A European Contract Law,or an EU Contract Law Regulation for Consumers?

The paper informs about initiatives of the EC Commission to create a set of instruments for advancing a European contract law, in particular a “common frame of reference.” It questions the underlying assumptions in the still somewhat unclear and open Commission communications. It doubts whether EU has any competence to harmonise contract law under the internal market jurisdiction of Art. 95 EC. As an alternative, it proposes the elaboration and eventual adoption of an EU consumer contract law regulation (ECCLR) based on Art. 153 (3) b) EC which would take direct effect and be limited to minimal, yet directly applicable rules on consumer protection in contract law. Norbert Reich is Professor of Civil, Commercial, and EC Law at the University of Bremen. Mail address: Andreasstr. 29, D-22301 Hamburg, Germany. e-mail: n.reich1@gmx.net.     

Policy and practice in Germany

Abstract: In Germany, EU directives have been the primary source of consumer protection legislation in banking and financial services, especially legislation on consumer credit and investment services. Otherwise, there is little significant statute law, either at federal or provincial (Länder) level, apart from a recent Consumer Bankruptcy Law. Most consumer problems have to be solved within the framework of the very general Civil Code or the law on unfair contract terms. This means that there is strong emphasis on the role of the courts in interpreting the law in specific cases. In recent years consumer organizations have played an important part in bringing class action cases in the courts – notably on issues concerned with value dating, bank charges and the early termination of mortgage and insurance contracts. There is virtually no tradition of securing consumer protection through codes of conduct. Banking ombudsman schemes have been set up in recent years, but are subject to some criticisms by consumer organizations.     

中国商法国际化的制度困境和发展路径——以民法典编纂中的国际化得失为镜鉴

商法国际化是对经济全球化下商法国际趋同的制度回应，亦是商法自我发展和民商法体系内部完善的客观要求。受限于商法传统，中国在过去商法国际化的过程中出现了立法理念错位、法律移植障碍和国际化效果欠佳的制度困境，而当前民法典的编纂则进一步加剧了商法国际化所面临的复杂环境。民法典国际化立法所引发的体系矛盾、司法障碍、立法滞后等问题值得商法所镜鉴。在此背景下，构建商法国际化的发展路径应围绕法体系、法理念、法技术三个角度，体系上通过《商法通则》立法来弥补现有民商法体系中商事一般法的缺位问题，理念上通过强调商法的自治属性来为国际化立法提供指导理念，技术上通过拓宽法律移植的对象范围来实现商法移植技术的转型。     

The European influence on German consumer law

At the outset, the article compares the EC directives in the field of consumer protection and the corresponding German transposition acts which are the core of German consumer law. This is followed by a discussion on the Act against Unfair Competition (UWG) and the Standard Contract Terms Act (AGBG). Although these were not designed as consumer protection acts, they are of great importance for consumer protection, as both include the right for consumer organizations to take action.The legislator does not transpose EC directives to sections of the Civil Code (BGB), not even if there are relevant provisions in the BGB, nor does he incorporate relevant case law into transposition acts. Case law plays a very important role in consumer protection. This makes German consumer law very confusing. In a given case not only is the transposition act applicable, but also the relevant judge-made law which is based on the BGB and its general clauses and may have a different scope of application.For many years, the German legislator has not passed any bills to protect consumers apart from the transpositions of EC directives. So good news for consumers in legal matters stem only from the EC and from the courts.

---

Der europäische Einflu\ auf das deutsche Verbraucherrecht

Zusammenfassung Der Beitrag geht von einer Gegenüberstellung der einschlägigen EG-Richtlinien und ihrer Umsetzung in deutsches Recht aus. Sie sind das Kernstück des deutschen Verbraucherrechts. Für den rechtlichen Verbraucherschutz sind darüber hinaus zwei Gesetze von gro\er Bedeutung, die nicht als spezifische Verbraucherschutzgesetze konzipiert sind, das UWG und das AGBG, die beide eine Verbandsklagebefugnis enthalten, die auch für Verbraucherverbände gilt.Der Gesetzgeber übernimmt Richtlinien regelmä\ig nicht ins BGB, auch wenn einschlägige Materien dort enthalten sind, und inkorporiert auch nicht von der Rechtsprechung entwickelte Regeln in die Umsetzungsgesetze. Dadurch wird das Verbraucherrecht unübersichtlich, weil neben den Umsetzungsgesetzen jeweils auch die Rechtsprechung zu beachten ist, die auf den Vorschriften des BGB und seinen Generalklauseln beruht und z.T. einen abweichenden Anwendungsbereich hat.Der deutsche Gesetzgeber verzichtet seit vielen Jahren auf eigene Anstö\e zum rechtlichen Verbraucherschutz und überlä\t dies der EG sowie den Gerichten.

