When attempting to assess the plans the European Union has worked out for the harmonisation of private law, and in particular, of contract law, several methods may be applied. A traditional analysis would approach the issue in terms of the discipline of private law, and examine the following: first, the legal institutions of the national legal systems that afford such an opportunity; second, the possible comparative law background of adopting common rules; third, the methods of assessing this possibility and, fourth, the ways and means of resolving the problems arising from different legal cultures and traditions having divergent terminologies and languages.[1] It will necessarily be scholars of comparative private law who will come to take a stand on the possibilities of legal harmonisation. Such an assessment is a fundamental and indispensable condition of elaborating any justifiable programme on legal harmonisation. This was essentially the approach taken by the Lando Commission, when preparing Principles of European Contract Law,[2] as well as the Trento Project[3] and the Study Group on the European Civil Code[4], when analysing the possible solutions to concrete cases according to the various rules of the national legal systems.
It would not be irrelevant - and it would indeed aptly supplement the methods of examination mentioned above -to approach the harmonisation of contract laws from the point of view of the institutional and legal system of the European Union. In so doing, we would face such questions: How far does the functioning of European integration require the adoption of common rules for certain types of transaction? What legal base does the Treaty on the Functioning of the European Union (TFEU) provide for putting into practice the said harmonisation? And how can the actual application and unified interpretation of acts of the European Union be ensured? On this basis, we will arrive at a position on the possibilities and limits of the approximation of contract laws in the European Union. This was the attitude which the European Commission itself followed in three formerly issued Communications which
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sought to explore the possibilities of harmonising European contract laws.[5]
When assessing the feasibility of approximation of laws, it must always be borne in mind that the European Union has no general power to legislate: it is obliged to find a particular provision in the Treaty on the Functioning of the European Union that affords legal grounds for adopting any EU act. With regard to contract law, Articles 114, 115, 169 and 352 can serve as the legal base of legislation.[6]
Article 115 authorises the Council, acting unanimously, to issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the internal market. A related provision laid down in Article 114 lends scope for adopting measures to establish and ensure the functioning of the internal market.[7] Taking Union action is easier in this case in so far as the Council may make its decisions according to ordinary legislative procedure by qualified majority voting.[8] Referring to Article 114 of the TFEU, the appropriate functioning of the internal market and the elimination of obstacles to trade between the Member States became a recurrent theme of the directives aiming at the approximation of contract laws. This established practice, however, was limited by the decision of the European Court of Justice made on the Federal Republic of Germany v. European Parliament and Council of the European Union case in October 2000.[9]
Though the ruling was not passed on a directive that is aimed at the approximation of contract law, it has far-reaching consequences in that respect, as well. The European Court of Justice provided an authentic piece of legal interpretation of Article 95 of the EC Treaty (now Article 114 of the TFEU) that will have to be taken into consideration by Union legislature if it intends to regulate the internal market with recourse to it as a legal base. The requirement of verifying the specific trade-restricting effects resulting from the disparities of national laws will presumably stand in the way of the lofty notions of codification that wish to regulate - in obligatory legal sources - the whole field of contract law and civil law at Union level.[10]
By virtue of Article 169 of the TFEU, legislation on the harmonisation of laws governing consumer contracts has been granted specific powers. Accordingly, the Union contributes to a high level of consumer protection by measures (laws) adopted pursuant to Article 114 of the TFEU in the context of the completion of the internal market.[11]
Article 352 of the TFEU might again seem to confer a general legislative power, in so far as it lays down the following: "If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures."
