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)

—-

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.

Read the rest of this entry →

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 →

There is a new partially functional website on the Common Frame of Reference for European Contract Law - and its Interaction with English and German Law: http://cfr.iuscomp.org/ . It is run by Gerhard Dannemann, colleague from Prof. Grundmann and Director, Centre for British Studies Humboldt-Universität:. A database on CFR materials is available there: http://cfr.iuscomp.org/db/

Secola: also have an EC Contract Law Database: http://www.secola.de/statutes.htm

Date:  11/10/2011: European Commission proposes an optional Common European Sales Law to boost trade and expand consumer choice (EN). An optional Common European Sales Law: Frequently asked questions (EN). The EU Consumer Rights Directive has been adopted but this will have no effect on financial services and labour law and tenancy law.

Wednesday 12 October (date to be confirmed): European Commission proposes European Contract law to boost trade and expand consumer choice

The European Commission will present proposals to bring more coherence to contract laws in the EU. Despite the success of the EU’s Single Market, barriers to cross-border trade remain. Many of these result from divergent sales laws between the 27 Member States. They make selling abroad complicated and costly, especially for small firms. Traders who are dissuaded from cross-border transactions due to contract law obstacles forgo at least €26 billion in intra-EU trade every year. Meanwhile, 500 million consumers in Europe lose out on greater choice and lower prices because fewer firms compete, particularly in smaller national markets. The Commission’s proposals will aim to break down these barriers.

The background:

Under the Europe 2020 strategy (IP/10/225), the Commission is tackling bottlenecks in the Single Market to drive economic recovery. This includes making progress towards a European contract law.

In July 2010, the Commission put forward several options in a Green Paper for a more coherent approach to contract law.

The event:

The Commission will present its proposals and publish two new Eurobarometer surveys. Vice-President Reding will hold a press conference and a technical briefing will also be held (to be confirmed).

The sources:

Contract law in the EU: http://ec.europa.eu/justice/contract/index_en.htm

Vice-President Reding’s website:  http://ec.europa.eu/commission_2010-2014/reding

The European Parliament backs the optional EU Contract law for b2c proposed by the EU’s Justice Commissioner (and European Commission Vice-President) Viviane Reding. Are all stakeholders and specialists from the legal traditions aware of the potential implications of such an optional law on the level of consumer protection for EU citizens? There needs to be more consultation, research and investigation on what bringing more coherence to contract law in Europe will mean for consumers. The press release stresses only “transaction costs (like adapting contractual terms and commercial policies or obtaining translation of the rules) and legal uncertainty”, but there is no mention of any impact assessment on potential outcomes for consumers when these decide to give up their national protection provisions in favour of the more business-friendly Law. Groups of academics and legal professionals, such as the EuSoCo Group want to look at the possibilities for this Optional Law to take account of more than just the transactional aspects of contracts.  Read press release below: Read the rest of this entry →

BEUC Press release 6 June 2011

EU Contract law - MEPs on the wrong track

The European Parliament votes this week Wednesday 8 on a report by MEP Diana Wallis (UK) supporting the European Commission’s proposal for a European contract law system.
The future European ‘Optional Instrument’ or ‘28th Regime’1, aims to establish a separate European system for contract law, as distinct from national law, which would govern day to day consumer contracts. Major concerns are held not only by consumer organisations, but by many stakeholders ranging from SMEs, major business representatives, to national law societies.
Fundamental flaws in the concept of an Optional Instrument for b2c contracts2 include the following:

• The Commission’s own EU-wide statistics found 79% of traders say the same legal rules across the EU would make little or no difference to boosting their cross border trade.
• ‘Optional’ is not at all accurate: the business decides whether to use it or not, thereby deciding on the level of protection that the consumer would benefit from and putting the consumer in a ‘take it or leave it’ situation.
• This instrument would create more complexity and daily confusion instead of more confidence and legal certainty not only for consumers but also for SMEs. It is unrealistic for consumers to make an informed choice between two legal systems (national and EU).

Monique Goyens, Director General of the European Consumers’ Organisation (BEUC) commented:
“Vice President Reding’s ambition runs contrary to what consumers and SMEs want and expect the Commission to do to promote e-commerce. Instead, she pushes for high flying academic ideas which will not provide practical benefits to European citizens and contradict the Commission’s own statistics.”
“The stakeholders most concerned by this initiative, European consumers, SMEs and legal practitioners are aligned against it and have written jointly to MEPs asking them not to support it. An Optional Instrument will not help facilitating b2c cross-border transactions, but instead complicate them; in addition there is a clear risk that consumer protection standards will be weakened in many Member States.”