     

Zielsetzungen und Instrumentarien der europäischen Verbraucherrechtspolitik: Eine Analyse von Entwicklungen im Bereich des Zivilrechts

Objectives and instruments of European consumer policy: An analysis of developments in the area of civil law. The paper discusses the relationships and conflicts between the objectives pursued by European consumer policy and the means which are at its disposal. As a first step, the theoretical assumptions of this policy are analysed by an evaluation of the EC Programme for a Consumer Protection and Information Policy of 1975 and of the draft directives on product liability, on misleading and unfair competition, on doorstep sales, and on correspondence courses. It is suggested that the European approach toward consumer protection largely corresponds to the policies prevailing at the national level: Consumer protection is seen as a supplement to the traditional market and competition policy which used to be restricted to regulating competition between producers or suppliers of goods and services, whereas the new policy focuses on the relations between producers and consumers. Nevertheless, consumer policy adheres to the basic presumptions of market economy. It presupposes that the demands of the consumer have to be articulated and satisfied via market processes. It therefore primarily relies on regulations directed against misleading advertising, on protecting justified expectations as to the quality of goods or services by providing redress for losses sustained, and by endeavours aimed at securing a more rational behaviour of the individual consumer. The most important means to promote this policy on the European level are the directives which aim at consonance among national laws (Art. 100 EC Treaty). This is indicative of a market orientation of consumer policy in so far as the harmonization of law is seen as a device for overcoming discriminating effects or distortions of competition created by the differences among national laws thereby furthering a better functioning of the Common Market (Art. 3 h EC Treaty). This accordance of consumer policy and harmonization policy does not rest on firm ground, however. In consumer policy it becomes more and more obvious that the efforts to protect the interests of the consumer lead to further interventionist activities. This process also reveals the need for systematic adjustments or consultations between consumer policy and other fields of politics. A harmonization policy which is primarily centered on breaking down trade barriers and on overcoming discriminating effects of competition cannot respond to the needs and problems of such interventionist activities. Therefore, the harmonization of consumer law should be conceived as a process of formulating broader policies directed at a congruous development of the economic sphere and at an improvement of the living conditions in the Common Market (cf. Art. 2 and the preamble of the EC Treaty). Legal techniques which might be adopted to support such an orientation are (a) in the EC directives to lay down minimum standards for the national legislation, (b) to use a conflict-of-laws approach which would allow to respect and try to coordinate legitimate interests in the application of national consumer policies, and (c) the development of special rules responding to the international aspects of the exchange between producers and consumers. At present, however, European policy gives hardly any attention to the chances and problems of such an approach requiring a complicated coordination of the various legal techniques.     

Die Verbraucheransprüche und ihre Geltendmachung durch Verbraucherverbände nach der UWG-Novelle

According to West German civil law, consumers who have become victims of false or misleading competition have only limited rights with regard to compensation and withdrawal — this is a predominant opinion in the FRG. For this reason the Federal Government plans to amend the Law on Unfair Competition, with the intention of strengthening consumer protection. The bill was formulated by government experts but experienced several restrictions even before parliament discussions began. The author argues that the government bill will not reach its originally intended purposes. It does not assume that unfair competition in itself leads to the making of a contract. Instead the consumer has to prove that a specific instance of advertising was the (only) reason for the completion of a transaction. This condition will make the new law ineffective. According to the bill the consumer himself has the burden of proving the falsehood of advertising; only in this case is he allowed to demand the difference between the real value of an article and that value advertising has promised. This is a very dubious condition of the bill. The second part of the article deals with the rules specifying the right of consumer associations to sue. They must be seen as an impediment to the activities of the associations. The introduction of registration procedures will cause them additional costs. In the third part, the author maintains that support of consumer associations is unavoidable for an effective strengthening of consumer interests. As everyone knows, it is not easy to approach courts, especially for lower class people. It should be the task of public consumer policies to make consumer associations attractive to these groups, and to supply them with juridical and material possibilities. The bill is not able to contribute to these purposes; in some parts it blocks effective work in the interests of consumers.     