Nevertheless, the Union legislature has to be aware of two serious limitations before adopting any act by recourse to Article 352 of the TFEU as its legal base. One of them is the requirement of unanimity clearly stated in the text, which is very difficult to achieve between the 28 Member States. The other one is actually a substantive limitation imposed by Opinion 2/94 of the European Court of Justice.[12] According to this, Article 308 (earlier: 235) of the EC Treaty, the predecessor of Article 352 of the TFEU, could not be used as a base for the adoption of a provision which would widen the scope of Union powers beyond the general framework created by the provisions of the Treaty as a whole and, in particular, by the ones that define the tasks and the activities of the Union.[13] No measure of constitutional importance, i.e. one that would mean a significant widening of the scope of action of the Union, could therefore be adopted on the basis of a conferral of power under Article 352 of the TFEU; in other words, the powers on integration conferred cannot be increased in this way. Though the invocation of Article 352 of the TFEU is not without precedent in legislation touching on private law,[14] in view of the above, it could hardly be relied
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on as a basis of, say, a comprehensive, obligatory regulation of contract law at Union level.[15]
Union legislature faces difficulties which have accumulated in the course of harmonising contract laws. Any effort at legal harmonisation has to grapple with such complications but some of these issues stem from EU law itself. It is perhaps opportune to mention some of them, illustrating the obstacles to harmonisation which arise at various stages of its implementation by means of a fictitious example:
The European Commission drafts a proposal for a directive on the harmonisation of a certain area of contract law. The initiative sparks heated debate with the Member States; members of the European Parliament, stakeholders and scholars of law were divided over the need for this harmonisation.
(i) The proposal due to the limited scope of the provisions (legal base) granted for EU legislation covers a smaller area than the context of the private-law matters at hand would otherwise require.
(ii) In order to strike a deal between the Member States, the directive stipulates alternative rules, aiming at only minimum harmonisation and it refers back, from time to time, to the laws of the Member States, thereby accomplishing only a relative degree of harmonisation.
(iii) After several years of drafting, the directive is transposed by a number of Member States with considerable delay, while others, implementing it, pass faulty legislation. Further, the European Court of Justice refuses to acknowledge its direct horizontal effect, i.e. its applicability between private persons before national courts. On top of this, the laws of Member States allow different rooms for manoeuvre for an interpretation in conformity with the directive, or courts take different positions on the issue.
(iv) The transposition of the directive varies, too: some legislatures pass a special act while others amend their existing codes at the price of significant differences and contradictions.
(v) As a result of such factors as differences between court rules and civil procedure, and the assertion of rights under the directive before the courts of the Member States, the duration and costs of lawsuits are quite different in the Member States.
(vi) Finally, the courts of some Member States are reluctant to request preliminary rulings from the European Court of Justice and thus there is little chance of shaping a single interpretation of the directive.
In its Communications, the European Commission has often taken into account the difficulties of harmonisation, especially the consequences of piecemeal and transaction-specific regulation. It has been observed that there are unjustified divergences from current EU directives on contract law, which may treat similar life situations differently and stipulate different requirements. Thus, for instance, in the case of consumer transactions they provide for different deadlines and methods of calculation for withdrawal.[16] As an unwanted side effect, several EU acts may be applicable to the same situation, or their national transpositions may have a different content. Two different legislative approaches may feature in a single directive. Directives often use abstract legal terms, but they might not define them, or give them an overly broad definition. Certain terms are defined in some directives, while they are not defined in others, raising the interpretation issue of whether a definition in one directive can be exported to another. Apart from this, a situation might easily occur when the terms used by EU acts are simply alien to one legal system or another.[17]
At this point, questions inevitably arise: Has the harmonisation of a given area of contract law actually been attained? Does the result justify the vast amount of money and time expended on it? Naturally, not all attempts at harmonisation lead to such a magnitude and accumulation of problems. Nevertheless, the difficulties outlined are genuine and typical, so much so that they render the establishment of a comprehensive, monolithic European regime of contract law unreal and unreasonable. It would, therefore, be only justified for the European Union to seek proportion and exercise restraint, in other words, to take full account of the principle of subsidiarity in any future harmonisation touching on contract law. Such a realistic approach has been given increasing emphasis in legal literature. Thus, the third edition of the collection of now classic studies on private-law harmonisation, Towards a European Civil Code,[18] has afforded much more attention to this issue, than it had done to the cultural differences that limit the possibilities of legal harmonisation. One eminent contributor to the volume, Brigitta Lurger, pointed out the lack of mapping of the social background of contract law,[19] while Vincenzo Zeno-Zencovich and Noah Vardi foresaw immense difficulties in any future adoption of a European contract-law
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codex.[20] Not to mention the long-time critic of private-law unification, Pierre Legrand, who calls the proposal for a European Civil Code point-blank "a diabolical idea," a boorish assault on the diversity of the laws of the Member States.[21]
In its 2001 Communication, the European Commission outlined four possible scenarios on the role of the Community[22]: (i) The Community does not take any action in this field, trusting that the entwining markets, the initiatives of enterprises and the Member States will establish the required harmony between European contract laws. (ii) The second possibility is that the Commission - in conjunction with scholars of comparative law, legal theorists and practitioners - promotes the development of non-binding common principles of contract laws, which could lead to the eventual approximation of the contract laws of the Member States in so far as these principles are accepted in commercial practice and their voluntary application becomes widespread. In line with this kind of development, standard contracts modelled for cross-border transactions would be compiled. (iii) The review and improvement of existing legislation in view of its revealed shortcomings. (iv) Finally, it is conceivable that the Community would undertake to regulate contract law comprehensively through regulations, directives or recommendations.
