Économisation ou expérimentalisme dans le droit privé sectoriel de l’Union européenne ?

The article contests the claim that the content and institutions of European Union private law are narrowly circumscribed by a market rationality. Such a claim tracks broader criticism of EU functional legal integration, but at the same time, it tends to obscure the underlying transformative pressures on private law and regulation and the role that EU law and governance play in coping with such pressures. The article offers a number of counter-narratives based on examples from the regulated sectors, including telecommunications and energy, to reveal their experimentalist features. They show that EU private law is constructed through a process of error-corrections, which allows for mutual adjustment of instruments and hybridisation of EU-level and local policy goals. The resulting more finely grained assemblages of autonomy and regulation respond to identified concrete problems or newly salient policy goals. If we understand functional differentiation through the prism of specialisation of goals and instruments, excessive focus on competence allocation in multi-level governance only strengthens habitual patterns of action for EU and national actors. An abandonment of the fetishism of the competitive market does not mean abandonment of the market, but a recognition that markets are nothing but social institutions and that there is no one optimal way to discipline market actors. Thus, if markets are always works-in-progress rather than convergence points the EU?s regulatory private law can be viewed as a platform for building transnational markets through innovating institutions that promote various normative and public policy commitments, despite the interdependencies that could undermine them.