Policy Options for Progress Towards a European Contract Law: Comments on the issues raised in the Green Paper from the Commission of 1 July 2010, COM (2010) 348 final
Rabel Journal of Comparative and International Private Law (RabelsZ), Vol. 75, No. 2, pp. 371-438, April 2011
69 Pages Posted: 1 Feb 2011 Last revised: 3 Mar 2013
Date Written: January 27, 2011
In its position paper on the Commission’s Green Paper on policy options for a European contract law (COM (2010) 348 final, 1 July 2010), the Max Planck Working Group welcomes initiatives to overcome the fragmentary and inconsistent state of contract law in Europe. However, the Working Group criticizes that the Commission did not sufficiently consider the issue of the legislative competence of the EU. At present, an optional instrument (opt-in) drafted as a Regulation (option 4) and based on Art. 352 TFEU seems to be the preferable option. Such an instrument raises a number of questions regarding its choice and its area of application which have been addressed by the Working Group. An optional instrument should be granted a broad scope of application, including both B2B and B2C contracts, domestic contracts, intra-Union cross-border contracts as well as contracts with parties resident in third states. Its scope should neither be limited to cross-border contracts nor to contracts concluded online. However, the recommendation of the Institute is subject to an evaluation of the substantive quality of the instrument which is not yet available. In this regard, an important preparatory work for any future European contract law, i.e. the Draft Common Frame of Reference (DCFR), has already been criticized by some members of the Working Group. Also, any legislative initiative should be preceded by a proper review of the existing acquis and should be coordinated with the current work on a Consumer Rights Directive.
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Keywords: Optional Instrument, Optional Regime, Common Frame of Reference, DCFR, European Contract Law, Policy Options, Toolbox, Blue Button, Harmonization & Contract Law, Internal Market, EU Competences in Private Law, Choice of Law, Rome I Regulation
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