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Abstract:
Short study for the European Parliament on the different options for a future instrument on a Common Frame of Reference (CFR) in EU contract law, in particular the legal form and the legal basis for any future optional instrument. The general conclusion is that, considering the relevant EC Treaty provisions and ECJ case law concerning legal bases, the description of an optional instrument by the European Commission in its Action Plan and its follow-up communications on European contract law, and the private law measures already in place, Article 308 EC seems to be the most likely provision to provide a legal base for enacting one or more optional instruments concerning European contract law. Art 95 EC seems to be excluded since an optional instrument would not be an instrument for the harmonisation of the laws of the Member States. From the perspective of a legal basis it would not make a difference whether the optional instruments would be applicable to B2B or B2C contracts or both, nor whether they would apply only to cross-border contracts or also to purely internal contracts. However, even Article 308 EC cannot serve as a legal basis for enacting the entire CFR; any optional instrument will have to be limited to rules on the subjects that are particularly relevant to the internal market.

european contract law, optional instrument, legal basis

Abstract:
In its "First Annual Progress Report on European Contract Law and the Acquis Review," the European Commission recently announced that, within the Common Frame of Reference process, it will prioritise the revision of the consumer acquis. This "reprioritisation" has a number of practical consequences. However, the more fundamental question is what the effect of a renewed focus on consumer protection will be on the character of European contract law, and on the way in which the Union addresses and views the people living in Europe. This question will become all the more important if the Commission is going to attempt, as it seems to envisage, some comprehensive and exclusive European legislation with regard to contracts with consumers (all or certain important ones, notably sales).

Obvious alternatives to the consumer protection approach to the Europeanisation of contract law include the perspectives of European citizenship and of justice. Does it matter whether European contract law is developed as a matter of consumer protection, citizenship or justice? Or, to put it differently, does it make a difference for a contracting party whether she is treated as a consumer, a citizen or a person?

This paper argues that it does. It presents the European policies with regard to consumer protection, European citizenship and the Area of justice, and discusses the kind of contract law that each of these approaches leads to and the kind of society they contribute towards. Both the citizenship and, in particular, the consumer protection approach are rejected as an exclusive approach to contract law because they are reductive. They fail to take into account important aspects of human life which would be included in an approach to contract law from the perspective of justice.

The conclusion is that European contract law should become a matter of justice. As a consequence, the European Union will need to provide a legal basis for treating contract law as a matter of civil justice. Moreover, the Union will have to articulate a common European conception of justice in contract law.

Contract law, European Union, consumer protection, citizenship, social justice

Abstract:
This paper examines whether the European Union should enact one or more sets of non-mandatory rules of contract law. In order to be able to answer this question, it examines several perspectives on non-mandatory rules and concludes that there is no decisive, merely "technical" answer; the question is political. The paper further shows that, in spite of the principle of freedom of contract, many "non-mandatory rules" are de facto mandatory. This leads to the conclusion that, in this respect, there is no categorical difference between mandatory rules and non-mandatory rules. The consequence is, on the one hand, that there is no reason to exclude non-mandatory rules as a category from unification efforts with regard to contract law, whereas, on the other, a political process is necessary with regard to non-mandatory rules which assures that the important political choices are made in a democratic way.

Default Rules, Mandatory Rules, Contract Law, European Law

Abstract:
If the role of the judge as a creator of rules is fully recognised, there is no need for a general good faith clause in a code or restatement of European private law. It may even do harm because it gives the courts an excuse for not formulating the rule which they apply. If, however, there is still some doubt as to the power of the courts, a good faith clause could be useful in order to assure that the judge may create new rules. This may be of particular importance for a new code for Europe where the European Court of Justice and the other courts may need extensive powers right from the beginning. It would then be logical not to put the article in the chapter on contract law, but right at the beginning as one of the first preliminary provisions of the code, just like in Switzerland. The wording would not matter much; experience shows that any phrase containing the words 'good faith' will suffice. However, if good faith were to have only such an Ermächtigungsfunktion, it could be argued that it would be more straightforward instead of using good faith terminology to provide expressly that the courts may interpret, supplement and correct the code where necessary. It may be argued that for the sake of tradition the term 'good faith' should be used. However, since this term may lead to hostile reactions from common law lawyers (however unjustified) 'equity' may be an acceptable compromise, since it is part of both the civil law and the common law traditions. It is submitted, however, that this term has the disadvantage of having a strong natural law connotation.

