The Responsibility of Private Actors in the Internal Market

275 Pages·2016·2.6 MB·English

The Responsibility of Private Actors in the
Internal Market
Private Actors taking over?
Jan Trommer

Thesis submitted for assessment with a view to obtaining
the degree of Doctor of Laws of the European University Institute
Florence, 30 January 2017

European University Institute
Department of Law
The Responsibility of Private Actors in the Internal Market
Private Actors taking over?
Jan Trommer

Thesis submitted for assessment with a view to obtaining
the degree of Doctor of Laws of the European University Institute
Examining Board
Prof. Loïc Azoulai, Sciences Po Paris (Supervisor)
Prof. Marco Dani, University of Trento/LSE
Prof. Gareth Davies, Vrije Universiteit Amsterdam
Prof. Hans-Wolfgang Micklitz, EUI

© Jan Trommer, (2017)
No part of this thesis may be copied, reproduced or transmitted without prior permission of the
author

Researcher declaration to accompany the submission of written work
Department of Law – LL.M. and Ph.D. Programmes

I JAN TROMMER certify that I am the author of the work “The Responsibility of Private Actors in
the Internal Market – Private Actors taking over?” I have presented for examination for the Ph.D.
at the European University Institute. I also certify that this is solely my own original work, other
than where I have clearly indicated, in this declaration and in the thesis, that it is the work of
others.
I warrant that I have obtained all the permissions required for using any material from other
copyrighted publications.
I certify that this work complies with the Code of Ethics in Academic Research issued by the
European University Institute (IUE 332/2/10 (CA 297).
The copyright of this work rests with its author. Quotation from this thesis is permitted, provided
that full acknowledgement is made. This work may not be reproduced without my prior written
consent. This authorisation does not, to the best of my knowledge, infringe the rights of any third
party.
I declare that this work consists of 99.322 words.

Statement of inclusion of previous work (if applicable):
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Statement of language correction (if applicable):
This thesis has been corrected for linguistic and stylistic errors.
Signature and date:

Jan Trommer, 30 January 2017

Abstract

The picture presented and often referred to in EU internal market law and legal
scholarship is clear. Within the internal market private actors are the recipients of
rights and public authorities are constrained in their (regulatory) powers. The notion
of this new individualism is bound up with capacities, powers, and resources that
empower private actors to engage in the internal market and cross-border situations;
ultimately serving the objectives the internal market seeks to attain. Yet, within this
new individualism a conceptually different class of private actors has emerged that is
constrained in economic freedoms, i.e. through obligations, rather than being
empowered in the context of the internal market. This thesis will enquire the reasons
that led to the development of this counter-culture. Why did it emerge? To what extent
does this phenomenon affect the roles of private actors in the internal market?

I will demonstrate that under the counter-culture private actors are responsibilized
and transformed into ‘competent authorities’, i.e. alternative forms of regulatory
authority, in the internal market. Private actors are placed into systems of shared
responsibilities the relationships of which are coordinated by EU internal market law.
In this regard, the concept of responsibility will serve as a tool to bridge the gap
between the new positions EU internal market law allocates to private actors and the
emerging legal consequences, i.e. allocation of obligations or tasks. The legal contexts
of EU free movement law, EU discrimination law, EU food safety law and EU data
protection law will serve as case studies against which the construed conceptual
framework will be tested. Under the counter-culture the new individualism is no
longer only about the exercise of self-interests. Rather, this form of the new
individualism comes with a requirement to give account to the interests of other
actors within the internal market.

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Acknowledgements

In these final days of writing and formatting of my thesis I thought a lot about the
past years and all the outstanding people that supported me in this long process of
research, writing and re-writing, drafting and re-drafting. First, I want to thank Loïc
Azoulai who I got to know as an outstanding scholar and person encouraging me to
follow and develop my own thoughts and ideas about EU law. His authentic
enthusiasm about my topic paired with his curiosity about new methodological
approaches to legal issues in EU law is fascinating and I am deeply grateful for his
support throughout the different stages of my thesis. I will miss your e-mails titled:
‘This might be of interest to you…’

At the EUI I want to thank Claire Kilpatrick, Hans-Wolfgang Micklitz and Giorgio
Monti who I got to know as exceptional scholars, which always had an open ear for
ideas, thoughts and problems. I always felt in good hands when talking to you about
issues that concerned me personally and academically. I also want to thank Hans-
Wolfgang Micklitz, Marco Dani and Gareth Davies to accept to function as the
professorial panel for my defence and for giving me the opportunity to discuss my
thoughts with you.

In one of our first meetings in the theatre of the Badia in 2011 we were told that the
ambition of the administration is to provide an environment at the EUI where we as
researchers should be able to solely focus on our work and projects. After five years I
can tell: you did an excellent job. My special thanks go to Marlies, Eleonora, Laurence
and Grit for their open doors and help with any problems and issues encountered
during my stay in Florence.

Yet, Florence and the EUI is not only about work, but it is about the people you
meet and the time you spend inside and outside the doors of the Badia or Villa
Schifanoia. Jan, Jon, Guilherme, Luisa, Benedita, Barend, Hanna, Emma and Philipp,
it was a pleasure to meet you, work with you and spend unforgettable nights in the
Florentine Bars and Piazzas. I hope there are more to come throughout Europe now.

I owe special thanks to my friends in Germany, which supported me during the last
months of writing and re-writing: Markus and Mandy, Peppo, Sepp, Teti and Kathi,
Gerard and Lea, Anna Sofia, Russell, Lennard and Anna, Tobi and Katha. Thank you.
Now the writing is over.

My final words go to Uli, Christiane, Paul, Valli und Peet without whom I would not
have managed to come to this point. Family always was the place for me to reenergize
and words cannot express the gratitude I owe to you. Mama und Papa, you always
encouraged me to go my own way and wipe out any concerns failing. Your openness
towards questions and thoughts about my thesis and your willingness to provide the
largest help possible was remarkable. Sometimes we agreed, sometimes we did not.
Yet, continuously, in any personal crisis you provided the safety net in which I could
fall back and find the energy to restart. Without you I would not have pushed
through the last 5% of work. Thank you!

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