The aim of the Communication was primarily to foster widespread discussion of the issues surrounding the future of European contract law for stakeholders, academic workshops, legal practitioners, governments and the Commission itself.
The results of the ensuing debates were first published in 2003 and they were summed up, in a largely congenial way, by the Commission in 2004.[23] According to the 2003 summary, only a fragment of the opinions delivered to the Commission believed that reliance on the market was enough. Significantly more respondents supported the elaboration of common principles of contract law, but the majority deemed that the way forward was the review and improvement of existing acts. This also meant that the majority rejected the idea of Community legislation on the harmonisation of European contract laws, at least in the situation prevailing at the time. In the light of this, the Commission declared in its 2004 Communication that it is not "the Commission's intention to propose a »European civil code« which would harmonise contract laws of Member States." Instead, it would support, in order to improve the coherence of existing and future acquis, the development of a Common Frame of Reference (CFR), and foresaw its adoption in 2009, following thorough preparatory work.[24]
In conclusion, the Commission exercised considerable self-restraint in drafting its proposals and setting its time schedule for the tasks involved. As attested to by the 2004 Communication, this cautiousness can perhaps be attributed to its recognition of "the need to respect different legal and administrative cultures in the Member States" and "the range of different legal traditions in the European Union".[25] This cautious approach to the harmonisation of contract law was confirmed by the Stockholm Programme[26] of the European Union for 2010-2014 which invited the Commission to submit a proposal on the CFR. According to this programme the CFR should be a non-binding set of fundamental principles, definitions and model rules to be used by the law-makers at Union level to ensure greater coherence and quality in the law-making process.[27]
In April 2010 the European Commission set up an expert group with a promising mandate to assist in the preparation of a Common Frame of Reference of European contract law, including consumer and business law.[28] After
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an astonishingly short period of time, after twelve meetings within twelve months, the expert group published its "Feasibility Study"[29], actually a set of rules on general contract law. Based on this work, a draft Regulation on Common European Sales Law (CESL) was disclosed in October 2011 by the Commission.[30] One could suppose at that time that the long-fore dream of creating a European Contract law would be fulfilled very soon. This was the first time that the EU promulgated a comprehensive draft law on sales - so, the project became more than a fascinating research subject for eminent scholars. However, in December 2014, the newly appointed Commission, "clearing the decks"[31], withdrew the existing proposal for CESL in the Annex of its Work Programme. The diplomatically phrased reason offered for the withdrawal was to prepare a "Modified proposal in order to fully unleash the potential of e-commerce in the Digital Single Market".[32]
However, the new initiative for contractual rules on online sales - focusing on an important but a much narrower field -is clearly different form the idea of Common European Sales Law. This U turn raises important questions: What has gone wrong? Is it the end of a "Grand Illusion", despite all the Resolutions of the European Parliament on a European Civil Code, later on contract law[33] and several Communications, green papers, progress reports[34] of the Commission? Are there any lessons to be learned for future plans of harmonisation of private law in Europe? Looking back to the exercise retrospectively, it is obvious that there were several layers of problems, and even a few of them could have been sufficient to derail the CESL project. At this point it is worth to revisit the legal base problem.