Secondly, this paper shows that the concept of good faith in itself should not keep common law and civil law lawyers divided. On the one hand, common law lawyers should not fear the concept of good faith. The adoption of a general good faith clause in itself does not say anything about which rules will speak through its mouth. Good faith does not differ much from what the English lawyers have experienced with equity. The real question is whether the rules adopted by the courts mentioning good faith should be included in a European code or restatement. It does not make any more sense for a common law lawyer to fight the concept of good faith than it would have been to fight the whole of equity. Rather, good faith serves as a guarantee against the rigidity that the English fear from a code. On the other hand, civil law lawyers should not insist too much on including a good faith provision in a code or restatement of European private law. If they fully recognise what the courts do when they 'apply' good faith they should acknowledge that it should not be necessary that a court mentions the words 'good faith' when it creates a new rule which supplements or corrects the law. Common law lawyers do not believe that the law should be exclusively made by the legislator, nor do they consider it necessary that all the law should be democratically legitimated. This may largely explain why English law has not needed the concept of good faith.

Finally, this paper makes become clear that it is not possible to say anything on the 'content' of European good faith without knowing the system that it will be operating in. Ideally it should be empty. All the rules mentioned in Section III, for example, if accepted, could (and indeed should) be given their proper place in a code or restatement of European private law.

Good faith, European contract law, European law, contract law, adjudication, general clauses

Abstract:
The Draft Common Frame of Reference is likely to become an authoritative source of law in a substantive sense. Even if it will not obtain any formal status (e.g. as an optional code) in the near future, it will probably become an important source of inspiration for the Europeanization of private law. This likely course of events is also desirable: a CFR-friendly interpretation of national and EC private law should be a key element of a European legal method for the developing multi-level system of European private law. Furthermore, the academic draft CFR provides a good basis for a final political CFR. In other words, the argument that the DCFR is of insufficient quality is not convincing. Nevertheless, the DCFR can and should certainly be improved. A European Law Institute and a WikiCFR would be good ways of including stakeholders in the process. However, that is not sufficient: what is urgently needed at this moment is real democratic input, with a focus not only on the scope but also on the content of the CFR. As to its substance, the CFR should be amended along three lines: social justice issues, back to contract, and co-ordination with the proposed EC directive on consumer rights.

CFR, European Private law, European Law, Contract Law, Democracy, Legal Method, Sources of Law, Soft Law

Abstract:
At present, the proposal for a Consumer Rights directive and the draft Common Frame of Reference are almost entirely disconnected. This is surprising in the light of the Commission's original plans. It is also unfortunate in the light of the CFR's potential for making European contract law more coherent.

The proposed directive fits very well into a scenario which could lead to a European Code of Consumer Rights in one or two decades. If, indeed, the proposed Consumer Rights directive is meant to provide the foundation for such a European Consumer Code the European Commission should make its intention clear today. Such transparency is in the interest of all stakeholders. The Council of the European Union and the European Parliament should also express their position on this issue.

The level of consumer protection in the proposed directive is significantly lower than that adopted in the DCFR. The European Parliament may therefore wish to decide to use the model rules contained in the DCFR as a basis for tabling amendments to the proposed Consumer Rights directive, as it was suggested by the Commission in its Action Plan.

consumer, contract, CFR, European private law, directive

Abstract:
So far, the concept of legal capacity is absent in the acquis communautaire on contract law. This article argues that a common frame of reference and an optional European code of contracts cannot do without rules on legal capacity. In the national contract laws of the Member States the main aim of the invalidity of contracts for incapacity has been the protection of persons against the consequences of a misjudgement of their own interests. This raises the question why the law should only protect persons who belong to a limited number of categories who are presumed not to be able to take proper care of their own interests. This article argues that under European contract law a person who has concluded a contract which is actually (extremely) unbalanced deserves equal protection. Such a fair price rule would contribute to substantive freedom of contract as it would facilitate access to the market. Finally, this article questions whether European contracts should be enforceable if they contribute to severely undermining the capabilities of other people (e.g., child workers in sweatshops) to choose the lives they have reason to value.

