EuSoCo

Place: Universita Degli Studi Di Trento

Date: 28/29 September 2012

Participation: Luca Nogler (Universita Degli Studi Di Trento); Udo Reifner (Universita Degli Studi Di Trento);  Frey Nybergh (University of Helsinki); Andrea Nicolussi  (Universita Cattolica del Sacro Cuore Milano); Luisa Antoniolli (Universita Degli Studi Di Trento); Toni Williams (University of Kent);  Orsola Razzolini (Universita Bocconi); Geraint Howells (University of Manchester); Juana Pulgar (Universidad Complutense de Madrid); Christoph Schmid (ZERP Bremen);  Elena Bargelli (University of Pisa); Candida Leone (University of Amsterdam); Helena Klinger (Universität Hamburg)

Project partners unable to attend: Maurice Tancelin (in the past Université Laval); Riccardo Salomone, Fabio Pantano (Universita di Parma); Florian Rödl (Goethe-Universität Frankfurt); Ruben Houweling/L.J.M. Langedijk (Amsterdam); Eva Kocher (Universität Viadrina, Frankfurt O.); Elena F. Perez-Carrilló (Universidad Santiago de Compostella; Vincent Forray (Université McGill, Montréal/Québec)

Objectives of the meeting

Goal of the last EuSoCo-meeting was to present the current state of our book project by means of the contributions. The lectures should summarize the contributions and build the material for a fruitful discussion. On the basis of exchanged views, received comments and critical hints from the audience the reflection should be developed with regard to the contributions as well as to the principles of long-term contracts. The result of our last final meeting was to know where we stand on the issues of this project: what are our main shared ideas and demands with regard to a new European contract law and who will support these concepts of our project by a contribution.

http://www.law.uchicago.edu/events/europeancontractlaw

Conference on ‚European contract law: a law-and-economics perspective‚ in Chicago considered a wide range of views on the development of European contract law, focusing on the European Commission’s proposal for a Regulation on a Common European Sales Law (CESL).

While the proposed CESL met some heavy criticism from speakers from both sides of the Atlantic, suggestions for improvement and for the further development of European contract law took diverging directions. In general, and perhaps not surprising in light of the economic angle of the conference, it appeared that the US speakers were rather sceptical about further-going regulation of consumer transactions in the EU’s internal market. The European speakers, on the other hand, mostly sought to combine their criticism with suggestions for the elaboration of measures of EU contract law within the existing acquis communautaire. The different approaches generated a lively debate on general issues (harmonisation, regulatory competition, mandatory rules, optional instruments) as well as specific topics (consumer protection techniques, the doctrine of mistake, remedies, custom, precontractual liability, Eurobarometer surveys).

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Common European Sales Law – BEUC’s preliminary Position on the Commission’s proposal for a regulation on a (COM(2011) 635 final)

See website http://www.beuc.org/Content/Default.asp?PageID=1121

26/03/2012

Implementation of Optional Instruments within European Civil Law

In a few weeks‘ time, the European Law Academy will be hosting a 2 day conference discussing the ESL. Entitles: AN OPTIONAL EUROPEAN SALES LAW – THE COMMISSION PROPOSAL AND ITS PERSPECTIVES. Taking place in Trier, 9-10 February 2012; ERA Conference Centre; Metzer Allee 4, Trier, Germany.

The ERA Programme ESL Feb 2012 is available here.
On the Friday, EuSoCo Group partner Bob Schmitz will be speaker on one of the panels, we hope he will make allusions to our efforts and forthcoming publication. Following him will be BEUC representative Ursula Pachl with her critique of the ESL.
V.     CONSUMER AND COMMERCIAL CONTRACTS

09:00     Comparing B2C and B2B contracts (Which rules are different? Why?

Dora Szentpaly-Kleis and Ursula Pachl

VI.     PANEL DISCUSSION
11:00     B2C: Added value for consumers or cost driver for enterprises?

Hanne Melin and Bob Schmitz

EuSoCo partner Geraint Howells has co authored a study for BEUC. This study and the 10 reservations from BEUC can be found on the BEUC website or from the links below

See: BEUC Study: „Optional Soft Law Instrument on ECL“ (Howells, Micklitz, Reich, Nov 2011)

See BEUC’s  European contract law: 28th regime – BEUC’s 10 reservations (Nov 2011)

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14 Dec. 2011: Justice ministers meeting in Brussels discussed the proposed Common European Sales Law.

