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Archive for September, 2009

Trento Meeting: Powerpoint presentation on the Blog and FP7

September 27, 2009 By: Admin Category: 1.3 General & discussions, 2009 Trento

Click here to see Trento Meeting slides on Blog and FP7

Reifner, Agenda for Trento Meeting and material to help discussion “Social Contracts in Europe”

September 22, 2009 By: Admin Category: 2009 Trento, 3. Meetings

Here is the link to the document prepared by Udo Reifner: Trento Meeting Sept 2009 (Reifner slides)

Below is the suggested preliminary schedule for the Meeting (comments, amendments welcome).

Suggested Programme: EuSoCo Meeting – Trento September 25, 2009

9.00 Welcome

-Agenda, Protocol, Technical

9.15-10.00 Purpose and Goals

-brainstorming (DCFR, language, publication, proposal, politics, participants)

10.15-11.00 Social Contracts

-What is it? Intro + Discussion

11.15-12.00 Issues for Research

-horizontal or vertical approach, theory and application,

12.00-13.00 Lunch Break

13.00-14.00 Research Grants

-Where and How? Website, Communication, Meetings (Sebastien), support?

14.00-15.30 Work in Groups

-European Contract Law Antoniolli/Nyberg/Perez/Nicolussi

-Labour Law Dockes/Kocher/Nogler/Pilgersdorfer

-Consumer Credit LawHuls/Howells/Reifner

15.45-17.00 Reports and Gen. Discussion

17.15-18.15 Workplan

-Who? When? What? (March 2010 first pub. BOD?, Research Proposal, Coord., next meeting)

Huls, Self-Regulation and Over-Indebtedness (Draft)

September 21, 2009 By: udo.reifner Category: 2009 Trento, Credit Law

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Draft, Do not quote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. (more…)

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. (more…)

Reifner/Nogler Paper for the EuSoCo Trento Meeting

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

Lifetime Contracts and the Draft Common Frame of Reference

– A preliminary draft agenda for the Trento Meeting of the EuSoCo Project (July 10, 2009)

(For personal use only – no language check applied)

Udo Reifner/Luca Nogler

Preface:

The following points are made in order to structure and prepare the discussion at the Trento seminar on September 25, 2009. We use the notion lifetime contracts as a working definition for social longterm contracts like labour, tenancy and consumer credit contracts. We are aware of the fact that other socially meaningful longterm contracts do exist in the area of goods of first necessity, associations, company law but we assume that the idea of a life time contract based on the legal idea of renting (location conduction) has nowhere emerged so clearly as in these three areas. The points made here are very preliminary and incentives for work and partition of labour. We would like to get as much material and hints as to the national and international discussions in this area as possible in order to be able to design a research project who after the Trento meeting has to be proposed in the FP 7 programme of DG research. iff will overtake the technical part. For this we also need ideas of the participants what resources they would like to have from the project, who else should get involved. The project will be conducted in three languages: German, French and English. Papers can also be presented in the mother tongue of the author if a summary or explanation in one of these languages is available. In our discussions we will provide short translations but make no restriction to the use of either of these languages. (more…)

Dockes Vers un principe de défaveur?

September 21, 2009 By: udo.reifner Category: 2009 Trento, Labour Law

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. (more…)