Naar Een Optioneel Instrument (Towards an Optional Instrument?) (in Dutch)
HET GROENBOEK EUROPEES CONTRACTENRECHT: NAAR EEN OPTIONEEL INSTRUMENT?, M.W. Hesselink, A.A.H. van Hoek, M.B.M. Loos & A.F. Salomons, eds., pp. 157-176, Den Haag: Boom Juridische Uitgevers, 2011
22 Pages Posted: 12 Jul 2011
Date Written: February 1, 2011
In this paper, it is argued that even though the legal basis of an Optional Instrument (OI) seems fragile as it does not lead to harmonisation but to the introduction of a new regime next to the national legal systems. This seems to imply that the legal basis should not be Art. 115 TFEU, but rather art. 352 TFEU. Such an instrument could then only be based on unanimity within the Council and with approval by the European Parliament. This is not to say that the OI will not constitute a useful addition to the Vienna Sales Convention and the Consumer Sales Directive, as – different from these instruments – it also unifies large aspects of general contract law. It is argued, however, that the OI would be much more useful if it would (also) deal with service contracts, where the lack of uniform rules is much more poignant.
It is further argued that a choice for a broad personal scope (B2B- and B2C-contracts) is to be preferred, in particular also to prevent the small and medium-sized businesses from being forced to continue to be aware of at least two legal regimes – the law applicable to the contract with its supplier and the law applicable to the contract with its consumer-customer. This would require, however, that the level of consumer protection be at least at par with that of the future Consumer Rights Directive. A case is also made for allowing parties to opt for the OI also in purely domestic cases. Specific attention is required for the position of minors. At present, national laws differ fundamentally with regard to the conditions for legal capacity. This hinders crossborder trade in products, which are particularly attractive for minors, in particular digital content (i.e. digital goods and services). Finally, it is argued that a uniform interpretation of the provisions of the OI by a common European court must be safeguarded. It is argued that this requires changes of the way the European court system deals with private law cases. Several suggestions are made indicating how this could be arranged.
Note: Downloadable document is in Dutch.
Keywords: European Contract Law, Optional Instrument, B2B- and B2C-contracts, Consumer Rights Directive
JEL Classification: K12
Suggested Citation: Suggested Citation