The Action Plan on European Contract Law: Perspectives for the Future of European Contract Law and EC Consumer Law

The European Commission's Action Plan on European Contract Law is the follow-up to the Communication of July 2001. It reveals the conclusions of the Commission and proposes a mix of regulatory and non-regulatory measures aimed at removing obstacles to the smooth functioning of the internal market and ensuring the uniform application of EC law. These measures are (a) the improvement of the acquis through the elaboration of a common frame reference containing common rules and terminology, (b) promotion of the use of standard terms for cross-border contracts, and (c) further reflection on an optional horizontal instrument in the field. This article will undertake a general discussion of the likely impact of the measures on the future of EC consumer law and European contract law, and treat certain questions relating to the conflict of laws. It is also hoped that the article will acquaint the new reader with some of the (mainly) recent discussions in English and French on the subject matter from different jurisdictions.     

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.     

The Principles of European Contract Law and the Protection of the Weaker Party

The Principles of European Contract Law (PECL) must be seen as a major step forward in the development of a body of European rules and principles which enshrine the common heritage of different national legal orders and cultures. They are meant to define general rules equally applicable to any person independent of his or her status as a professional supplier and/or as a consumer. The leading principles are party autonomy and self-determination, restricted by the notion of good faith. This paper tests whether and to what degree the European Principles manage to deal with consumer protection law as it has developed over the last 20 or 30 years. It is argued that – with some effort – the European Principles can be read so as to leave room for integrating the protection of the weaker party, albeit to a limited extent only. The insufficiencies can be overcome only by merging the acquis communautaire in consumer law with the European Principles.     

The Protection of the Weak Party in a Harmonised European Contract Law: A Synthesis

Protecting the weak party has been one of the cornerstones of the development of contract law over the past century. An enduring intellectual debate sets those who would advocate a less interventionist model against those – including the present author – who remain wedded to the virtues of protection. That debate lies at the core of this Special Issue. The European Union has been and remains at the forefront of the renovation of the law, and it now confronts questions that spill over from its longstanding preoccupation with consumer law into the field of private law more generally.     

Telecommunications in the European internal market

The completion of the European internal market by 1992 is one of the EC Commission’s key objectives. European integration is to be given fresh impetus by removing remaining frontier controls and trade barriers, liberalising public procurement and limiting the number of sectors protected from competition, such as finance, transport and communications. The following article analyses the possible effects of the proposals concerning telecommunications equipment and services outlined in a Green Paper from the Commission.     

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.     

Fundamental Rights and the European Regulation of iConsumer Contracts

This paper addresses the question of how fundamental rights affect European legislation and adjudication on contracts regarding digital information services (iConsumer contracts). Fundamental rights may be seen as representing political choices for the protection of certain values in society, but at the same time, they are enacted rules of the legal system, which may be invoked to enforce the protection of the interests they represent. It is submitted that because of this double-faced nature, they can bring to the fore policy issues in contract legislation and case law. Fundamental rights can thus play a role in evaluating the policy choices that are being made in the review of the acquis communautaire in the field of consumer law. For iConsumer contracts, that means that the rights of consumers, authors, and suppliers of copyright-protected content affect the choice of rule-solutions on the European legislative level. Furthermore, these rights have an impact on the case law of the European Court of Justice in the field of e-commerce. Fundamental rights help define the various rule-solutions the Court can choose from and thus demarcate the law-making capacity of the judiciary.

《合同法》第308条在司法实践中的适用风险

本文从国别立法比较的角度解读《合同法》第308条规定,剖析该条规定在海运实践中因与《海商法》并存的法律选择、托运人作为唯一的权利主体以及变更解除合同行为属性等问题可能产生的法律预测功能丧失或者运作不正常导致的司法风险,提出完善立法、补充司法解释等观点,希望有益于《合同法》第308条适用风险的降低和化解。     

European Merger Control: Do We Need an Efficiency Defence?

The European Commission recently published a Green Paper on the review of the Merger Regulation, which, amongst other things, invites comments on whether the Merger Regulation should be amended to make explicit allowance for an efficiency defence. This paper is a contribution to this debate. After discussing the economic and political reasons that justify the introduction of an efficiency defence, it reviews the legislation and practice in the European Union, the United States and Canada. Finally, it examines the methodological and implementation problems raised by the efficiency defence and suggests a sequential approach as a way of minimizing these difficulties.     

EU Consumer Law Outside the European Union: The Case of Albania

The article examines the emergence of Albanian Consumer Law as an example of the application of the EU consumer acquis beyond the European Union. The argument is that Albanian Consumer Law was established and developed principally as a result of external pressures, whereby as part of the pre-accession process Albania has undertaken an obligation to harmonize its consumer law with EU law. In turn, the weakness of domestic pressures and factors, including a genuine commitment on the part of Albanian policy makers to develop consumer law so as to protect their citizens as consumers, resulted in a fairly slow evolution of consumer law in Albania and the lack of implementation of the initial enactments in practice. However, the empowering of a dedicated Consumer Protection Commission as the main institution in charge of enforcement of consumer law in Albania has led to some enforcement activity and a significant number of consumer protection cases. An analysis of the cases suggests the Commission is using, and upgrading, its powers so as to intervene in a number of different sectors in the economy, including against quite powerful market players.     