Abstract:
This is our concluding chapter for the forthcoming book Precontractual Liability in European Private Law. A number of lessons can be learnt from our comparative study. They are set out in these Conclusions. With regard to the difference between the common law and the civil law we emphasise that any general conclusions cannot be based on a limited and specific study like the present one. However, with regard to the cases under consideration in the present project it seems fair to say that we have detected a fundamental difference in approach between the countries which are usually considered to be part of the civil law tradition and those which are said to be part of the common law. Unlike English, Irish and Scots law all the other systems contain some general doctrine of precontractual liability, usually based on good faith. English, Irish and Scots law were the systems that most often offered no remedy and never were they the system that provided the most extensive liability. There was therefore both a doctrinal difference between the 'common law' systems and the 'civil law' systems and a corresponding difference in the outcome of cases. England, Scotland and Ireland not only rejected the general duty between negotiating parties to take each other's interests into account but even characterised the period of negotiations as being one in which the parties should generally have no such duty-and this was then translated into a significantly more limited range of liabilities between negotiating parties where the negotiations failed to result in a concluded contract. However, having said that we also saw, when it comes to the details of the remedies available and the facts which actually trigger the remedies, that both the differences between common law and civil law and the similarities within the civil law turned out to be much less important than they seemed to be at first sight. Nevertheless, it would go too far to conclude, with regard to the subject of precontractual liability, that the factual approach has uncovered underlying pervasive substantive unity (a 'common core') which was disguised by merely conceptual differences.

Pre-contractual liability, Negotiations, Contract, Tort, European private law, Legal origins

Abstract:
This article examines the relationship between European private law and scientific method. It argues that a European legal method is a good idea. Not primarily because it will make European private law scholarship look more scientific, but because a debate on the method of a normative science necessarily has to be a debate on its normative assumptions. In other words, a debate on a European legal method will have much in common with the much desired debate on social justice in European law. Moreover, it submits that, at least after the adoption of the Common Frame of Reference by the European institutions, European contract law can be regarded as a developing multi-level system that can be studied from the inside. Finally, it concludes that the Europeanisation of private law is gradually blurring the dividing line between the internal and external perspectives, with their respective appropriate methods, in two mutually reinforcing ways. First, in the developing multi-level system it is unclear where the external borders of the system lie, in particular the borders between Community law and national law. Second, because of the less formal legal culture the (formerly) external perspectives, such as the economic perspective, have easier access and play an increasing role as policy considerations.

Abstract:
This working paper examines the relationship between legal method and European private law. It reaches the following conclusions:

Legal scholars should not try, out of theory guilt, to imitate the natural sciences. If science is defined narrowly as empirical science then legal scholarship will, by definition, never be a science without completely changing its nature. There is no epistemic distinction between the kind of knowledge produced by the natural sciences and that by legal scholars, nor is their such a distinction between traditional legal scholarship (from the internal perspective) on the one hand, and the external perspectives on the law such as the economic analysis of law, on the other, or between the study of national and more international parts of the law like European law. Any existing differences relate, in particular, to the research questions and the different agreed methods and practices for answering these questions. Each of these questions and the conventional or unconventional way of answering it, is equally legitimate from an academic perspective - in this sense anything goes, albeit that from a social, cultural or economic point of view some questions are rightly considered to be more important than others.

A (debate on a) European legal method is a good idea. Not primarily because it will make European private law scholarship look more scientific, but because a debate on the method of a normative science necessarily has to be a debate on its normative assumptions. In other words, a debate on a European legal method will have much in common with the much desired debate on social justice in European law. There are at least two political dimensions to the idea of a European legal method. First, the question of who aims to exercise power over whom. Secondly, the question of what should be the underlying values on which this common European legal method should be based.

