All entries for October 2011

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

Link to the image

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!

October 2011

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