chicago: of Chicago Press.Google Scholar
Yeung, Karen. 2010. The Regulatory State. In The Oxford Handbook of Regulation, edited by Robert Baldwin et al. Oxford: Oxford University Press, 64.Google Scholar
About the article
Published Online: 2014-05-22
Published in Print: 2013-08-01
See inter alia Arts 34, 45, 49, 56 and 63 of the Treaty on the Functioning of the European Union (TFEU).
Even Art 34 TFEU on free movement of goods and Art 63 TFEU on free movement of capital refer only to restrictions “between” Member States, which on a strictly textual reading could also be created by private actors. Art 49 prohibits “restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State”, Art 56 covers all “restrictions on freedom to provide services within the Union” with a cross-border element, and Art 45 TFEU merely says “Freedom of movement for workers shall be secured within the Union”.
Case 26-62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration (1963), section B.
Later on, for the same purpose, the Court developed the Francovich doctrine of Member State liability for damages caused to individuals by violations of EU law (Joined cases C-6/90 and C-9/90, Andrea Francovich and Danila Bonifaci and others v Italian Republic (1991) ECR I-5357), as well as the notion that competition law violations must be followed by adequate and dissuasive sanctions (Case C-453/99, Courage Ltd v Bernard Crehan and Bernard Crehan v Courage Ltd and Others (2001) ECR I-629722).
Case C-281/98 Roman Angonese v Cassa di Risparmio di Bolzano SpA (2000) ECR I-4139, p. 35. See also case C-319/06, Commission v. Luxemburg (2008) ECR I-4323, p. 30 and 43. AG Lenz has characterised “the right to freedom of movement as a fundamental right which the Treaty confers individually on each worker in the Community” (AG Opinion in Case C-415/93, Union royale belge des sociétés de football association ASBL v Jean-Marc Bosman, Royal club liégeois SA v Jean-Marc Bosman and others and Union des associations européennes de football (UEFA) v Jean-Marc Bosman (1995) ECR I-4921, p. 203).
In the field of taxation, see e.g. Case C-282/07, Belgian State – SPF Finances v Truck Center SA (2008) ECR I-10767, p. 22–23.
If individuals could not rely on EU law against other individuals, the Member States could exempt areas of regulation from EU law scrutiny by delegating to private groups. In such a situation the only recourse against private violations of EU law would be to raise a claim against the Member State for tolerating them. That claim, however, might not be possible under domestic procedural law, or there might be evidentiary hurdles (e.g. showing a causal link between Member State inaction and the actual infringement of EU law committed by an individual). Bringing the case to the EU level would be doubly difficult – the Commission would have to be persuaded to raise a dispute between individuals to the level of an infringement action against a Member State. An example where that type of action was raised in this context is the Spanish Strawberries judgment, Case C-265/95, Commission of the European Communities v French Republic (1997) ECR I-6959.
A more complex issue is whether the domestic producer could seek damages from the State on the basis of reliance interests, including on the basis of the Francovich doctrine.
Case 58/80, Dansk Supermarked A/S v A/S Imerco (1981) ECR 181.
See Angonese (n 8), as well as Case C-94/07, Andrea Raccanelli v Max-Planck-Gesellschaft zur Förderung der Wissenschaften eV (2008) ECR I-5939.
This debate is particularly relevant to the question whether the free movement rules should apply to conduct that is also covered by the competition rules. See e.g. Odudu (2006, 30–33) and Odudu (2009, 263 et seq).
Burton v Wilmington Parking Authority, 365 US 715 (1961).
As Kumm summarises, “under the guise of interpreting the general clause [of the civil code] the judge is required to make exactly the kind of determination that he would have been required to make were he to directly adjudicate competing constitutional rights” (p. 356).
Case 36-74, B.N.O. Walrave and L.J.N. Koch v Association Union cycliste internationale, Koninklijke Nederlandsche Wielren Unie and Federación Española Ciclismo (1974) ECR 1405, pp. 17–18; Bosman, pp. 82–83.
This suggestion is usually associated with the Opinion of AG Maduro in C-438/05, International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti (2007) ECR I-10779.
Nowak (2009, 32), in a historical overview that extends as far back as the nineteenth century, describes how “the United States developed a preference for balancing public direction with private initiative and regulating the private excesses and market failures of competition and monopoly with what J.K. Galbraith termed ‘countervailing’ public power.”
See, however, the recent judgment in Case C-171/11, Fra.bo SpA v Deutsche Vereinigung des Gas- und Wasserfaches eV (DVGW) – Technisch-Wissenschaftlicher Verein (12.7.2012., nyr) where the Court explains the extension of the rules on free movement of goods to a private standard-setting body both by the ex post acceptance of their standards through national legislation and by the practical difficulty of using alternative means to access the market in question.