The Europeanization of private law is gradually blurring the dividing line between the internal and external perspectives, with their respective appropriate methods, in two mutually reinforcing ways. First, in the developing multi-level system it is unclear where the external borders of the system lie, in particular the borders between Community law and national law. Secondly, because of the less formal legal culture the (formerly) external perspectives have easier access and play an increasing role as policy considerations.

At least after the adoption of the Common Frame of Reference by the European institutions, European contract law can be regarded as one progressively developing multi-level system that can be studied from the inside. Any European legal method should fit the (hybrid) character of this dynamic multi-level system.

legal method, european private law, scientific method, legal theory

Abstract:
Europe is currently facing a shift from a rather formal, dogmatic and positivistic to a more substance-oriented and pragmatic approach to private law. It would probably be exaggerated to speak of a European revolt against formalism. However, it is undeniable that as a result of Europeanisation private law is undergoing a major transformation. Unlike a century ago, in Europe legal culture is undergoing a radical change (at least as far as private law is concerned). The instrumentalist and impressionist approach of directives, the pragmatic style of the ECJ, the subversive role of comparative law with its functional method, the external economic, cultural and political perspectives given by academics, the success of soft law which is based on substantive authority rather than on formal enactment, and the depositivation of legal education as a result of the implementation of the Bologna Declaration together contribute to a new European legal culture that is significantly less formal, dogmatic and positivistic than national legal cultures in Europe have been. The emergence of this new European legal culture is a result of these separate but related developments, and of the Europeanisation of private law in general.

The emerging new European private law and the new European legal culture are definitely less formalist than the classical method of national legal cultures in Europe. Actors in European private law seem to share a much more moderate belief in the powers of abstraction and of concepts. Moreover, they seem to be less concerned with system, and, on the whole, their approach to the law is less dogmatic and less deductive. Private law is regarded more as instrumental to political, economic, social, cultural and other aims, and there is a pervasive use of the functional approach. More generally, the approach to the law is pragmatic: there is more attention to the consequences of rules and legal decisions. There is less belief in right answers and in integrity (making law means making choices, law is politics) and in the necessity and rationality of a given legal system, which is more considered as contingent (e.g. depending on decisions made by politicians in Brussels) and therefore also uncertain. The (external) perspective is frequently more critical. Moreover, there is less positivism and more pluralism: we recognise the relative importance of our national positive laws. There is also less focus on texts; especially on codes, and more on other legal formants, legal institutions, legal actors (lawmakers, 'men of law') and their strategies, in other words on law in action. Finally, European law is not very respectful of traditional boundaries between disciplines (between public and private law, between law and social sciences); it is largely interdisciplinary.

European law, European pirvate law, legal culture, legal method, formalism, comparative law

Abstract:
This paper evaluates the draft Common Frame of Reference (DCFR) in terms of social justice. It concludes the DCFR has all the characteristics of a typical European compromise. Ideological and esthetical purists will certainly be disappointed. In this respect, it has much in common with the Constitutional Treaty. This is not necessarily something to be worried about. A common frame of reference is not made, in the first place (if at all), for esthetical or ideological reasons; it is meant to provide some normative guidance in the further development of European contract law.

Overall, from the point of view of social justice the DCFR is fairly balanced. There is certainly room for improvement. The laissez-faire concept of juridical acts should be removed. The list of underlying values, which may play an important role in the interpretation and further development of the CFR by the courts, must be made more balanced. The protection of consumers should be extended to SMEs at least in certain cases (notably unfair terms). The classical role of good faith as a basis for new judge-made obligations should be restored. However, the characterisations of the DCFR by some scholars as 'a law for big business and competent consumers' or, alternatively, as a 'massive reduction of private autonomy' are both exaggerations.

European Contract Law, Draft Common Frame of Reference, Social Justice

Abstract:
The draft Common Frame of Reference is likely to play a prominent role in the further development of European contract law. Therefore, with a view to its acceptability it is crucial to assess the draft from the point of view of social justice.

