November 30, 2011

The Future of Europe – Week 9

My last blog entry shall give a summary of the crucial insights I gained in this module and give an outlook as a consequence of my thoughts concerning our subject, the European Law. Closing the circle, regarding to my first two blog entries I may say that the history of European Law has a big impact on the possibilities of a further development of the European Law. Only when we understand, that so far there has never been such as a common European Law, we can value the gravity of this task. As I have shown in my second blog entry there are certainly other ways to tackle the lack of legal harmonisation, but a Common Code should remain our destination. In my opinion it is a question of faith, if we keep trying to realise an idealistic aim or if we acknowledge that in the near future this aim may not be realised. The "optional instrument" certainly shows the motivation to achieve at some point a total legal harmonisation in Europe. I would suggest everyone to think about a legal harmonisation in Europe not only in terms of a technical question of commerce, but rather also in terms of global politics. How do we want to arrange the future of Europe in a world of uprising super-powers as China or India. Compared to the future leading powers in the world we will be a dwarf between giants. At the beginning of this century we have been 11 per cent of the world's population. In the middle of this century we will compose 7 per cent and at the end of it we will be 5 per cent of. If we disintegrate more and more into single units we won't be even that. That is why I think we should be careful with all our EU criticism, especially as I notice it in the British media I don't think that this is the most prudent way to act towards a prosperous future. However a European Law and therefore a European Common Code can be a strong token of unity and power and at the same time enforce our economy in terms of internal as well as in terms of external trade. We may be in the future a dwarf but I think we should act like a clever one. In the global competition we can be David, let the others be Goliath...


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November 26, 2011

The Kraken


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November 24, 2011

Culpa in contrahendo – Week 8

The culpa in contrahendo seems to be a unique invention in the landscape of European legal systems. Was it a stroke of genius or just a needed stopgap? The breech of precontractual obligations is in the French and the English Legal system subscribed to the Law of Tort, as well as the Rom II Regulation does it in Art. 12.

The Munich Commentary of the BGB speaks about the c.i.c. as a form of liability on reliance of its own kind, which is situated between the liability of the Law of Contract and the Law of Tort.

Rudolf von Jhering who is known to be the actual founder of the principle of culpa in contrahendo did not have in mind the cases which are ruled today by this principle. He rather thought of applying the c.i.c. to situations of the falsus procurator or the situation of a seller without a existing item to sell.

However the Courts had been willing to adopt his principle to fill the gap which was left by the German Tort Law falling short in protecting the parties in precontractual obligations.

Today the c.i.c. broadens its application further and further. Only the guideline of protection of the party who relied on a possible contract cannot longer explain the scope of cases which are ruled by this principle. The protection of consumer, the protection of the economical weaker party and the protection of the investor seem to rule more and more the c.i.c..

The establishment of a legal institution to a place in a system to which it does not belong causes incoherence. The lack of coherence seems to cause a loss of guidelines. The c.i.c. has become the kraken of the BGB. It reaches for more and more territory to rule.

The German BGB, which is known for its strict and straight principles has in this point betrayed its own order. A system which is based on rationality and its own proper order should obey its own principles to avoid the decline of itself!

November 16, 2011



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Recent developments in Consumer Law – Week 7

While preparing my presentation about the notion of Consumer for our European Contract Law module, I came across really interesting developments in European Consumer Law. The Council has accepted a proposal for a new Directive concerning Consumer Law: PE CONS 26/11. The new Directive unifies 4 older Directives regarding the protection of the consumer, namely:

-Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises

-Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

-Directive 97/7/EC on the protection of consumers in respect of distance contracts

-Directive 99/44/EC on Sale of Consumer Goods and Associated Guarantees

These Directives will be organised in a horizontal order as one new Directive.

Although there has been the possibility to adopt a new notion of consumer the new Directive sticks to the old narrow approach as defined in the Directive 93/13/EEC. But the European Parliament has proposed apparently in its version of the Directive of the 23.4.2011 to adopt a new broader notion of consumer.

This movement is now considered in the 17th preparatory note of the PE CONS 24/11. Also the DCFR tried to introduce in its article Art. I-1:105 I a broader approach to the definition of consumer.

However comparing the different movements within the European law and regarding the different notions of the Member States I wonder why the EU does not introduce a common binding notion of consumer with a regulation.

For international contracts the consumer is always protected throught the Directives. But who knows exactly when one is protected in international sales and when in national business. The people clearly have to be confused.

In France for example even a legal person can be considered as a consumer as in Germany § 13 BGB speaks about a natural person.

At the moment this area does not seem to be perfectly harmonised. Another European legal issue to tackle!