Networks to Enforce European Law: The Case of the Consumer Protection Cooperation Network

Central to this paper is the aim to discuss the effectiveness of the Consumer Protection Cooperation Network (also known as ??CPC Network??) for consumer protection in cross-border disputes in the European Union (EU). In doing so, this paper deals with the literature about networks established by grouping the Commission and national authorities to enforce European Law. The examples of the European Competition Network and the CPC Network are interesting because they raise questions with regard to the effectiveness and the accountability of emerging network-based law enforcement. The development of the CPC Network may have relevant implications for other areas of EU law and policy, including the question whether network-based governance could be transposed in other fields of EU Law.     

Unfair Contract Terms Under Greek Law: Case Law Developments

This note examines a decision by the Greek Supreme Court which offers an interpretation of the unfair term provision in consumer protection law. The case concerned a class action by a consumer organization against a commercial bank. The decision makes a breakthrough in two related respects. First, the Court not only interprets the national law in the light of the EU Directive on Unfair Contract Terms, but also adopts rules of interpretation and reasoning that run parallel to the latest European discussion on unfair contract terms. Second, in an unprecedented manner for Greek case law, it declares a large number of contractual clauses to be unfair, hence broadening consumer protection significantly. Most commercial banks in Greece are now under an obligation to modify their pre-formulated contracts in order to comply with the Court's interpretation of the provision on unfair terms in the Consumer Protection Act.     

Consumer policy in Latvia

As part of the legislative programs to facilitate the transition to a market economy, the governments of Eastern European States and the former Soviet Union have begun enacting comprehensive consumer protection acts. These statutes have taken a variety of forms, and frequently have drawn upon the experiences of the West for guidance. The Latvian Consumer Law is a noteworthy example that takes consumer rights seriously. This paper analyzes the strengths and weaknesses of the statute, with particular emphasis on the compatibility of its provisions with EU norms. The Law addresses most of the core issues in contemporary consumer policy — including product and service liability, warranty, unfair terms, information disclosure, enforcement, and the role of consumer organizations — in a manner that could serve well as a model for other economies in transition.

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Zusammenfassung Verbraucherpolitik in Lettland. Die Regierungen der osteuropäischen Staaten und der Staaten der früheren Sowjetunion haben als Teil ihrer gesetzgeberischen Vorhaben zur Erleichterung des übergangs in eine Marktwirtschaft damit begonnen, umfassende Verbraucherschutzgesetze zu erlassen. Solche Gesetze sind in vielfältigen Formen und mithilfe westlicher Erfahrungen entstanden. Das lettische Verbraucherrecht ist ein bemerkenswertes Beispiel und macht Ernst mit den Verbraucherrechten. Der Beitrag untersucht die Stärken und Schwächen des Gesetzes unter dem besonderen Aspekt der Vereinbarkeit seiner Regelungen mit EU-Normen. Das Gesetz berücksichtigt alle wichtigen Bereiche der herrschenden Verbraucherpolitik — dazu gehören Produkt- und Servicehaftung, Garantieleistungen, unlautere Geschäftsbedingungen, Informationsauflagen, Rechtsdurchsetzung und die Rolle von Verbraucherorganisationen — und kann als Modell für andere Volkswirtschaften im übergang zur Marktwirtschaft dienen.

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He served as the working group leader on law reform for the International Baltic Economic Commission in 1991, and as a consultant to the legislative committee that drafted the Consumer Law for the Republic of Latvia in 1992.Law student Terence Slywka provided valuable research assistance during the writing of this article.     

国际企业社会责任与我国劳动者权利保护

本文认为,中国在成为“世界工厂”的同时,劳工问题也日益突出,并被国际社会所关注。目前我国企业在社会责任方面存在的问题,集中表现在侵害劳动者合法权益现象严重,如签订劳动合同的比率很低,劳动者的经济利益得不到保障,劳动条件恶劣、劳动安全问题严重,不支付加班工资,劳动者的生存权受到侵害等。文章提出,为维护劳动者权益,第一,要在全国范围内推行以签订劳动合同为基础的劳动用工登记制度。第二,各级政府和部门要加大执法力度,严厉查处拒不执行最低工资规定的用人单位。第三,劳动保障部门要加强对劳动定额标准的管理,建立和完善日常监察制度。第四,加快社会保障制度建设,抓紧解决进城务工人员参保问题。第五,要加快制订《劳动合同法》、《社会保险法》、《劳动争议处理法》、《就业促进法等法律》,修改完善《劳动法》。     

European Corporate Sustainability Framework for Managing Complexity and Corporate Transformation

The European Corporate Sustainability Framework (ECSF) is a new generation management framework, aimed to meet increased corporate complexity and support corporate transformation towards more sustainable ways of doing business. It is a multi-layer, integral business framework with an analytical, contextual, situational and dynamic dimension.Analytically, the framework is structured according to four focus points – the constitutional, conceptual, behavioural and evaluative perspective – providing integrative designs of complex and dynamic phenomena. The framework includes coherent sets of business philosophies, approaches, concepts and tools that structures corporate realities and generates sequences of steps in order to obtain adequate institutional structures, a road to corporate transformation and higher performance levels.     