Unfair Consumer Contract Terms Under Macedonian Law: How the Old and the New Function in Practice

This article analyses the functioning in practice of the system of substantive regulation of unfair terms in consumer contracts, introduced into Macedonian law as part of the harmonization obligations of the EU accession process. Specifically, the article seeks to establish the possible reasons for the absence of substantial evidence of application of the rules on unfair contract terms in consumer contracts in Macedonian practice. In providing an explanation, the focus is on the transposition of the consumer acquis and the Unfair Contract Terms Directive into national law, the enforcement structure for consumer law, and the relationship with the pre-existing civil law. In sum, the inconsistencies and incompleteness of the transposition, the weak and complex enforcement structure, as well as the unsettled relationship with the already existing civil law rules on similar topics have all contributed to weaken the practical significance of the special law on unfair contract terms.     

论三类特殊涉外合同之债准据法制度的转型发展

三类特殊涉外合同的准据法制度产生于20世纪80年代,根植于计划经济的土壤,其浓厚的法律属地主义倾向与市场经济的本质要求及国际通行规则不相吻合。在全面深化改革的新时期,推动该制度的转型发展已势在必然。国家层面正在推进的民法典编纂工作为该制度的转型发展提供了切实可行的实现路径。     

The Protection of Consumers' Interests After the Implementation of the EC Injunctions Directive Into German and English Law

This article briefly outlines the development of EC law on litigation by consumer associations (Part A) and then analyses German and U.K. law, highlighting the recent law reforms instigated by the adoption of Directive 98/27/EC on injunctions for the protection of consumers' interests (Parts B and C). The article argues that the traditionally divergent approaches in Germany and the U.K. are continued and reveals differences both in the details of the relevant regulations and in the general role consumer groups will be able to play in protecting the collective interests of consumers. It is demonstrated that the reluctance of the U.K. approach is neither in line with the intentions of the EC nor justified in the light of the German experience. The article concludes with proposals for the U.K. law reform and argues that a less restrictive, or maybe revolutionary, approach should be followed by the U.K. legislator (Part D).     

区域商贸流通发展与公路交通水平计量分析

基于灰色关联模型的计量分析,发现地区商贸流通业发展与公路交通基础设施水平具有较强的关联性:在公路里程、公路客运量、公路货运量和民用汽车拥有量中,民用汽车拥有量是最重要的影响因素,公路货运量次之;在社会消费品零售总额、市的零售额、县的零售额、县以下的零售额、批发和零售业零售额、住宿和餐饮业零售额中,公路交通基础设施对县以下的零售额的影响程度最大,对批发和零售业零售额的影响程度次之。     

Praktische Erfahrungen mit dem AGB-Gesetz

Zusammenfassung Der Verfasser berichtet über die Erfahrungen der Verbraucherzentrale Baden-Württemberg, Stuttgart, mit der Verbandsklage nach § 13 des Gesetzes zur Regelung des Rechts der Allgemeinen Geschäftsbedingungen bis einschließlich 1979. Er erörtert die Parallelen und Unterschiede zum UWG-Verfahren und gelangt zu dem Ergebnis, daß die Angleichung des Verfahrens nach dem AGB-Gesetz an den UWG-Prozeß vom Gesetzgeber nicht im wünschenswerten Umfang vorgenommen wurde. Dies kann im Einzelfall zu erheblicher Rechtsunsicherheit führen, z. T. auch zu sachlich nicht optimalen Ergebnissen. Trotz dieser Kritik zu einzelnen Punkten hält der Verfasser das Gesetz im ganzen für einen wichtigen Fortschritt zu Gunsten des Verbrauchers. Insbesondere stellt die Verbandsklage in ihrer Ausgestaltung ein besonders wirksames Mittel dar, um die Beachtung der Vorschriften des Gesetzes zu gewährleisten.