The DCFR has all the characteristics of a typical European compromise. Ideological and esthetical purists will certainly be disappointed. This is not necessarily something to be worried about. A common frame of reference is not drafted, in the first place (if at all), for esthetical or ideological reasons; it is meant to provide some normative guidance in the further development of European contract law. European citizens have very different interests, preferences and opinions in relation to almost all the subjects dealt with in the DCFR. A DCFR consistently based on only one conception about the right choices would inevitably have disappointed all European citizens with a different idea of social justice in European private law. Therefore, if we really want the further Europeanization of private law we will have to accept that it will probably look rather different from both the particular Member State law that each of us is familiar with and our personal ideas of social justice. The publication of the interim outline edition of the draft CFR, which is the result of a close collaboration between hundreds of legal scholars from all Member States, has brought that message home. The characterisations of the DCFR as 'a law for big business and competent consumers' or, alternatively, as a 'massive reduction of private autonomy' are both unfounded. Overall, from the point of view of social justice, the DCFR is fairly balanced. Nevertheless, there is certainly room for improvement.

Even if the DCFR is going to remain only a soft law instrument it is still likely to have a considerable influence on the further development of private law in Europe and will therefore also affect, directly or indirectly, the lives of all European citizens. For this reason it is crucial that European citizens will not only be the addressees of the CFR, or of the legislative measures based thereon, but can also rightly consider themselves as its authors. After the drafting by legal experts and the rather one-sided 'stakeholders'' input that were both organised by the European Commission it is now time for the citizens' voice. Only a meaningful input from the European and national Parliaments can provide the final CFR with the regulatory legitimacy that it needs.

The level of consumer protection in the DCFR is sufficiently high for it to be acceptable as the content of an optional instrument, which could be made applicable, for example, by clicking on a 'blue button'. However, as an absolute maximum beyond which the Member States would not be allowed to go in the case of full harmonisation, it is submitted, the level of protection in the DCFR is insufficient. Moreover, the DCFR draws a sharp distinction between B2C and B2B contracts. It categorically excludes from the protection that it grants to consumers all businesses, even the smallest ones that may be as vulnerable as consumers (or even more so) when it comes to a lack of information, inexperience and dependence. This sharp distinction deviates from the law in many Member States, is not required by the EC Treaty (which is relevant with a view to the CFR's role as a toolbox for revising the acquis and for drafting new acquis), and is potentially contrary to the fundamental principle of justice that any distinction between groups of people should favour the least privileged.

General private law - the bulk of the model rules contained in the DCFR - cannot be said to be 'neoliberal' as the Social Justice Group feared it would. Nor is it 'socialist' as some business stake holders warned for. It strikes a balance between autonomy and solidarity that is quite similar to the ones drawn in the modern private laws (including the case law, i.e. not merely the civil codes) of the Member States. However, where the DCFR deviates from the Principles of European Contract Law (PECL) it is always in the liberal direction.

Throughout the last Century general clauses, such as good faith, have played a prominent role in promoting social justice in private law in the Member States. In fact they became delegations of law-making power to the courts in order to allow them to find just and fair solutions in new cases. This tradition was codified in the PECL. However, in the DCFR the role of good faith is narrower and deliberately so. From the point of view of social justice it is important that in the final CFR the role of good faith as an undisputed legal basis for judge-made law should be restored.

The catalogue of underlying values and principles, that is meant to become the preamble to the final CFR and is likely to play a crucial role in the interpretation and further development of the CFR, brings back to the foreground some fundamental values that have played a prominent role in private law making in the Member States but that have been overshadowed, on the European level, by the narrow focus on market building. Having said that, the list of values in the DCFR could be framed so as to be more balanced. In particular, the privileged position of party autonomy as the only principle that is also contained in the black-letter model rules seems unjustified.

European contract law, CFR, social justice

Abstract:
This paper discusses the Principles of European Contract Law which were published by the Lando commission. It does so by addressing some of the choices the Lando commission made when drafting their Principles. In particular it examines choices with regard to the purpose of the PECL, the authors and their working method, the format and style, the subject matter, politics, culture, economics, and progress v. tradition. In assessing these choices it tries to provide a deconstruction of the PECL as a restatement of the common core of European contract law.

