Debt and relief: a holistic approach to the legal treatment of consumer debt

The awareness that consumer over-indebtedness is a problem which needs to be tackled through specific measures most clearly emerged at the end of a period in which increased availability of retail financial services was presented as a means to promote consumers’ welfare. While, on the one hand, over-indebtedness is regarded as a problem to be counteracted, European law and policy, on the other hand, promote indebtedness, leading to a fragile equilibrium between opposing purposes which permeate the regulatory framework. How can the two objectives be reconciled, allowing for well-ordered development of a credit-based economy in which debtors in financial trouble are not left behind? This paper suggests the necessity of taking a holistic approach to over-indebtedness, starting from the assumption that, rather than being the manifestation of individual inability to properly deal with finance, the phenomenon is inherent to a credit economy and that modern law must therefore tackle it systematically through a combination of measures: private and public, contractual and non-contractual, preventive and curative, national and supranational. While articulating a critique of some of the rationales underlying ‘debt law’, the paper highlights the necessary interrelation between the possible legal strategies against household over-indebtedness and the need to coordinate them in order to reach an adequate level of protection

The transnational and the local in the comparative law of finance: technics, politics, and the functions of commercial law

In the absence of a global regulator, transnational financial law emerges from the combination of national laws and the contractual practices developed by networks of private, public and hybrid private-public actors who contribute to the engineering and (self-)regulation of financial services largely through contracts. The theoretical question arises whether the process of transnationalisation might determine the dominance of economic rationality over other considerations, and whether a possible nationalisation of the transnational might instead produce a repoliticisation of the economic. Against this background, the article focuses on some of the instruments of transnational financial self-regulation, and considers how these interact ambivalently with local laws and judicial practices. By looking at the role of private law institutions and considering national litigation over financial contracts in different jurisdictions, the article reveals tensions between different objectives, ultimately raising questions about the function of commercial law both within and beyond the state

Qu’est-ce que le droit privé réglementaire européen ? Enjeux et perspectives

Le droit privé ne peut plus être compris en se référant exclusivement au droit général des contrats que l’on trouve dans les codifications nationales ou dans les décisions de principe des tribunaux. L’influence grandissante des règlements et directives européens destinés à réaliser des objectifs politiques spécifiques, l’interprétation du droit national à la lumière des objectifs économiques selon une dimension transnationale et le développement d’espaces alternatifs, mais percutants, d’élaboration du droit et de règlement des différends, tant aux niveaux européen que nationaux, contribuent à mettre en évidence ce que l’on qualifie de droit privé réglementaire européen. La présente contribution propose une introduction à cette notion et se concentre, en particulier, sur ses fondements théoriques clés, en mettant en exergue tant leur importance pour le droit privé que les problématiques qui en découlent, notamment une discussion autour des critiques qui ont été émises à leur encontre

Financial stability in private law: intersections, conflicts, choices

The article discusses how the emergence of a policy of financial stability in international and European economic law has an impact on private relations, leading private law itself to become an instrument of financial stability. The result is an intersection of financial regulation and private law whereby financial regulation addresses consumer protection top-down and private law addresses financial stability bottom-up. The incorporation of the goal of financial stability nonetheless creates tensions in private law, since the latter aims at further objectives, occasionally leading to conflicts. The article shows how the accommodation of those objectives requires the striking of balances, and discusses instances in which case law of European courts arbitrated between different interests producing dissimilar results in different contexts. This casts further doubts on the consistency of the notion of financial stability as a policy or legal principle; despite its prominence at the international and European level, it unfolds in different forms depending on the interests at stake

La sovranità economica fra diritto interno e diritto transnazionale dell’economia. Considerazioni alla luce dell’esperienza britannica