对《合同法》总则的再研究

《合同法》总则在合同的定义、合同的效力、无权代理和越权代表、合同的变更和转让以及违约损害赔偿额的计算等问题的规定上均存在瑕疵。这些瑕疵之所以产生,其原因在于或与法理有悖,或与生活相违,或用语不够规范,或逻辑不够严密。消除这些瑕疵时,应当本着遵循法理尊重生活的精神,并兼顾逻辑严密用语规范等要求,以期使《合同法》总则的规定更加科学。     

New Audiovisual and Information Services and the Protection of Children: The European Dimension

This information paper outlines how the interests of minors are dealt with in the European Union's (EU) embryonic policies for new audiovisual and information services, in the context of what has happened – and is currently happening – in broadcasting and telecommunications. It is written from the public interest and consumer perspective rather than that of the industries involved, with a particular concern that the major contribution that new, technology-based services can make to the mental and moral development of children should not be prejudiced by harmful and damaging content. The author also addresses the virtually complete neglect of the need to protect children from economic exploitation through the new technologies.In general, the momentum of EU policy to ensure free movement of services, combined with the practical problems of developing an effective international regulatory structure for the new trans-border technologies, suggests that there will be considerable technological and commercial pressures to relax existing provisions which aim to protect minors, while there will be major obstacles in the way of developing new legislative or regulatory measures. This is a pessimistic scenario for those concerned with the interests of children. Nevertheless, there are some opportunities, which are outlined in the final section of the paper.     

Business ethics and commercial morality: Report of the Royal Commission into Commercial Activities

This section is focused on some areas of concern which were identified in The Report of the Royal Commission into Commercial Activities of Government and Other Matters (1990–1992). In the Report a number of situations were examined in which some individuals acted without recourse to any ethical guidelines. Most of the people mentioned in the Report held responsible positions in either Government or the private sector, and all were very well known in the community. The Report of the Royal Commission made a number of findings of serious impropriety on the part of several individuals, although there was comparatively little evidence of illegal or corrupt conduct. This section shows what happened to a governmental system in an Australian state when a number of Ministers and their advisors placed their personal or party advantage over their constitutional obligation to act in the community's interests.Those who cannot remember the past are condemned to repeat it.George Santayana (1863–1952)Michael Small is a Senior L1ecturer in the Curtin Business School, Western Australia. Earlier positions have included appointments with the Commonwealth Attorney-General's Department and more recently as Senior Lecturer in the Australian Police Staff College.     

Consumer law and legal theory: Reflections of a common lawyer

The author analyses some new theories on consumer law from the viewpoint of a lawyer trained in common law and having been involved in Australian legal policy. He voices criticisms against consumer law theory which takes contract law as its starting point; without a precise definition of the consumer it cannot specify its scope of application. The author advocates a more interventionist approach which makes clear that the state has responsibility for the well-being of consumers in cases of power imbalance even if the approach is characterized as paternalistic.

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Verbraucherrecht und Rechtstheorie — Überlegungen eines Praktikers

Zusammenfassung Der Verfasser untersucht neue Theorien zum Verbraucherrecht vom Standpunkt eines im common law trainierten und in der Australischen Rechtspolitik tätigen Praktikers. Er plädiert für ein pragmatisches Vorgehen. Er kritisiert Verbraucherrechtstheorien, die vom Vertrags- und Wettbewerbsrecht ausgehen, weil sie den Begriff des Verbrauchers nicht erfassen, ohne den aber der Anwendungsbereich von Schutzvorschriften nicht festgeschrieben werden kann. Trotz aller Paternalismuskritik zieht er ein Bekenntnis zur staatlichen Verantwortlichkeit für die Verbraucherwohlfahrt vor, weil sonst das Problem ungleicher Machtverteilung nicht gelöst werden kann.

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John Goldring is Foundation Dean and Professor, Faculty of Law, University of Wollongong, N.S.W., Australia, and a part-time member of the Australian Law Reform Commission.     

New Tools to Foster Corporate Socially Responsible Behavior

According to the Green Paper presented by the European Commission in July 2001, corporate social responsibility (CSR) is “a concept whereby companies integrate social and environmental concerns in their business operations and in their interaction with their stakeholders on a voluntary basis” (Commission of the European Communities, 2001b, p. 6). On this basis, in 2002, the Italian Government, and especially the Italian Ministry of Welfare, launched an initiative called CSR-SC (social commitment) in order to foster the proactive social role of Italian enterprises, with great attention on SME involvement. The technical partner of the Italian Ministry of Welfare for this initiative is Bocconi University. The goal of this contribution is to present the main results of CSR–SC research project developed by Bocconi University. The paper provides a detailed picture of the general scheme designed to carry out the research project and a review of the different methodologies used to support the solutions proposed.