---

Practical experiences with the German Act on Standard Contract Terms

The German Act on Standard Contract Terms, in force since April 4, 1977, restricts the use of preformulated contract terms far beyond civil law. The Act enables consumer associations to bring collective action against unfair terms and thus to ensure the implementation of the act.The author describes the experiences of a consumer association, the Verbraucherzentrale Stuttgart, in actively using the new legal instrument. The author explains some details of such legal action which, though in many respects resembling action against unfair trade practices which is permitted to consumer organizations since 1975, also has some peculiarities of its own.The author comments on some legal and factual problems of the collective action. Among other things, he criticizes the intention of the legislator to have the exact wording of the whole unfair term put into the court decision. This will lead to problems in cases where the judgment is pronounced without any argumentation, which is possible in some circumstances of German civil law procedure, since in these cases, it is extremely difficult to find out what it was in the term that was judged unfair.Even though criticizing some details of the legislative regulation the author is of the opinion that collective action is a considerable progress in consumer protection. Such action, actively used by consumer associations, is an effective means of putting the new act into practice and of getting business to use only such general contract conditions which are not unfair in the sense of the law.

---

---

Walter Stillner ist als Rechtsanwalt in D-7000 Stuttgart 1, Seestraße 104, von der Verbraucherzentrale Baden-Württemberg mit der Prozeßführung beauftragt.     

Consumer Protection Law in Ethiopia: The Normative Regime and the Way Forward

The 1960 Civil Code of Ethiopia and other laws have been providing a certain level of protection to consumers until the enactment of laws – in 2010 and 2014 – that expressly deal with consumer protection. This article examines consumer protection in Ethiopia with prime attention to the Trade Competition and Consumer Protection Proclamation No. 813/2013 (enacted in 2014). The social context which prompted the enactment of specific consumer laws in Ethiopia, sources that have influenced Ethiopia’s consumer law regime, rights of consumers, obligations of business persons, regulatory enforcement schemes and some features of consumer protection in digitalized services are highlighted. Moreover, the article briefly deals with the way forward regarding consumer enablement as a path to the effective implementation of consumer rights to choice, safety, information and redress. It is argued that the articulation of specific consumer laws can hardly be implemented unless consumers are adequately empowered to secure their rights and entitlements through effective redress which should include public interest litigation, class action and enhanced civil society engagement.     

Towards a Handbook on European Contract Law and Beyond: The Commission’s 2004 Communication “European Contract Law and the Revision of the <Emphasis Type="Italic">Acquis</Emphasis>: The Way Forward”

The European contract law project has crossed the threshold between an intellectual exercise and concrete policy. The 2004 Communication on the way forward describes the procedure to implement the policy suggested by the 2003 Action Plan, and so it would now be timely to give some thought to the likely impact of the Common Frame of Reference (CFR) on future Community law. It is submitted that the CFR is indispensable for the planned crafting of full harmonisation consumer contract law. This article therefore focuses on the possible uses of the CFR for consumer legislation and attempts to make the case for a recasting of Community law on consumer protection as a first priority in the implementation of the project. Based on policy papers and policy considerations, this article suggests making a test case of the travel and tourism sectors. It also reflects further on the potential virtues of an optional instrument for consumer legislation.     

The Place of Consumer Contract Law Within the Process on European Contract Law

This paper shows the development of European consumer contract law within the whole area of European contract law. It explains in some detail the possible contents of one of the major options for the future – the development of a specific consumer contract law in form of a framework Directive. Such an instrument would combine the common denominators of the consumer contract Directives: the applicable definitions of a consumer and a trader, the right of withdrawal, the pre-contractual information obligations, the burden of proof, the private international law clause, and the nature of consumer law as mandatory law. Furthermore the paper shows how the Commission Communication of July 2001 and the Commission Action Plan of 2003 shape the process of European contract law. Finally, it analyses in particular the treatment of consumer contract law in the Action Plan.     

Product Quality and the Criminal Law

When considering product quality, focus on the civil law as the means of obtaining consumer redress should not blind one to appreciation that the criminal law also has a useful role to play. Even in circumstances in which physical harm to the consumer has not occurred, economic detriment can be sufficient for the quality of a product to be questioned in the context of not only civil but also criminal proceedings. This article uses the example of English law to explore the rationales for regulation of product quality backed by criminal sanctions, and shows how there may be overlaps but also divergences in the scope of coverage of civil and criminal laws.     