European contract law, European law, contract law, restatement, soft law, politics, deconstruction

Abstract:
The European Commission's Action Plan for a more Coherent European Contract Law was an important step towards a European Code of Contracts. However, it is doubtful whether such a Code would make European contract law more coherent and whether it would make the internal market function more smoothly, as the Commission expects. Nevertheless, there may be good reasons for such an (optional) code. Those reasons should play a more prominent role in the debate.

Abstract:
In 2003, the European Commission published its Action Plan on European contract law. That plan formed an important step towards a European Civil Code. In its Plan the Commission tried to depoliticise the codification process by asking a group of academic experts to prepare what it called a 'common frame of reference'. This paper, published in the European Law Journal in 2004, argued that drafting a European Civil Code involves making many choices which are essentially political. It further argued that the technocratic approach which the Commission had adopted in the Action Plan effectively excluded most stakeholders from having their say during the stage when the real choices were made. Therefore, before the drafting of the CFR/ECC starts, the Commission should have submitted a list of policy questions regarding the main issues of European private law to the European Parliament and the other stakeholders. Such an alternative procedure would have repoliticised the process. It would have increased the democratic basis for a European Civil Code and thus its legitimacy.

European Contract Law, Civil Code, Politics

Abstract:
Last year the European Commission published its "Action Plan" on European contract law. That plan forms an important step towards a European Civil Code. In its Plan, the Commission tries to depoliticise the codification process by asking a group of academic experts to prepare what it calls a 'common frame of reference'. This paper argues that drafting a European Civil Code involves making many choices that are essentially political. It further argues that the technocratic approach which the Commission has adopted in the Action Plan effectively excludes most stakeholders from having their say during the stage when the real choices are made. Therefore, before the drafting of the CFR/ECC starts, the Commission should submit a list of policy questions regarding the main issues of European private law to the European Parliament and the other stakeholders. Such an alternative procedure would repoliticise the process. It would increase the democratic basis for a European Civil Code and thus its legitimacy.

Abstract:
This paper argues that in the absence of social rights that are sufficiently enforceable in horizontal relationships - i.e. between private parties - the whole 20th Century battle for the socialisation of contract law (good faith duties, workers', tenants' and consumer protection) would risk to start all over again, but now on a higher - i.e. the constitutional - level.

European contract law, European law, fundamental rights, social rights, horizontal effect

Abstract:
The aim of this paper is to identify what the position of SMEs should be in a draft Common Frame of Reference on EU contract law and in the review of the EU consumer acquis. In particular, this paper answers the following questions: How can the position of SMEs be defined in relation to the distinction between B2B and B2C contracts? Should consumer protection in the revised acquis and in the CFR be extended to SMEs? How can the European Union further facilitate cross-border transactions (B2B and B2C) by SMEs? Finally, it addresses the importance of normative coherence (treating like cases alike).

sme, contract law, european union, common frame of reference, consumer protection

Abstract:
This is our Introduction to the forthcoming book Precontractual Liability in European Private Law. In the Introduction we explain the aim and method of our project. In particular, we defend the common core method against its critics as a legitimate method for conducting comparative legal research.

Comparative Law, Method, Functionalism, Common core, Pre-contractual liability, Contract, European private law

Abstract:
It has been suggested recently by several scholars that the ideas of Friedrich von Hayek should play a prominent role in shaping the future of European private law. This paper examines what we can learn from Hayek for the further development of European contract law.

Hayek rightly underlines that law is a contingent phenomenon, historically grown in response to needs of a specific society. This means that we should be suspicious of universalism and strong functionalism (related to strong pragmatism). Whatever the future of European contract law should look like, it would be wrong to think that we could start designing it with a clean slate. Therefore, the drafters of the CFR have been rightly inspired by the existing national, European and international traditions. One of the most fundamental insights from Hayek's work (already centrally present in The Road to Serfdom) is that of our incurable ignorance and its implications for the limits of central planning. This insight certainly also affects private law although not necessarily in the ways suggested by some of his contemporary followers. Also, Hayek's warnings against nationalism are still most relevant today. Finally, he rightly reminds us that we should not be unduly impressed by the scientism of the economic analysis of law that is based on the illusion that welfare consequences for individuals of legal rules, including those of the consumer acquis or the CFR, can be measured and compared.