Proposals for a common sales law to encourage cross-border trade appear to have been dismissed by EU justice and home affairs ministers meeting in Brussels on 14 December amid concerns that they will heap more bureaucratic costs on small businesses. The proposals were set for discussion rather than agreement.

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BEUC and UEAPME letter ahead of their JUSTICE AND HOME AFFAIRS COUNCIL MEETING, 28 OCTOBER 2011 (here).

In an article for the Guardian, Alex Aldridge comments on how a European single contract law could erode English hegemony with the UK legal profession viewing it as a threat to its dominance (with Ken Clarke describing the proposal as an „Esperanto fallacy„) and that the real fear is not over b2c contracts but business-to-business contracts where the English law (and New York law) is currently the dominant jurisdiction for international transactions. European justice commissioner Viviane Reding is quoted as saying „A widespread European contract law would be an important advantage in the global competition between the civil and common law systems, particularly in view of a growing Asian market.“ The article says that „still, a European contract law would have a long way to go before it toppled. But it could be helped to become a serious global player if, in the future, it were to be made compulsory across the EU (rather than optional as is the case under the current proposal), or extended beyond sale of goods contracts. The possibility of creeping influence worries Law Society president John Wotton. „If the new law is established, there would likely be pressure to expand it to other areas like financial services and insurance,“ he says.“

A copy of the minutes of the May 3 2011 hearing (here), shows that the Commisioner’s quoted statistics were questionable (the price for a company wanting to sell products through all 27 EU Member States reaches 150,000 euro just for legal fees to ascertain the applicable law) and that statements indicated that the small businesses in question simply do not view a forced choice of foreign law as an issue (see research such as Gilles Cuniberti, Is the CISG Benefitting Anybody? 39 Vand. J. Transnat’l L. 1511, (Nov.) 2006) (available at SSRN: http://ssrn.com/abstract=1045121 that suggests that in fact choice of law is not an issue which is dealt with by the majority of businesses engaged in cross-border transactions)

Below some recent papers of potential interest:

Hesselink, Martijn W., How to Opt into the Common European Sales Law? Brief Comments on the Commission’s Proposal for a Regulation (October 26, 2011). Amsterdam Law School Research Paper No. 2011-43; Centre for the Study of European Contract Law Working Paper Series No. 2011-15. Available at SSRN: http://ssrn.com/abstract=1950107

Hesselink, Martijn W., The General Principles of Civil Law: Their Nature, Roles and Legitimacy (September 22, 2011). Amsterdam Law School Research Paper No. 2011-35; Centre for the Study of European Contract Law Working Paper Series No. 2011-14; THE INVOLVEMENT OF EU LAW IN PRIVATE LAW RELATIONSHIPS, Dorota Leczykiewicz & Stephen Weatheril, eds., Hart Publishing, Oxford, 2012; Post-National Rulemaking Working paper No. 2011-03. Available at SSRN: http://ssrn.com/abstract=1932146

Rosenberg, Anat, Classical Contract Law, Past and Present (September 15, 2011). Available at SSRN: http://ssrn.com/abstract=1927785

Purnhagen, Kai Peter, The Architecture of Post-National European Contract Law from a Phenomenological Perspective – A Question of Institutions (September 5, 2011). Amsterdam Law School Research Paper No. 2011-25; Centre for the Study of European Contract Law Working Paper Series No. 2011-11; Post-National Rulemaking Working Paper Series No. 2011-01. Available at SSRN: http://ssrn.com/abstract=1926163

The directive on consumer rights has been finally approved by the EP and has to be enacted by the end of 2013, and the Commission has formally adopted a proposal for an optional instrument on the basis of the expert group document. Even market logic cannot help explain the economic rationale for such a sales law… In fact, even the European Association of Craft, Small and Medium-Sized Enterprises have not welcomed the optional law. They have said that the „proposals will do very little in this respect and will actually leave small businesses worse off, if confirmed in their current form. SMEs face diverse issues such as language barriers and tax systems when trading cross-border, while the attitude of consumers in relation to buying from another member state does not depend on legal diversity. The need to adapt and comply with different consumer protection rules in the foreign contract laws was cited as having a ‚large impact‘ on cross-border trade only by 7 per cent of the respondents to the Eurobarometer. Therefore, pretending that the common sales law is a priority and that it will change the status quo is preposterous“.

Below is a further quote from an article by Paul Abbiati „Is a common sales law for Europe possible?“ Read the rest of this entry →