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Second Regime and Optional Instrument for European Contract Law – the Opinion of the Economic and Social Committee of the EU

Juni 10, 2010 By: udo.reifner Category: DCFR

Optional Code CES Statement for a DCFR 2010 English

Optinal Code CES Statement in Deutsch

Code Optional Comité Èconomique et Sociale en Francais

CES Committee releases Proposal for a 28th regime which puts the choice of national contract law und competitive pressure

1.8 The optional regime should therefore:

a) be conceived as a „2nd Regime“ in each Member State, thus providing parties with an option between two regimes of domestic contract law;
b) be defined at EU level and enacted by EU regulations;
c) facilitate interaction between parties in the drafting process;
d) contain provisions of mandatory law ensuring a high level of protection for the weaker party, at least similar to those granted by the EU or national mandatory rules, applicable whenever necessary;
e) limit the option of the parties to a choice of the entire instrument thus avoiding the possibility of „cherry-picking“.

3.1.5 A „2nd Regime“ would be particularly helpful in areas where private international law (Rome I) forbids or restricts the free choice of law by the parties, as is the case with transport (Article 5 Rome I), consumer (Article 6 Rome I), insurance (Article 7 Rome I) and employment (Article 8 Rome I) contracts. The optional instrument could even apply to internationally mandatory rules (Article 9 Rome I) provided that it takes sufficient care of the general interest protected by such rules . However, this 2nd regime should not apply to labour law or employment contracts in force in the Member States of the European Union3.2.2 This can be safeguarded by three means:

a) First of all, the „2nd Regime“ would have to provide for mandatory rules itself and to apply a high level of protection for the weaker party ;
b) Secondly, any exclusion of particular provisions of the „2nd Regime“ by agreement must be prevented in order to forbid a „mix“ of national law and the „2nd Regime“ by choosing the most relaxed standards from each source of law;
c) Consumer should be informed about the optional instruments through general consumer information provided by consumer organisations as well as a pre-contractual duty of the entrepreneur to inform the consumer that the contract offered is subject to the optional instrument.

… The network on „Common Principles of European Contract Law“ (CoPECL-Network) has recently finished its Draft Common Frame of Reference[1] and submitted it to the European Commission. Clearly, those rules provide the European legislator with a model which it could use when enacting an optional instrument as advocated by Commissioner Reding[2]. What is still needed is a rule on the optional application of the CFR/Common Principles in line with the already existing proposal of Article 1:102 PEICL[3].

Nogler/Reifner Social contracts and DCFR (trilingual Draft)

September 21, 2009 By: udo.reifner Category: DCFR

Luca Nogler/Udo Reifner

Social contracts in the light of the Draft Common Frame of Reference for a future EU Contract Code

1. The ignored social dimension of the DCFR

The Draft Common Frame of Reference[1] has been already criticized for its dogmatic weakness and political implications[2], extended scope by a limited basis[3], its broken relation to national legal cultures[4]. This essay wants to focus on the vertical questions of whether the DCFR would threaten and undermine the social acquis of continental European social contract law. Such an approach has a common basis with the critique from the Manifesto group[5] on the deficit in social justice shared by an increasing number of authors[6]. Even the EU-Parliament before officially discussing this Draft has asked to explore the „role of fairness and social justice in the DCFR“[7] which led to a general defence of the DCFR by a member of the Manifesto group recommending some minor amendments to its principles.[8]

Starting from the point that social justice is an important criteria for a future European Civil Code we choose a quite different methodology. Social justice as a yard stick as proposed by the EU-Parliament is a far too arbitrary and vague concept in private law. Its genus proximus is justice which all law has to obey to. Therefore one would have to concentrate on its differentia specifica which is hidden in the tiny word social. The English language, in which the DCFR paradoxically has been drafted by civil lawyers who have learned their English in a foreign legal context is already a barrier to a proper understanding of the word social in law.[9] Looking at its Latin roots (socius) does not help either since it refers only to such behaviour which we would call today joint or collective.[10] In this sense each legal rule is by definition a social norm[11] so that this denominator would be meaningless.