According to the proposal of the Commission, the CESL had the goal to work as a 'second contract law regime within the national laws of each Member State'[35]. This innovative, however somewhat complicated approach[36] is worth further analysis. The choice of the CESL as secondary contract law regime presupposes that a national law has already been selected according to the rules of private international law, more precisely according to Regulation Rome I[37] in the EU. This prior selection of the governing national law can be the result of the choice of the parties[38] or it is determined as the applicable law in the absence of choice.[39] Although the selection of the CESL can be reached practically by one strike, logically it includes two steps: first, designating a legal system of a Member State and then, within this national law, choosing the CESL.[40] This regime is characterised as a "Vorschaltlösung" by Mankowski.[41]
Based on this solution one can consider CESL as a dormant or latent secondary contract law within national laws.[42] The Regulation on CESL would build optional rules into national legal systems - in an abstract sense. Only the choice of the parties triggers or activates the application of CESL; their decision can make the CESL a real secondary contract law operative in their transactions.
Perhaps the sensitivity of the legal base issue was one of the reasons of presenting the CESL as a "second contract law regime" instead of a sui generis European legal regime[43], since
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without presenting CESL as harmonisation of national laws, Article 114 could not be considered as a proper legal base. However this solution is still problematic. Article 114 does not have a solution for "optional instruments" which would not harmonise the law of the Member States in a strict sense, but which, as sui generis European rules, exist parallel to national laws. Article 352 could be a proper reference for the adoption of such instruments, however for a heavy price to be paid, which is the unanimity requirement in the course of the decisionmaking of the Council of Ministers of the EU. A veto right enjoyed by any Member State can easily block the adoption of even a well-prepared proposal in a Union of 28 Member States.
Before the publication of the CESL there was no sufficient time for discussing and digesting all aspects of the advantages and disadvantages of the "second national contract law regime concept" and for analysing all the nuances of the "Vorschaltlösung". This solution came as a surprise for the academic community, although it had far-reaching consequences to the relationship with Regulation Rome I as well.
Although Preamble paragraph (14) of Regulation Rome I had foreseen that "Should the Community adopt, in an appropriate legal instrument, rules of substantive contract law, including standard terms and conditions, such instrument may provide that the parties may choose to apply those rules.", the CESL was not presented as a sui generis European legal instrument, but as a second contract law regime carefully implanted in the legal system of each Member States.
In sum: It is necessary to clarify the legal base and competences of the EU. At present, as it was explained above, neither Article 114 nor Article 352 of the TFEU is ideal. So, presumably an amendment of the TFEU, expressly facilitating - without the high threshold of unanimity requirement - the adoption of new instruments, creating a sui generis European legal regime in certain fields parallel to national laws, could pave the way to the adoption of a future Common European Sales Law. ■
NOTES
[1] Konstantinos D. Kerameus, "Problems of drafting a European Civil Code." In: European Review of Private Law, vol. 5, no. 4, 1997, pp. 475-476.
