Published by De Gruyter

Volume 3 Issue 3

Issue of European Review of Contract Law

Contents
Journal Overview

October 24, 2007

Introduction

Meglena Kuneva

Page range: 239-244

Abstract

It is a great pleasure to be here today – to address this conference and to have the opportunity to listen to your thoughts and ideas regarding the Common Frame of Reference and the Review of the consumer acquis .

October 24, 2007

The Structure and the Legal Values of the Common Frame of Reference (CFR)

Ole Lando

Page range: 245-256

Abstract

The author analyses the planned structure as well as selected provisions of the Common Frame of Reference (CFR), of which the EU commission is promoting the preparation For the time being most of the rules on the general principles of contract law are those of the Principles of European Contract Law (PEC) but there are several changes The authors makes a critical analysis of the structure of these parts and some of the changed provisions which he finds more liberal and less ‘socially’ orientated l' then those of PECL.

October 24, 2007

The Future of the Common Frame of Reference

Hugh Beale

Page range: 257-276

Abstract

In this paper I explain what I, as one of the ‘academic researchers’, understand to the be the purposes of the Common Frame of Reference (‘CFR’), and why I think it deserves support from academic and practising lawyers and businesspeople across Europe. That support is particularly critical at this moment because at one point the European Commission seemed to be on the verge of abandoning the project. Despite recent words of encouragement from the new Commissioner for Health and Consumer Affairs, I am not sure that the danger has passed. I also consider the issue of ‘legitimacy’ of the project.

October 24, 2007

The Common Frame of Reference – The Perspective of a new Member State

Ewa Łȩtowska, Aneta Wiewiórowska-Domagalska

Page range: 277-294

Abstract

For Poland – not only a new member of the European Union, but also a young democracy – EU plans concerning the future of private law have been received with great interest, especially given the background of the legal system, which is still in the process of changing and adjusting to new socio-economic realities. At the same time, Poland suffers from a deficit of information concerning the vision and the process of the europeanization of private law. The first part of this article gives an overview of the current situation of the Polish legal system – it analyses the state of affairs in Poland after 1989 (II), defines the most important problems of the legal system (III), and its greatest challenges (IV). The second part of the article presents a Polish perspective on the harmonisation of private law in general, and on the Common Frame of Reference in particular.

October 24, 2007

The Revision of the Consumer Acquis from a Competition Law Perspective

Giorgio Monti

Page range: 295-314

Abstract

The article considers the relationship between competition and consumer law. First, it notes that consumer law may help render markets more competitive but that it may also restrict competition, requiring the legislator to decide how to trade off consumer protection and competition. Second, it suggests that certain consumer law issues can be addressed using antitrust tools, which sheds some light on how the consumer acquis may be revised. Third, it explores the extent to which competition law is part of consumer law, challenging the approach whereby legality for competition law purposes is conditional on undertakings promising to implement measures to protect consumers, and suggesting a better role for competition law is the supervision of self-regulatory agreements designed to protect consumers.

October 24, 2007

The CFR and the Method(s) of Comparative Legal Research

Marieke Oderkerk

Page range: 315-331

Abstract

In the context of comparative legal research projects aiming at the creation of the Common Frame of Reference it has been argued that it is a flaw in the functional method that it is unable to lead to the ‘best solutions’. This paper argues that the problem belongs to the phase of evaluation of a comparative legal research project and needs an answer from within that context. It further argues that it is correct to say that the functional method is not able to identify the ‘best solutions’, but that it is not its purpose to do so. Rather, its purpose is to identify those objects in the selected legal systems that can usefully be compared. This paper suggests that the functional method should be considered a useful tool in the comparative legal research projects aiming at the creation of the Common Frame of Reference and that what is needed is a set of unequivocal evaluation criteria by which best solutions can be individuated.

October 24, 2007

EC Law on the Formation of Contract – from the Common Frame of Reference to the ‘Blue Button’

Hans Schulte-Nölke

Page range: 332-349

Abstract

One of the core aims of the European Community is the establishment and the better functioning of the Internal Market. As the term ‘market’ is only a metaphor for the place where contracts are prepared and concluded, one would expect that the vast majority of EC law deals with the preparation and formation of contracts. Until now, this is evidently not the case. But there are already quite an impressive and increasing number of individual Directives and other EC law sources which deal directly with contract law. Establishing and improving the Internal Market must indeed also mean improving the possibilities to negotiate contracts and to perform them and, in particular, as far as possible to remove obstacles which result from the fact that there are national borders between potential contract parties situated within the EU. EC law on the preparation and formation of contracts must have the function to permit and to facilitate marketing, advertising, concluding and performing contracts, in particular also for cross boarder situations.

October 24, 2007

Coverage and Structure of the Academic Common Frame of Reference

Christian von Bar

Page range: 350-361

Abstract

The paper discusses the aims and purposes of the Common Frame of Reference (CFR) and describes the scope and structure of the Academic Draft to be delivered up to the European Commssion by the end of 2007 and to be published in an interim outline edition early in 2008. The author explains how the acquis communautaire and the PECL are integrated and why the Academic Draft Common Frame of Reference will also cover non-contractual obligations and, in its final version, even extend to certain matters of movable property law. Together with this final version all comparative material which has been collected over the last ten years by the respective groups and their working teams will be available in print in the second half of 2009. The paper also discusses some political developments relating to the CFR.

October 24, 2007

Case: Supreme Court of the Netherlands – Meurs v Newomij

Page range: 362-371

Abstract

Judgment of the Hoge Raad der Nederlanden of 24 March 2006, J J G Meurs-Van Roodselaar and F L M Meurs v BV Nederlandsche Woningfinanciering Maatschappij, Case C05/011/HR

October 24, 2007

European Community Legislation and Actions

Rossella Delfino, Stéphanie Pelet

Page range: 373-376

Abstract

NB: This section presents a series of non legislative actions and legislative acts directly or indirectly linked to contract law, which were adopted at European level between end February and Mid-May 2007.

October 24, 2007

Books Received and Book Reviews

Page range: 377-380

Abstract

European Private Law – Spot on the National Impact Book review: Die Generalklausel im Europäischen Privatrecht – Zur Leistungsfähigkeit der deutschen Wissenschaft aus romanischer Perspektive (General clauses in European Private Law – On the achievement potential of German legal science from a Romanist perspective), edited by Christian Baldus and Peter-Christian Müller-Graf, Schriften zum Gemeinschaftsprivatrecht, Sellier. European Law Publishers 2006, 193 pages. (Florian Bien)

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.