What we should certainly reject, however, is Hayek's totalitarianism. His all or nothing approach has no empirical basis; it is completely detached from reality. The implication is dramatic. If the only argument for a spontaneous order is that it will save us from totalitarianism then there is little reason to adopt Hayek's spontaneous order. A mixed economy of the kind that we are familiar with in Europe is much more attractive. However, as Posner has pointed out, on the crucial question of what would be the right mix Hayek had hardly anything to say, and he also uttered precious little on the kind of contract law (how much freedom?) such an economy would need. Therefore, a democratically designed contract law drawn up by a legislator inspired by the private laws in Europe as they have grown organically, but making its own choices on the issues that it deems socially most important, seems to be a much better way forward for Europe than a spontaneous order.

Spontaneous order, European law, contract, private law theory, European private law, economic analysis

Abstract:
The proposed directive fits very well with a sharp distinction between b2c and b2b contracts and comprises several features that - especially as a combination - provide an optimal basis for a future European consumer (contract) code. The same characteristics that make the directive a good preliminary step toward a European consumer law code progressively complicate implementation of consumer contract law in the Civil Code by the national legislator. Still, nothing in the directive renders further distinction between b2c and b2b compulsory. National legislators may extend the scope to other parties (e.g. sole traders and small businesses), when it is of the opinion that they merit the same protection, and even to all parties, by including the directive in general private law. Nor is the European legislator bound to further deepen the distinction between b2c and b2b at the European level: EC Treaty Article 95, the intended legal basis of the directive, does not demand such a measure.

Both the directive and its implementation are thus matters of political choice. This raises the question as to whether a rigid, categorical distinction between rules governing b2c and those governing b2b contracts is desirable. No substantive ground justifies such a categorical distinction. Non-consumers, especially small businesses, often encounter situations identical to those usually invoked to justify consumer protection. In such cases the equality principle requires that the legislator extend the protection prescribed for consumers to include this group. The European legislator is unlikely to elect this option. The Commission, the Council and the Parliament have already expressed support (without substantiating this position) for distinguishing between b2c and b2b contracts. On the other hand, certain Member States probably still favour preserving the unity of private law, their layered system with various levels of abstraction and the associated lex specialis idea.

In this respect greater transparency may be expected from the European Commission. How does the Commission view the future: does a European Code of Consumer Law lie ahead? The Council of the European Union and the European Parliament should ask the Commission for guidance here and should adopt a clear position themselves. This is important for two reasons. The first is that prior to transposition of this directive, Member States should know what to expect. The second is that if a European Code of Consumer Law ever materializes, it will need to be the outcome of a deliberate decision to this effect.

European law, consumer law, commercial law, contract law, review, acquis, harmonization, full harmonization, minimum harmonization, exhaustive harmonization, transposition, b2b, b2c, sme, small businesses, social justice

Abstract:
In response to the growing incoherence of European contract law, the European Commission is planning to adopt a 'common frame of reference' (CFR) in 2009. That CFR will effectively constitute a codification in a substantive sense. As a result, in codified systems such as The Netherlands, there will be a shift from the familiar tension between impressionistic harmonisation and systematic codification to a new tension between the system of the national civil code and the system of the substantive European code. Therefore, once the CFR is adopted by the Commission as a tool for revising the acquis and for drafting new directives, national legislators inspired by the codification ideal will have to reconsider their strategies towards the implementation of directives in the area of private law. Three such strategies are considered here: resistance, segregation and surrender. Each of them has advantages, but also disadvantages. None of them solve the tension between national codification and Europeanisation. It seems unlikely that private law will ever (again) be contained exclusively in one comprehensive code, either on the national or on the European level. The CFR will make a comprehensive national codification increasingly difficult to achieve, whereas a comprehensive European Civil Code that replaces national private law both lacks a legal basis and political support. Therefore, we will have to live with a two- (or multi-) level system of private law. As a result, the Dutch and other national legislators will have to revise their codification ideals.