[2] Ole Lando and Hugh Beale (eds.), Principles of European Contract Law, Parts I and II. The Hague, London, Boston: Kluwer Law International, 2000, pp. xi-xvi; Ole Lando, Eric Clive, André Prüm and Reinhard Zimmerman (eds.), Principles of European Contract Law, Part III. The Hague, London, Boston: Kluwer Law International, 2003. pp. ix-xii; Luisa Antoniolli and Anna Veneziano (eds.), Principles of European Contract Law and Italian Law. A Commentary. The Hague: Kluwer Law International, 2005, pp. 5-6. In Hungarian legal literature the harmonisation of private law in Europe is thoroughly analysed by László Kecskés, A polgári jogfejlődése a kontinentális Európa nagy jogrendszereiben. Történeti vázlat [The Development of Civil Law in the Major Legal Systems of Continental Europe. A Historical Overview]. BudapestPécs: Dialógus-Campus Kiadó, 2004, pp. 457-517. The cultural context of harmonisation of private law is demonstrated by Csaba Varga, Jogrendszerek, jogi gondolkodásmódok az európai egységesülés perspektívájában [Legal systems and ways of legal thinking in the perspective of European unification]. Budapest: Szent István Társulat, 2009, especially pp. 83-120. Similarly, Rafael Manko: The Culture of Private Law in Central Europe After Enlargement: A Polish Perspective. In: European Law Journal, Vol. 11, No. 5. September 2005, pp. 527-548.
[3] Hein Kötz, "The Common Core of European Private Law: Third General Meeting, Trento 17-19 July 1997." In: European Review of Private Law, vol. 5, no. 4, 1997, pp. 549-552; and Ewoud Hondius, "The Common Core of European Private Law, Trento, 15-17. July 1999." In: European Review of Private Law, 2000, vol. 8, no. 1, pp. 249-251.
[4] The Study Group on a European Civil Code and the Research Group on the Existing EC Private Law (the 'Acquis Group') presented the Draft Common Frame of Reference (DCFR): Christian von Bar, Eric Clive and Hans Schulte Nölke (eds.), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR). Outline edition. Munich: Sellier, European Law Publishers, 2009. The complete results of the Study Group on European Civil Code and the Research Group on the EC Private Law were published by Christian von Bar and Eric Clive (eds.), Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR). Full edition, Volumes I-VI, Munich: Sellier, European Law Publishers, 2009.
[5] Communication from the Commission to the Council and the European Parliament on European contract law. Brussels, 11.07.2001, COM (2001) 398 final; Communication from the Commission to the European Parliament and the Council. A more coherent contract law. An action plan. OJ C 63, 15.3.2003 (COM [2003] 68 final), p. 1; and Communication from the Commission to the European Parliament and the Council -European Contract Law and the revision of the acquis: the way forward. Brussels, 11.10.2004, COM (2004) 0651 final. A Green Paper from the Commission on policy options for progress towards a European Contract law for consumers and businesses was published in 2010. 1.7.2010. COM (2010) 348 final.
[6] Former Articles 94 (100), 95 (100/A), 153 (129/A), 308 (235) of the EC Treaty. For an analysis of the issue in respect of the harmonisation of private law as a whole, see Walter van Gerven, "Coherence of Community and national laws. Is there a legal basis for a European Civil Code?" In: European Review of Private Law, vol. 5, no. 4, 1997, pp. 465-470 [van Gerven, 1997]
[7] I decline giving a definition of the competing concepts of the common market and the single market, formerly included in the EC Treaty, as this would lead beyond the actual scope of this study. For a discussion of the question, see Anthony Arnull, Alan Dashwood, Malcolm Ross, and Derrick Wyatt, European Union Law. London: Sweet & Maxwell, 2000, pp. 502-503.
[8] As the decision-making procedure in this respect is defined by Article 294 of the TFEU, earlier Article 251 (189/B) of the EC Treaty.
[9] Case C-376/98, Federal Republic of Germany v. European Parliament and Council of the European Union. ECR (2000), p. 8419.
[10] But a few years earlier, Winfried Tilmann had conceived the possibility of creating a European Civil Code on the basis of Article 95 of the EC Treaty. See his "The Legal Basis for a European Civil Code." In: European Review of Private Law, vol. 5, no. 4, 1997, pp. 471-472.
[11] Article 169 paragraph 1 TFEU, formerly Article 153 paragraph 3(a) of EC Treaty.
[12] Opinion 2/94 of the Court pursuant to Article 228(6) of the EC Treaty (Accession by the Communities to the Convention for the Protection of Human Rights and Fundamental Freedoms), ECR (1996), p. I-1759.
[13] See especially point 30 of the Court opinion.