But the notion has since long evolved in present national as well as EU-social policies. To understand its meaning these development should have been taken much more into account by contract lawyers.[12] Social policy aims at ensuring a decent life for all. It concerns the generation and use of income in a modern money economy for managing one’s own family and social life in dignity providing access to those goods and services which are especially needed. It wants to protect human beings from all forms of poverty and deprivation especially from lack of income, usury and exploitation, insufficient means for personal well-being and give them shelter from (the effects) of unemployment, homelessness and overindebtedness.[13] These tangible foundations lead us to a solid ground where those contracts prevail which respond to the generally accepted aspirations of social policy which we would like to call social contracts.

Social contracts are long-term contracts on the way human life time is spent.[14] They comprise labour contracts as well as all other legal forms where labour is invested to gain one’s living through dependent long-term relations including collective forms of secondary labour income. Because labour income flows neither steady nor eternally and is not paid where it is needed credit services in money and in kind provide for its local and timely allocation. Credit is the necessary complementary contractual relation in which either income is allocated to when and where it is needed (consumer credit, mortgage loans, private pension schemes, educational finance; bank account and payment services) or in which access to certain services like housing, transportation, water, heat, electricity are provided in the form of deferred payments or rent. Social contracts therefore use the legal form of a rent contract which in Roman law was called locatio conductio (operarum, rei and irregularis) as a counterpart to emptio vendita. The locatio conductio socialis[15] provides a common legal ground for labour, tenants and finance lawyers[16] who have no reason to accept that the rise of the emptio vendita to a timeless spot contract[17] and to an asocial (do ut des) form[18] of understanding human relations for a sales society which has already been overcome should be the only form in which European private law should be formed to manage the challenges of the present credit and service society. Although this relation between contract law and social policy is obvious there seems to be little connection within the legal sciences and with regard to sociology and political science as well as welfare economists[19] who keep questions of Europeanisation of labour law[20] and social policy[21] separate. (mehr …)

Parliament Study explores the values underlying the DCFR (Hesselink, 2008)

August 13, 2009 By: Admin Category: DCFR

The values underlying the DCFR: what role for fairness and „social justice“? (EP, IMCO, Hesselink, Sept 2008)

This study provides an in-depth analysis of the provisions of the draft Common Frame of Reference (DCFR), in order to assess if the DCFR perceives contract law only as a tool for regulating private law relations between equally strong parties or if it contains elements of ’social justice‘ in favour of consumers, victims of discrimination, small and medium sized enterprises and other possibly weaker parties to contracts. After introducing the notion of social justice and its relationship to European contract law, this study explores the key social justice issues in the DCFR, their content and sources of inspiration. Finally, the last chapter draws some conclusions on the question if a balance has been struck among conflicting values and in particular between, on the one hand, individual private autonomy as expressed in the idea of freedom of contract, and on the other hand, principles of protection of weaker contracting parties responding to demands for social solidarity.

Click here to read ‘The values underlying the DCFR: what role for fairness and „social justice?’ (EP, IMCO, Hesselink, Sept 2008)

Visit a legitimate TV streaming website

August 12, 2009 By: Admin Category: DCFR

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Position of the European Commission on European Contract Law from 2001 (German version)

August 11, 2009 By: Admin Category: Contract Law, DCFR, Social Justice

It is strange that the previous link to contract law on the Consumers part of the Commision’s website is no longer working and the documents no longer available on the SANCO website. The document from 2001 is nevertheless reproduced here in German.

Stellungnahmen Zur Mitteilung Über Das Europäische Vertragsrecht (2001)

Nach der Veröffentlichung der Mitteilung zum europäischen Vertragsrecht haben der Rat und das Europäische Parlament im November 2001 zu der Mitteilung Stellung genommen. Ferner sind bei der Kommission _ bislang _ 160 Beiträge aus interessierten Kreisen eingegangen (siehe Anlagen). Dieses Interesse der Gemeinschaftsorgane und betroffener Kreise zeigt, wie wichtig die mit der Mitteilung ausgelöste Debatte ist.

Schlüsselt man die Beiträge nach Herkunftsländern auf, so ist bemerkenswert, dass die meisten Beiträge aus Deutschland und dem Vereinigten Königreich stammen. Aus einigen Mitgliedstaaten sind gar keine oder nur wenige Beiträge eingegangen. Zahlreiche internationale Interessengruppen haben sich ebenfalls an der Anhörung beteiligt. Die meisten Beiträge kommen aus Hochschul- und Wirtschaftskreisen, doch haben sich auch viele Vertreter der Rechtspraxis beteiligt. (mehr …)

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does football have a future

August 10, 2009 By: Admin Category: DCFR, Labour Law

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