European Law, Directives, Coherence, Codification, Contract Law

Abstract:
This report analyses the academic DCFR in the light of freedoms, rights and social justice. It first investigates whether the DCFR takes the autonomy of equally strong parties as its starting point or rather incorporates elements of ‘social justice’. The evaluation takes place on the basis of five key elements of social justice, i.e. legitimacy, the protection of weaker parties, the ideology underlying rules of private law, the role of general clauses, and the principles and values underlying the DCFR. Subsequently, the report addresses the question to what extent the DCFR takes into account the European free movements (of goods, services, persons and capital) and what its relation is with European competition law. Finally, it looks into the potential impact of fundamental rights, laid down in national Constitutions and international treaties, on the application of the DCFR. The overall aim is to determine whether the future CFR, if it followed the present academic draft, would on principle comply with current European constitutional standards.

Draft Common Frame of Reference, European private law, social justice, EC freedoms, fundamental rights

Abstract:
The paper analyses the stakes that the various players have in the Europeanisation of contract law.

European contract law, European law, contract law, politics

Abstract:
This study provides an in-depth and detailed comparison between the CFR and the proposed Consumer Rights Directive. Furthermore, it identifies those provisions of the CFR which could be used when amending the Proposal for a Consumer Rights Directive in the framework of the legislative procedure. In this regard, it suggests some amendments based on the CFR. A correlation table between the provisions of the CFR and the provisions of the proposed Consumer Rights Directive is provided in the annex of the study.

European contract law, European private law, Common Frame of Reference, Consumer Rights Directive, CFR, DCFR

Abstract:
In response to the growing incoherence of European contract law, the Commission is planning to adopt a 'common frame of reference' (CFR) in 2009. That CFR will effectively constitute a codification in a substantive sense. As a result, in codified systems such as The Netherlands, there will be a shift from the familiar tension between impressionistic harmonisation and systematic codification to a new tension between the system of the national civil code and the system of the substantive European code. Therefore, once the CFR is adopted by the Commission as a tool for revising the acquis and for drafting new directives, national legislators inspired by the codification ideal will have to reconsider their strategies towards the implementation of directives in the area of private law. Three such strategies are considered here: resistance, segregation and surrender. Each of them has advantages, but also disadvantages. None of them solve the tension between national codification and Europeanisation. It seems unlikely that private law will ever (again) be contained exclusively in one comprehensive code, either on the national or on the European level. The CFR will make a comprehensive national codification increasingly difficult to achieve, whereas a comprehensive European Civil Code that replaces national private law both lacks a legal basis and political support. Therefore, we will have to live with a two- (or multi-) level system of private law. As a result, the Dutch and other national legislators will have to revise their codification ideals.

Abstract:
This editorial, published in 2005, criticizes the stakeholders' network set up by the European Commission. It argues that all European citizens have a stake in European contract law and that, therefore, the Common Frame Reference process is in urgent need of a more democratic process.

European private law, contract, democracy, stakeholders, legitimacy, CFR

Abstract:
The Study Group on Social Justice in European Private Law are: Gert Bruggemeier (Bremen), Mauro Bussani (Trieste), Hugh Collins (London), Aurelia Colombi Ciacchi (Bremen), Giovanni Comande (Pisa), Muriel Fabre-Magnan (Nantes), Stefan Grundmann (Berlin), Martijn Hesselink (Amsterdam) (Chairman), Christian Joerges (Florence), Brigitta Lurger (Graz), Ugo Mattei (Torino), Marisa Meli (Catania), Jacobien Rutgers (Amsterdam), Christoph Schmidt (Florence), Jane Smith (Bremen), Ruth Sefton-Green (Paris), Horatia Muir Watt (Paris), Thomas Wilhelmsson (Helsinki).