November 01, 2011

The optional instrument – Week 5

Writing about web page

On October 11th, 2011 the European Comission proposed a 28th body of rules for cross-border contracts. The idea of a European Common Civil Code may be illusory, but the optional instrument, proposed last month, might be a important step to a common Code. Especially the smaller companies shall be motivated to involve themselves in the intra-european market. The optional instrument shall simplify business for seller and consumer. One code for all. Everybody knows its content. Everybody will be able to read it in his own language. All this seems to be very reasonable and easy. But is it really that simple?

No, certainly not! Although this approach proposes a common law for contracts, the problem of different property laws is still remaining. One of the main problems of the harmonisation of European Civil Law seems to be left aside. If a French seller contracts with a German consumer, is the transfer of property ruled by the German abstraction principle or not? If one party claims revocation of the contract, the French and the German law would come to a different answer to the question to whom the property of the sold item belongs.

A comprehensive Common Civil Code is still going to be a mammoth task. As shown in my first blog, it would be even a novelty. However the European Union shows effort to tackle the lack of harmonisation. We should not discourage a novice in his first attempts, as we may seem to be one. We shall rather motivate us to carry on: Let's keep trying! We as Europeans, can certainly do better!

October 25, 2011

Rollover Contract – Week 4

The European Union has so far adopted several Directives concerning the protection of the consumer. Regarding the, so called 'Rollover Contracts', the Directive 93/13 EEC is still decisive. At that time it was based on the EU's competence for the free movement of goods in the EU. It was always claimed that a lack of harmonisation in the field of consumer protection could impede the free movement of goods, because the supplier would have the uncertainty, which standard of protection would be applied according to the different member states. But as the Directions in this area are always adopted with a 'minimum harmonisation' the outcome, or rather the transpositions can be different from state to state. The minimum harmonisation allows every state to go beyond the imposed standard of protection, so the prescribed protection of the Directive is the minimum to transpose. As the Directive 93/13 EEC only imposes that the period of notice must not be improperly long, the German transposition forbids contracts in a B2C-reation with a duration longer than 2 years. In other member states a similar transpostion to the German does not exist. From this point of view the grounds to adopt the Consumer-Directives on the competence of the free movement of goods seems quite dubious. What is here the contribution to the free movement of goods? The difference in the level of protections remains. Either the grounds for the Consumer-Directive or the kind of harmonisation should be revised. At the moment this practice does not seem to be coherent.

October 18, 2011

European lawyers – Week 3


©Morten Morland

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As I focused in my first blog entry, the history of European Law is from a tremendous importance when we talk about developments of it in the future. Further research and reading brought me to the conclusion that a Common Civil Code may not be a feasible way towards a harmonisation of this area. Today I rather want to stress the academic tendency to form what they call "European lawyers", lawyers who can cope with the lack of harmonisation. As we feel privileged to take part in our ICP-program the Humboldt University, King's College London and the University Paris II have recently started a common degree for the "European Lawyer". Academia answers the problems, which aren't resolved by politics! Centuries ago, the University of Florence has been a European centre of Law studies, awarding degrees to scholars who came from all over Europe to study there and then went back to their native countries to apply the "European common principles" of law regarding the ius commune. The new programs as ICP or the Humboldt European Law School seem to have the same aim. It is certainly a good approach! But can't we expect more from a globalized world and especially from a "Europe without borders"? I think, yes. Academia has certainly merited our support and is on a good way. But in my view, now it's up to politics to answer!

October 16, 2011

First entry – Week 2

Having a look on the development of law in Europe impresses upon us a historical reflection of this topic. From the beginning of a 'European common law' in the form of the 'ius commune' until nowadays with the law of the European Union, this idea has come a long way. Particularly interesting for me was one expression in the first week's reading: 'Looking back from the future, there may be a generation which will see our time just as a little interruption in the tradition of a European common law.' Will it be like this? I'm not quite convinced yet. The crucial question may be how we define our tradition of a 'common law'. Another quote in the first week's reading was: 'We may have had a common legal tradition with the ius commune but it hasn't been a common code'. If this would be our tradition which may be readopted in the future, is the idea of a European Common Civil Code perhaps just illusory? If Europe hadn't had a common code in times when we had a common work language -Latin- is it realistic to establish a common code in times of the babel of languages in Brussels? Perhaps we should more likely pursuit to revisit our common 'legal culture'. The CFR and the DCFR have so far stressed the common legal principles in European law systems. Should we tune in to a Directive, which imposes to implement common legal principles? Or, should we go after a unified legal education and training all over Europe? At the moment, and in my opinion also in the future cultural differences in Europe seem to impede a common civil law codification. But we could certainly bethink ourselves of our common legal tradition. This should be a step in the right direction!

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