Volume 20, Issue 4

This article analyses the impact of the digital acquis on the regulation of market relations governed by private law. The hypothesis is that a new EU digital private law is emerging that deconstructs the existing EU private law acquis and paves the way for an emergent constitutional order of digital private law, which has three distinct levels. The three levels of the EU digital order broaden the scope of digital private law to ever more addressees and establish distinct modes of private law and models of justice. While on the constitutional level, no particular mode of private law is established, at the levels of market ordering and horizontal transactions respectively we find contracts and advertisements on the one hand and contract law on the other as the specific modes of private law. There are also differences with regard to the model of justice they establish, reaching from access justice and non-discrimination to freedom from manipulation and substantive fairness. As a result of this three-levelled analysis, it becomes possible to identify breakdowns and extensions of concepts, as well as the emergence of and interactions between different modes of private law governance and justice.

The dynamics of contractual interactions have been evolving in recent years, as big data introduces new dimensions to previously conventional contracts. This development intensifies the information asymmetry between the dominant and vulnerable parties, posing increasing challenges for consumers and the entirety of European contract law. This paper offers three main contributions to this discourse. First, the utilization of big data introduces a novel form of information asymmetry between contracting parties, further empowering the already dominant party while exacerbating the vulnerability of the weaker party. Second, contemporary European case law and legal scholarship advocate for a harmonious approach in which European regulations and national remedies complement one another in protecting individuals. Lastly, there are already instances indicating the misuse of big data, where multiple individual claims may arise at both European and national levels.

The decision of the European Court of Justice in M D v Tez Tour UAB addresses four different questions and provides further insight into the concept of ‘unavoidable and extraordinary circumstances’ under Article 12(2) of Directive (EU) 2015/2302. This judgment certainly strengthens the protection of consumer travellers by extending the scope of the provision. However, as this contribution highlights, the decision also introduces several elements of uncertainty that are likely to cascade into domestic litigation and generate lively debate among academics. The most critical issue is undoubtedly the relationship between the average and the vulnerable consumer/traveller.