Hugh Beale
(Universities of Warwick, Oxford & Amsterdam) Drafting a CFR: the aims and approach of the Expert Group
Hugh Beale
(Universities of Warwick, Oxford & Amsterdam) Drafting a CFR: the aims and approach of the Expert Group
The DCFR Study Group
Thorough comparative study of MS’s laws
Common principles
Functional approach, strip away differences in terminology and concepts
“Best solutions”
Acquis Group
Existing Acquis
Some improvements
Largely, existing acquis
Coverage of DCFR: obligations Contracts
General part (Books I-III)
Specific contracts (Book IV: sales, leasing, services…)
Non-contractual liability
Unjust enrichment
Benevolent intervention
Liability for damage (tort/delict)
Coverage of the DCFR: property Proprietary questions
Acquisition and loss of ownership of goods
Proprietary security rights in movable assets
Trusts
“Academic CFR” Action Plan:
Toolbox for legislators
Principles, definitions and model rules
Use in revision of consumer directives
Basis for possible Optional Instrument
Especially for cross-border contracts
Instead of national law
B2C and/or B2B
“Political CFR” likely to be narrower
Consumer Rights Directive Prioritisation of consumer work
Proposed CRD (Oct 2008)
“Horizontal”
Distance selling
Doorstep
Unfair terms
Consumer sales
Some extension: e.g. damages in sales
Combined, more consistency
“Full harmonisation” Rome I art 6
C entitled to protection of own law
B must be prepared to cope with 28+ laws
FH: MS cannot give additional protection
In some MSs, consumer protection reduced
But only “within scope” of CRD
Too narrow or too broad
Uncertain
pCRD now “targeted full harmonisation”
Optional Instrument (Blue Button)
The Green Paper Green Paper 1 July 2010: options
Do nothing
Tool box (various forms)
Recommendation to MS
Optional Instrument
Directive on European Contract Law
European Civil Code
Expert Group Commission Decision 26 April 2010
“As if” basis
Optional Instrument
Toolbox?
“Workable Optional Instrument”
B2B and B2C
Sales only but expandable
General part: suitable for any contract
The OI and PIL Commission decision, not yet taken
Current thinking:
Substantive law approach
Regulation introducing into law of each MS
Cf CISG but “opt-in”
Opt-in = opt-out of CISG
Rome I art 6 by-passed
? Exclude use of art 9 for consumer law
B2C sales Sales provisions
General contract law
Acquis minimum requirements
pCRD (sales, distance & off-premises selling)
Consumer Credit Directive (instalment sales)
Acquis full harmonisation: copy in
“High level of consumer protection” In MS where protection at minimum level, no loss if choose Blue Button
In MS where high protection, will reduce protection
B may offer choice but probably Blue Button or nothing
To make attractive, high enough level that C confident that reasonably protected
Higher than minimum harmonisation requirements
“Consumer sub-group” of EG Where does DCFR go beyond minimum?
Where do national laws go beyond minimum on matters within scope?
E.g. blacklisted terms
Where do national laws have rules outside scope of acquis go beyond DCFR?
E.g. lesion, Nordic Contracts Act s 36
Which should we include in the CFR?
B2B: who might use it? Non-national (“neutral”), in many languages
Single “operating system” / platform for businesses across the EU
Larger firms:
Sell c/b via subsidiaries
Expertise
Higher value contracts
Often riskier transactions
Should aim at SMEs
What do SMEs want?
Suspect:
More risk averse
Would like protection if
Non-disclosure: Unknown unknowns
Surprising or harsh general conditions
Behaviour inconsistent with GF and fair dealing
Harmonise protection for for SMEs?
Problems of definition
Self-selection: Option to choose law
An Optional Instrument for SMEs
B2B contracts
Sales first, then supply of goods and of services
? Targetted at SMEs
SME x SME and SME x large business
Way of reducing cost and risk of cross-border exchanges
“Insurance”
At a premium
Why would other party agree?
If SMEs prepared to pay “price”, other businesses will find it worth offering the OI
If other refuses, SMEs know riskier
Not all SMEs will want this “insurance”
They will not opt for the OI
An OI for domestic use?
Need not be limited to cross-border contracts
If SMEs prefer the OI for domestic contracts, why not allow its use?
OI compared to DCFR Coverage: “re-contractualisation”
Simpler style
Closer to PECL?
Many articles omitted
“150 articles”
Some from general contract law
Probably not
Agency
Assignment and transfer of contract
Conditional contracts
Plurality of parties
Prescription
Set-off
A dialogue
5-way dialogue
Expert Group
Commission’s CFR Team
Commission’s CRD Team
Parliament
Stakeholders
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