According to Tushnet, the idea of applying constitutional guarantees to private conduct thus combines two strands of liberalism: one which focuses attention to the threats governments pose for to human rights and another which focuses on the substantive scope of the human rights themselves.
As Manning concludes: “In any society, important economic and political decisions must be made and someone has to make them. The tough problem is how to allocate decision- making power on particular kinds of issues to the persons or institutions most likely to exercise it to produce the policy results we want… The question is not Power; it is policy” (p. 46).
C-341/05, Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avdelning 1, Byggettan and Svenska Elektrikerförbundet (2007) ECR I-11767, C-438/05, International Transport Workers’ Federation and Finnish Seamen’s Union v Viking Line ABP and OÜ Viking Line Eesti (2007) ECR I-10779. See Azoulai (2008, 1344–1346); Davies (2008, 135–136).
See n 14.
Several developments seem to point in that direction. Even though the Court never explicitly endorsed the AG’s reasoning in Viking Line (supra n 28), it has nevertheless found horizontal effect in the judgment. The more recent judgment in Fra.bo (supra n 31) is based at least in large part on the standard-setting body’s de facto, context-dependent power over market access (paras 30–31).
The Services Directive (Directive 2006/123/EC of the European Parliament and of the Council on services in the internal market (2006) OJ L376/36) explicitly states that it applies to “the rules of professional bodies, or the collective rules of professional associations or other professional organisations, adopted in the exercise of their legal autonomy” (see Arts 3/7 and 3/9). A different example is the Common Regulatory Framework for Electronic Communications, i.e. the Directive 2002/21 and the directives and regulations which have amended it over the years. Even though national regulatory agencies directly bear the brunt of the responsibilities, there can be no doubt that the anticompetitive behaviour of undertakings, especially telecom incumbents, is the main rationale for the Framework and that, as a consequence of the Framework, those undertakings are subject to detailed and intrusive regulatory controls.
See n 36.
See n 8.
Weintraub adds that there are differences within this perspective:
Locke and Adam Smith on the one hand, Hobbes and Bentham on the other, might be taken as the most distinguished representatives of the two poles within this universe of discourse: the side that leans toward a “natural” harmonization of selfish interests, whose grand theoretical achievement is the theory of the market; and the more technocratic, social-engineering side, which posits the need for a coercive agency standing above society (epitomized by Hobbes’s Leviathan). Ibid., at 8–9.
See in particular Arts 101 and 102 TFEU.
Case 43-75, Gabrielle Defrenne v Société anonyme belge de navigation aérienne Sabena (1976) ECR 455.
See supra n 3.
Case C-411/98, Angelo Ferlini v Centre hospitalier de Luxembourg (2000) Page I-08081.
See inter alia Case C-144/04, Werner Mangold v Rüdiger Helm (2005) ECR I-9981, Case C-555/07, Seda Kücükdeveci v Swedex GmbH & Co. KG (2010) ECR I-365 and Joined cases C-297/10 and C-298/10, Sabine Hennigs (C-297/10) v Eisenbahn-Bundesamt and Land Berlin (C-298/10) v Alexander Mai (8.9.2011., nyr).
In relation to the EU free movement rules, this argument is ubiquitous: Prechal and De Vries, for example, make it almost in passing, claiming that extending the horizontal effect of the free movement rules to all situations would be “a disproportionate interference with and permanent risk for the exercise of contractual freedom of private parties” (op. cit., 18).
Leible, supra n 17, at 68.
Of course, it is important to distinguish private action from private law, such as the law of contracts, which can undoubtedly be of a legislative or public character. Still, private law is often seen as the guarantor of contractual freedom and thus interfering with it through constitutional disciplines is seen as encroaching on the private sphere (Cf. the notion of a “private law society” – the classic here being Böhm 1966; see also Grundmann 2008 and Kumm 2006, 366). For a different perspective, see Michelon (2012) and Hesselink (2006).
As Spaventa points out, recognising the horizontal effect of the Treaty, general principles of law or fundamental rights is not costless – it is not just about “more rights” for one side, but also costs for the other. She then assumes that this burden should be placed on the State. “A party that acts following an unambiguous national rule might face disastrous economic consequences by virtue of the, sometimes random, application of Union law” (op. cit., 217).
“Thus, in cases presenting a true state action issue, the question is not whether the individual whose conduct is being challenged has a constitutional right to engage in that conduct; the power of the state to forbid that conduct is ordinarily conceded. Rather, given the state’s failure to do so, the question is whether, nonetheless, the authority delegated to the national government by the fourteenth amendment extends to prohibiting the individual’s conduct.”