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IP/10/595  Date:  21/05/2010

European Commission convenes legal expert group to seek solutions on contract law

The European Commission, seeking to boost cross-border trade and to ensure strong rights for consumers, convened a new expert group to propose ways to improve contract law in the European Union. The group of 18 contract law experts, lawyers and consumer representatives met for the first time today in Brussels. The Commission will launch a public consultation on the most appropriate way forward to improve coherence in contract law in the summer. A possible solution could be an optional European contract law (or „28th system“). For example, an Irish retailer dealing with a French supplier, who is unfamiliar with French law, could opt for European law for the contract. In addition, a Polish consumer shopping on the Internet could push a „blue button“ on the website and choose the European contract law instrument, which would guarantee a high level of consumer protection. (mehr …)

The Economic and Social Committee has presented a proposal that would establish the DCFR as the dominant civil code in Europe. The European Commission after presenting a Roadmap has now established 20 experts (Official Journal for 27 April 2010 (OJ L105, 27.4.2010, 109-111) which within the next two years (until 26 April 2012) are supposed to present a Common Frame of Reference for a European Contract Law.

Article 2: Task
The group’s task shall be to assist the Commission in the preparation  of a proposal for a Common Frame of Reference in the area of European contract law, including consumer and business contract law, and in particular in:

• (a) selecting those parts of the Draft Common Frame of Reference which are of direct or indirect relevance to contract law; and
• (b) restructuring, revising and supplementing the selected contents of the Draft Common Frame of Reference, taking also into consideration other research work conducted in this area as well as the Union acquis.

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].

LeFriant Kollektivautonomie EuZA

Book Review Lotmar, Verbraucher und Recht H. 11 2009-2

Nogler Reifner Lifteime Contracts – Rediscovering the Social Dimension of Contracts Jubilee Wilhelmsson

Regulation and self regulation in the fight against over-indebtedness in the Netherlands. A socio-legal and economic anlysis.

Draft, Do not quote

Paper for the Conference in Chemnitz, March 26 –28 2009 on Overindebtedness: Everyday Risk in Modern Societies? Theoretical Aspects and Empirical Findings in International perspective (download)

Plus addendum for EUCOSO Trento, 25 –26 September 2009

Plan for future research in the light of the credit crisis

Nick Huls & Nadja Jungmann, Erasmus University Rotterdam

Comments are welcome, please mail them to

huls@frg.eur.nl

1. Introduction

In this paper we pick up the thread from two earlier joint publications. In 2003 we discussed the creation of the WSNP (Debt Rescheduling (Natural Persons) Act) and the legal evaluation by the WODC (Research and Documentation Centre)

in 2001. In our 2009 publication we discussed the most important findings from Nadja Jungmann’s dissertation: the significant decline in the success rate of the voluntary trajectory, the insufficient policy theory of the legislator, and the strategic behaviour of municipalities (withdrawal), creditors (saying ’no‘ to the voluntary trajectory is cheaper) and assistance workers (bureaucratisation of implementation). In this third paper we discuss the way in which the debt problems and credit lending are addressed and/or managed in the Netherlands by a combination of government and self regulation. (mehr …)

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 …)

Vers un principe de défaveur ?

Quand le droit européen affronte la tradition des droits nationaux[1]

Emmanuel Dockès

Sous des noms divers, une idée assez simple semble toujours actuelle au sein du droit du travail de nombreux droits des Etats membres de l’Union européenne. En droit français, on parle de principe de faveur, en droit allemand de Günstigkeitsprinzip, en Italie de derogabilità in melius, … Une étude comparatiste plus poussée serait nécessaire por mieux montrer la force, mais aussi les limites de cette idée commune. D’autant que cette idée semble désormais menacée en droit européen. (mehr …)