Published by De Gruyter

Volume 16 Issue 2

Issue of European Review of Contract Law

Contents
Journal Overview

Frontmatter

Publicly Available June 9, 2020

Frontmatter

Page range: I-IV

Download PDF

June 9, 2020

Private Law Duties Deriving From EU Banking Regulation and its Individual Protection Goals

Nikolai Badenhoop

Page range: 233-266

Abstract

EU regulation both affects private law and increasingly relies on private law mechanisms to ensure its proper enforcement. Prominent examples are competition and capital markets regulation. In contrast, EU prudential regulation of commercial banking predominantly relies on public enforcement via supervisory authorities. This is astonishing given that the protection of individual bank customers emerges as a leitmotiv of EU banking regulation. CRD IV and CRR as the main legislative acts of EU commercial banking regulation strongly promote the goals of depositor and investor protection. More explicitly, the Consumer Credit Directive and the Consumer Mortgage Credit Directive introduced the duty of responsible lending towards consumers. Where the individual bank customer enjoys regulatory attention, but is not protected by public supervisory authorities, private law is best placed to fill the enforcement gap. In light of CJEU guidance, this contribution argues that the current EU banking regulation is open for and even requires private law remedies to enforce individual protection goals. Suitable instruments are contract interpretation, contract nullity and damages.

June 9, 2020

Legal Transplants: Snapshots of the State of the Art and a Case Study from Central Europe – Post Transplantation-adjustment of Contractual Liability in the New Hungarian Civil Code

Ádám Fuglinszky

Page range: 267-299

Abstract

Strict contractual liability, foreseeability and non-cumul in the new Hungarian Civil Code are a living laboratory of legal transplantation. After an introduction (I) an overview is provided on the state of the art on legal transplants in seven theses (II). A case study follows next (III), sorted into three categories: ‘full legal transplants’ (comparative analyses took place both before and after the transplantation); ‘limping legal transplants’ (no a priori comparative considerations took place but the comparative toolbox is used in interpreting the new rules) and ‘surprising legal transplants,’ based on the spontaneous intuitions of the legislator having resulted in rejection and/or conversion into a ‘legal irritant’. The conclusions (IV) verify the significance of comparative analyses both in the pre- and post-transplantation phase.

June 9, 2020

Contractual Relationships between Investors and Financial Advisors

Sophie Burchardi

Page range: 300-316

Abstract

For investors who are mis-sold financial products, contractual claims against financial advisors are often decisive in compensating losses. The European Court of Justice has decided in its Bankinter judgment that national law must determine the contractual consequences of breaches of the MiFID I (substituted by MiFID II) suitability rule. This article examines the contractual relationships between investors and financial advisors under German, Italian and English law. It highlights the significant differences between the jurisdictions in the questions of when a contractual obligation to give advice arises, which duties must be fulfilled when giving advice and the requirements for damages to be claimed.

EU Legislation

June 9, 2020

European Union Legislation and Actions

Rossella Delfino

Page range: 317-322

EU Case Law

June 9, 2020

The Judgment in Bauer and the Effect of the EU Charter of Fundamental Rights in Horizontal Situations

Dorota Leczykiewicz

Page range: 323-333

June 9, 2020

Does Transparency Lead to Unfairness? The Court of Justice of the European Union on the Duty to Inform about Mandatory Rules

Nicholas Mouttotos

Page range: 334-342

Abstract

The judgment of the Court of Justice of the European Union (CJEU) in Ottília Lovasné Tóth v ERSTE Bank Hungary Zrt can be seen as a missed opportunity, first, in elaborating on Article 3(1) of Directive 93/13, in particular whether the two criteria set by the article, of a term causing a ‘significant imbalance’ and it being contrary to ‘good faith’ should be assessed separately; and, second, in clarifying the status of the transparency requirement found in Article 5 of the directive. This case note focuses on the latter question, taking into account the repercussions of the judgment of the CJEU in Verein für Konsumenteninformation v Amazon EU Sàrl. In the latter case, the CJEU introduced an information duty about the existence of mandatory rules such as Article 6(2) of Rome I Regulation. In its decision in Ottília Lovasné Tóth, the CJEU decided to limit the scope of the judgment in Amazon to the particular circumstances of that case.

Book Review

June 9, 2020

Djakhongir Saidov (ed), Research Handbook on International and Comparative Sale of Goods Law (Cheltenham: Edward Elgar Publishing, 2019) 434 pp, ISBN: 978-1786436146

Miquel Mirambell Fargas

Page range: 343-345

About this journal

This Journal deals with contract law and serves as a pan-European platform for discussion and analysis. The concept of a European Contract Law is still rather recent: the phrase was first coined in the 1990s. Since the early 2000s when this journal was created, European Contract Law has come to encompass an increasingly comprehensive body of law. There were three driving forces behind this development: the EC harmonisation of laws in the area of the internal market, a generally increased interest in comparative law discussions in contract law, and the European Commission’s Communication on European Contract Law, the Commission’s Action Plan and the Common Frame of Reference process. These developments brought about a changed climate of discussion. The foundations of contract law, examined from many perspectives and in view of various national legal systems and an increasing number of disciplines, are currently being discussed in great detail in the European arena. In 10 years contract law may be the first area of European private law to be regulated in a fully fleshed out European Code.

European Contract Law comprises diverse areas of the law such as sales, standard contract terms, distribution chains, marketing practices, research and development agreements, contract law copyright aspects, financial and investment services contracts, insurance contracts and e-commerce as well as non-discrimination within and beyond labour law and more generally, important aspects of labour contracts and other symbiotic contracts.

The importance and breadth of the field and the methods and questions involved are such that ERCL has established itself as the specialised European journal in this area. Since 2004 the standard of information and discussions on this platform have been consolidated: ERCL discusses the body of law in three sections: articles, case law, and literature on EC Contract Law. This takes place mainly in book reviews and, in addition, contains short sections on the most recent EC legislation, sectoral developments, national developments and other news. The Review focuses on existing law at the EC level and all rules influencing the formation, content and execution of contracts from default rules to regulation, from marketing aspects to the content of contracts, from consumer (and also labour) law to general contract law. The Review is open to a variety of approaches and provides the opportunity to read traditional 'dogmatic' explanations of the upcoming and existing law, assessments through comparative law studies as well as economic analysis and discussions of the philosophical foundations and major structural features. The Review is and has been the site of intense discussion of proposals for codification or, more generally, systemisation and comprehensive development of contract law at the EC level. The European Contract Law Code is too realistic an option and much too important not to be thoroughly discussed as transparently as possible with as many competing ideas and approaches as possible. Several special issues have followed this process in great detail. The journal is meant to help in establishing a functional market of ideas in one of the core areas of private law and one of the most important areas of European private law. ERCL is the journal covering this large body of law and the modern solutions to the problems encountered.