Der österreichische Entwurf eines Konsumentenschutzgesetzes

The report gives information about origins, aims, and contents of the Austrian bill for a Consumer Protection Act which has been submitted to the National Council (Nationalrat) of the Austrian Parliament and will be heard in the Justice Committee (Justizausschuß). The bill aims at a far-reaching protection for the consumer in the field of contract law, excluding, however, product liability and certain specific contracts (such as travelling and correspondence courses). The main points of the bill are as follows:

1. The consumer will be protected in instances of doorstep contracts by granting a cooling-off period of one week. Certain clauses in contracts to the detriment of the consumer will be void, for instance, clauses which limit the validity of oral representations, and clauses in standard form contracts which the consumer did not have reason to expect (überraschende Klauseln). The judge will be accorded the right to lower penalties stipulated in contracts. The right of the consumer to get the contract annulled will be strenghtened in cases oflaesio enormis (i.e., where the stipulated price exceeds the true value by more than one half).
2. The consumer will be protected against unfair contents in standard form contracts. The bill foresees two legal means of protection. (a) A general clause to be introduced into the Austrian Civil Code (Art. 879 § 3) will void all stipulations in standard form contracts, which unfairly deprive the consumer of his rights, and which have not freely and reasonably been consented to by the consumer because they were contained in standard forms of the other party or because this party exploited its superiority when putting them into the contract. In addition, the bill voids specific clauses, not only in standard form contracts but also in individual contracts (e.g., exemption clauses with regard to warranties or breach of contract). (b) The bill institutes a collective action which enables certain associations (workers' chambers — Arbeiterkammern, chambers of commerce — Wirtschaftskammern, trade unions, the Association for Consumer Information — der Verein für Konsumenteninformation) to bring action against anybody using illegal standard form contracts.
3. The bill contains provision for forbidding certain unreasonable clauses regarding, e. g., bills of exchange, the use of wage claims as security, and jurisdiction clauses.
4. The bill will incorporate the Instalment Sales Act (Ratengesetz) into the new Consumer Protection Act, thereby extending its sphere of application to most transactions between businessmen and consumers.

     

EC Competition Law After Modernisation: More than Ever in the Interest of Consumers

In this paper it is argued that even though the consumer cannot (anymore) be reduced to a homo oeconomicus, competition law is the cornerstone of consumer law and that the decentralised application of EC competition law since 1 May 2004 (pursuant to Regulation 1/2003) gives new opportunities for an effective application of the EC competition rules to the benefit of consumers. While the EC Treaty (and the future Constitution for Europe) aim to protect consumers in the framework of the internal market programme, as well as on the basis of a genuine consumer protection policy, it is submitted that an effective competition policy remains crucial for consumers in a market economy. Consumer interests are generally diffuse and therefore difficult to protect via legal procedures. Nevertheless a further development of remedies which are already available in Community law (nullity of restrictive agreements, claims for damages, actions for a cease and desist order, and so on) will contribute to an increased application of the competition rules in the interest of consumers.     

Quality Regulation in European Private Law

The EC Directive on certain aspects of the sale of consumer goods and associated guarantees obliges sellers to deliver goods which are in conformity with the contract, and gives rights to the consumer where the goods are not in conformity with the contract. It also contains provisions as to the binding nature and transparency of commercial guarantees. The implementation date for this European private law quality regime was 1 January 2002. This article considers the policies and legal concepts that have influenced and will influence this quality regime, questions associated with the general mode of implementation, and some key features of the regime.     

基于法源的股市制度主成分比较与因子回归分析

本文以50个国家和地区的股市作为研究样本,按照法源分类,对股东权利、债权人权利及宏观制度三类制度指标进行主成分比较、因子得分计算及其与股市发展的回归分析。结果发现:(1)英国法源的国家最为重视对股东权利的保护,德国法源的国家最为重视对债权人权利的保护,斯堪的纳维亚法源国家的宏观制度环境较好。就中国股市制度而言,比较重视股东权利保护,而债权人权利保护和宏观制度环境则相对较差。(2)在影响股市发展的诸多因素中,制度性因素至关重要;与“债权人权利指标”相比,“股东权利指标”和“宏观制度指标”对股市发展的影响则更为显著。     

论日本民法典的基本特点——兼及对中国民法典制定的启示

日本民法典对于日本的民族振兴、经济发展和社会进步有着卓越的贡献。作为亚洲第一部民法典,日本民法典制定以移植摄取、注重实效与兼收并蓄为基本指导思想,融合了西方各国民法典的精华,成功地实现了民事法律制度的本土化与国际性、现代化和现实性、法典化和融合性的共生和谐。因此,加强对日本民法典基本特点的研析,可以为正在制定中的中国民法典提供科学的思路与深邃的启迪。