This text presents a brief synthesis of the most important problems associated with the application of private law in the public sector which have arisen in the last 200 years in the States of Continental Europe. In the author’s view, the application of private law in the public sector is one of the key issues tackled by legal theorists in the EU Member States. At the same time, this issue is not limited to private-law relations involving public entities. In the last 200 years, the institutions and principles of civil law have also served as the building blocks for the development of public (administrative) law.
The analysis of the application of private law in the public sector can be very inspiring and fruitful. Such investigations help in unravelling the issues indicated in the subheadings of this text. Among other things, they brings us closer to grasping the essence of the public-private law division. The place of private law in the whole legal system can thus be defined more precisely. This analysis also provides methodological grounds for developing the concept of the constitutionalization of private law, including its most spectacular manifestation, namely the horizontal application of the constitution.
In the author’s opinion, the analysis of the application of private law in the public sector also confirms the efficacy of the functional method, which, while being one of the oldest methods employed in comparative law, still prevails in this field. This method is grounded in the conviction that similar or even identical problems occur in different countries. This is especially true of countries which are closely related in terms of their legal systems – such as the EU Member States. Consequently, the measures applied in one legal system to address certain problems are the functional equivalent of the solutions applied in other legal systems. Of course, these equivalents or counterparts may have varying degrees of effectiveness.
European Review of Private Law