Ogus, Anthony --- "The Regulation of Services and the Public–Private Divide" [2009] ELECD 311; in Cafaggi, Fabrizio; Muir Watt, Horatia (eds), "The Regulatory Function of European Private Law" (Edward Elgar Publishing, 2009)

Book Title: The Regulatory Function of European Private Law

Editor(s): Cafaggi, Fabrizio; Muir Watt, Horatia

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781847201997

Section: Chapter 1

Section Title: The Regulation of Services and the Public–Private Divide

Author(s): Ogus, Anthony

Number of pages: 13

Extract:

1. The regulation of services and the
public­private divide
Anthony Ogus

1. INTRODUCTION
The task I have set myself in this chapter is to explore the justifications for
regulating services and how public and private law may, in their different
ways, serve that purpose. I then consider the implications that the distinctions
between private and public law have for governance in a European context, in
particular how they relate to the arguments for harmonizing regulatory princi-
ples. First, however, I need to explain what is meant by the `regulation of
services'.


2. WHAT IS THE `REGULATION OF SERVICES'?
The concept of `services' is not easy to define. For the purposes of this chap-
ter, I take it to have the broad meaning attributed to it in the programme of the
European Commission, leading to the Draft Directive on `Services in the
Internal Market'.1 This seems to cover almost all forms of trading except the
supply of goods, thus including `a large variety of activities, such as consul-
tancy services, certification services, estate agents, engineering, construction,
distribution, tourism, leisure and transport'2 and normally the subject of a
contract between supplier and consumer.
In order to make helpful generalizations about the regulation of these broad
ranges of activities, we need to understand the different types of market fail-
ure and therefore the forms of regulation to which they have given rise. At the
most general level, we can identify four main types of market failure:3



1 COM (2002) ...