[14] Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping (EEIG), OJ L 199, 31.7.1985, which was adopted on the legal base of Article 235 (later 308) of the EC Treaty.
[15] In October, 1999, the Tampere European Summit Conclusions urged legal approximation, "greater convergence in civil law", and stated: "As regards substantive law, an overall study is requested on the need to approximate Member States' legislation in civil matters in order to eliminate obstacles to the good functioning of civil proceedings. The Council should report back by 2001." Point VII/39, Presidency Conclusions, Tampere European Council, 15-16 October.
[16] These problems are partially tackled by the Consumer Rights Directive (CRD): Directive 2011/83/EU on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/ EEC and Directive 97/7/EC of the European Parliament and of the Council.
[17] See points 13-24 of COM (2003) 68 final.
[18] Arthur S. Hartkamp, Martijn Hesselink, Ewoud H. Hondius, Carla Joustra, Edgar Du Perron, and Muriel Veldman (eds.), Towards a European Civil Code. The Hague, London, Boston: Ars Aequi Libri -Nijmegen, Kluwer Law International, third fully revised and expanded edition, 2004, 847 pp.
[19] Brigitta Lurger, "The 'Social' Side of Contract Law and the New Principle of Regard and Fairness." In: Hartkamp et al., 2004, pp. 273-304.
[20] Vincenzo Zeno-Zencovich and Noah Vardi, "The Constitutional Basis of a European Private Law." In: Hartkamp et al., 2004, pp. 205-214.
[21] Pierre Legrand, "A Diabolical Idea." In: Hartkamp et al., 2004, pp. 245-272.
[22] Communication from the Commission to the Council and the European Parliament on European Contract Law. Brussels, 11.07.2001. COM (2001) 398 final, points 49-70.
[23] See Communication from the Commission to the European Parliament and the Council. A more coherent contract law. An action plan. 15.3.2003. COM (2003) 68 final, p 1; Communication from the Commission to the European Parliament and the Council - European Contract Law and the revision of the acquis: the way forward, Brussels, 11.10.2004, COM (2004) 651 final. For an introduction to both Communications, see János Verebics, Az európai magánjogfejlődésének főbb irányai [Major Tendencies in the Development of European Private Law]. Budapest: Miniszterelnöki Hivatal, Európai Integrációs Iroda, 2004. See also Ugo Mattei, "Basics First Please! A Critique of Some Recent Priorities Shown by the Commission's Action Plan." In: Arthur S. Hartkamp et al., op. cit., 2004, pp. 297-304.
[24] The Commission funded a three-year research programme for the preparation of the CFR; scholars were to present their final report in 2007. The final result of the academic co-operation and network was published in 2009: Christian yon Bar, Eric Clive and Hans Schulte Nölke (eds.), Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR). Outline edition. Munich: Sellier, European Law Publishers, 2009. The complete results of the Study Group on European Civil Code and the Research Group on the EC Private Law were published by Christian yon Bar and Eric Clive (eds.): Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR). Full edition, Volumes I-VI, Munich: Sellier, European Law Publishers, 2009.
[25] Points 2.3 and 3.1.2 ibid.
[26] Stockholm Programme - an open and secure Europe serving and protecting citizens, adopted by the European Council in December 2009, as cited by the preamble of Commission Decision of 26 April 2010.
[27] The European Commission set up the Expert Group on a Common Frame of Reference in the area of European contract law by its decision of 26 April 2010. OJ L 105, 27.4.2010, pp. 109-111. This expert group has the mandate to assist the Commission in preparing a proposal for a Common Frame of Reference in the area of European contract law, using the Draft Common Frame of reference as a starting point.
[28] Commission Decision of 26 April 2010 setting up the Expert Group on a Common Frame of Reference in the area of European contract law. (2010/233/EU) OJ 27/4/2010, L 105/109).
[29] A European contract law for consumers and businesses: Publication of the results of the feasibility study carried out by the Expert Group on European contract law for stakeholders' and legal practitioners' feedback. 03.05.2011.
[30] Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law. Brussels 11.10.2011. COM (2011) 635 final.
