European Contract Law and Regulation

This article starts from the assumption that after the landmark decision of the European Court of Justice in Dieselgate of 2023, the relationship between (European) Contract Law, more broadly Private Law, and Regulation has to be revisited – in many ways. It is just as revolutionary for the whole of public good regulation as Courage was for the sub-area of antitrust law in 2001 (which led to the highly important Antitrust Damages Directive). The article tries to explain: that contract law and company law largely run in parallel, as they are the two prime fields of party autonomy, of shaping the economy and hence also of broad public good regulation; and that the development was from a primarily internal market oriented model (black box) to a more participatory model (red box) to one which increasingly gives public autonomy its equally important role besides private autonomy (green box). It sees this development in legislation, case law, but importantly, also in theory: to reach increasingly the Habermasian state of equal importance of private autonomy and public autonomy. This red thread has been little developed in literature even for legislation and case law, but certainly for underpinning social sciences and philosophical theory. Sustainability regulation – both social and ecological – is at the heart of this development. With this background, the article rather pleads for an integration of the two poles – than for a separation – and clearly favours a view, which would allow for private party claims whenever there are identifiable victims and harm (no superiority of the public good over private compensation). Case studies try to deepen these views in certain selected and paradigmatic areas: from regulation of consumer credit, via unfair terms to sales agreements. 5