Economic sovereignty between domestic and transnational economic law. Considerations around the British experience – The article considers the case of Brexit in order to discuss the question of economic sovereignty within the international economic order, placing emphasis on the public and private interests behind that notion. The first part of the contribution looks at the concept of sovereignty in the British constitutional system highlighting its socio-economic underpinnings. The second part moves on to examine the ways in which economic sovereignty plays out in the international economic context, referring to both supranational and transnational phenomena, and aiming at overcoming the predominant narrative which opposes the state - in this particular case the UK - on the one hand and the European Union on the other hand. The contribution does not aim at re- discussing the notion of sovereignty possibly placing it against processes of globalisation, but rather at highlighting how different social and economic interests, of both public and private nature, might find expression through those channels

The general transformations of Private Law since Léon Duguit. Autonomy, responsibility and sovereignty in European Private Law

Abstract: This contribution compares the transformations taking place in European private law in recent years to the transformations first described one century ago in French legal scholarship confronted with the interpretation of the French Code Civil in a deeply changed social context. That scholarship, epitomised by personalities like Léon Duguit, challenged the dominant legal formalism, with its emphasis on the subjective right, insisting instead that private law and the state perform social functions. Duguit’s legal functionalism remains a useful lens through which to examine contemporary transformations of private law and the state in an EU context. In fact, contemporary law is characterised by new economic, technological, and societal processes which produce an increased level of complexity linked to new ‘transformations’ of private law. This contribution thus highlights the characteristics of those transformations separated by a century of legal evolution attempting to trace them in the specific area of European private law. A considerable difference between ‘then’ and ‘now’ is that those processes of transformation that Duguit noted now take place beyond a territorial defined state in the context of market-building in a supranational arena. This leads to a greater, and unimagined, blurring if not bypassing of the public-private divide. Duguit’s ‘legal theory without sovereignty’ well describes these developments but is now under pressure from renewed idealisms

Challenging legal culture

With a view to stimulating discussion regarding one of the most widespread methodological approaches in current legal studies and, in particular, in comparative private law, this paper challenges the notion of legal culture. Although focussing on the link between law and culture can be considered a heterodox approach that contributes to a better understanding of the dynamics of the legal system, this paper argues that the way in which legal culture is mostly understood in the discussions of comparative and European (private) lawyers is biased such that instead of shedding light on the deeper dynamics of the legal system it rather obfuscates them. This is mostly due to a static understanding of legal culture as national legal culture. Rather than erroneous, this conceptualisation appears as insufficient. This hints at the necessity of adopting a dynamic and pluralistic understanding of legal culture that escapes hegemonic consequences

Financial education(s). Developments and manifestations of financial literacy in EU law and policy

The recently adopted new Consumer Credit Directive has attracted large interest from academics ever since its original proposal was first unveiled by the European Commission two years ago. Commenting already on that proposal, scholars have noted, among other things, its continuity with the inspiration of the Mortgage Credit Directive and that the new instrument pays more attention to digitalisation. This contribution focuses on an only seemingly minor aspect of the CCD II, namely its reference to financial education. It takes this as an opportunity to reflect on developments in EU law regarding the promotion of consumers’ financial literacy, in an attempt to uncover what is the model of financial education which underpins EU law

The financialization of the citizen: social and financial inclusion through European private law

Book synopsis: This book discusses the role of private law as an instrument to produce financial and social inclusion in a context characterised by the redefinition of the role of the State and by the financialisation of society. By depicting the political and economic developments behind the popular idea of financial inclusion, the book deconstructs that notion, illustrating the existence and interaction of different discourses surrounding it. The book further traces the evolution of inclusion, specifically in the European context, and thus moves on to analyse the legal rules which are most relevant for the purposes of bringing about the financialisation of the citizen. Hence, the author focuses more on four highly topical areas: access to a bank account, access to credit, over indebtedness, and financial education. Adopting a critical and inter-disciplinary approach, The Financialisation of the Citizen takes the reader through a top-down journey starting from the political economy of financialisation, to the law and policy of the European Union, and finally to more specific private law rules

Disgregazione ed europeismo critico nell’ordine economico globale

Book synopsis: Most believe that the economic crisis caused by the pandemic has finally led the European Union to change course, if only because it has decided to allocate huge aid financed by the common debt issue to the States. It's really like this