[31] See the website of the EU Commission: http://ec.europa.eu/priorities/work-programme/index. Consulted on 13 August 2015.
[32] Commission Work Programme 2015, A New Start, Strasbourg, 16.12.2014, COM (2014) 910 final. Annex II: List of withdrawals or modifications of pending proposals, item 60. The Commission has withdrawn altogether 80 former proposals.
[33] Resolution of 26 May 1989 on action to bring into line the private law of the Member States, OJ C 158, 26.6.1989, p. 400; Resolution of 6 May 1994 on the harmonisation of certain sectors of the private law of the Member States, OJ C 205, 25.7.1994, p. 518; Resolution of 15 November 2001 on the approximation of the civil and commercial Law of the Member States, OJ C 140 E, 13.6.2002, p. 538; Resolution of 2 September 2003, OJ C 76 E, 25.3.2004, p. 95; Resolution of 23 March 2006 on European contract law and the revision of the acquis: the way forward; OJ C 292 E, 1.12.2006, p. 109; Resolution of7 September 2006 on European contract law, OJ C 305 E, 14.12.2006, p. 247; Resolution of 12 December 2007 on European contract law, OJ C 323E, 18.12.2008, p. 364; Resolution of 3 September 2008 on the common frame of reference for European contract law, OJ C 295E, 4.12.2009, p. 31; Resolution of 8 June 2011 on policy options for progress towards a European contract law for consumers and businesses, OJ C 380E 11.12. 2012, p.59; Legislative resolution of 26 February 2014 on the proposal for a regulation of the European Parliament and of the Council on a Common European Sales Law (COM [2011]0635 - C7-0329/2011 -2011/0284[COD]) (Ordinary legislative procedure: first reading).
[34] Communication from the Commission to the Council and the European Parliament on European Contract Law. Brussels, 11.07.2001. COM (2001) 398 final; Communication from the Commission to the European Parliament and the Council. A more coherent contract law. An action plan. 12.3.2003. COM (2003) 68 final; Communication from the Commission to the European Parliament and the Council - European Contract Law and the revision of the acquis: the way forward, Brussels, 11.10.2004, COM (2004) 651 final. Furthermore, a Green Paper from the Commission on policy options for progress towards a European Contract Law for consumers and businesses was published in 2010. 1.7.2010. COM (2010)348 final.
[35] COM (2011) 635 final, recital (9): "This Regulation establishes a Common European Sales Law. It harmonises the contract laws of the Member States not by requiring amendments to the pre-existing national contract law, but by creating within each Member State's national law a second contract law regime for contracts within its scope. This second regime should be identical throughout the Union and exist alongside the preexisting rules of national contract law. (...)"
[36] Martijn Hesselink, How to opt into the Common European Sales Law. Brief Comments on the Commission's Proposal for a Regulation. 2012 (20) ERPL 1, pp. 195-212, (p. 198). Eidenmüller et al. op. cit. p. 313.
[37] Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) Official Journal L 177/6, 04/07/2008 pp. 0006 - 0016.
[38] Art. 3 1. of Regulation Rome I.
[39] Art. 4 of Regulation Rome I.
[40] Hesselink op. cit. p. 199.
[41] "Zum CESL komme Man im Prinzip nur, wenn Art 3 oder 4 Rome I-VO zum Recht eines Mitgliedstaates führe. Die Kommission will also das IPR in Gestalt der Rom I-VO Vorschalten. Sie wird eine Vorschaltlösung." Peter Mankowski, Der Vorschlag für ein Gemeinsames Europäisches Kaufrecht (CESL) und das Internationale Privatrecht, RIW, 2012, No 3, pp. 97-105 (p. 100).
[42] Unlike CISG rules backed by a ratified Convention.
[43] As it was foreseen by Regulation Rome I earlier in its Preamble paragraph (14).
Lábjegyzetek:
[1] The author is PhD, Habil.; Dean, Professor and Head of Department (Eötvös Loránd University, Faculty of Law).
Visszaugrás
