Transcript Title Slide - unibocconi.it

Drafting a CFR: the aims and
approach of the Expert Group
Hugh Beale
(Universities of Warwick, Oxford &
Amsterdam)
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”
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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:
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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 crossborder 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
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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
Summary and conclusion
• Optional Instrument
– Sales and supply of goods and services
– Cross-border and ?domestic
– B2C: high level of protection
– B2B: aimed at SMES
• Also want to see:
– Improved consumer acquis
• Limited full harmonisation
• To cover contracts outside OI
– A CFR as a toolbox