| European Contract Law only for Transborder Shopping? Martijn Hesselink from the social justice group criticises the latest move of the Commission to build a contract law solely on the acquis in EU-consumer law. |
MUSIC TO OUR HEARTS?
Human Beings or Consumers this is the question Professor Hesslink from Amsterdam poses the Commission after its decision to reduce the European Contract Law approach to consumer law. From an EuSoCo perspective the critique that human beings have much more contractual interests and relations than it is mirrored in the scattered rules of EU-Directives on consumer sales law, credit and tourism is well founded. But it is discussable whether the previous alternative to include the Principles of European Contract Law from the Lando Commission or the Gandolfi Draft using the Unidroit Principles and others were “music to our ears”. Labour and consumer credit lawyers have always felt that the whole development had been initiated solely to facilitate international commercial transactions and not to shape the situation of citizens in every country.
The big loophole in the ongoing discussion is still the absence of long term social contracts which in housing, labour and consumption play the eminent role in contracts and have somehow a quite different underlying regulatory philosophy than the informational and free will approach of spot contracts persisting in the Acquis and Principles-Movement.
THE ARTICLE IN THE ECONOMIST - EXERPTS
“The Commission’s 2003 action plan on European contract law included the announcement of a ‘Common Frame of Reference’ (CFR), a set of principles for revising the contract law acquis and for drafting an – optional – code of contract law.
This was music to the ears of many stakeholders and other actors in the European institutions. After 15 years of narrowly focusing on consumer protection, it marked a radical shift to general rules of contract law, applying both to consumer (B2C) and commercial (B2B) contracts.
Civil law traditionally addresses human beings as ‘persons’, so that contract law is naturally a matter of justice in the fullest possible sense. Thus the difference at stake is between treating people as consumers who may be protected when the internal market fails, or as individual citizens with fundamental rights.
In its first annual report, after only one year’s work preparing the CFR, the Commission announced the “prioritisation” of the revision of the consumer contract acquis. There was no further word of any code.
This U-turn is completely in line with this summer’s much-vaunted ‘Citizens’ Agenda’, which is a complete misnomer. We are not to be treated as citizens at all, but merely as cross-border shoppers interested only in energy prices and GSM roaming charges. The Commission has taken to identifying European citizenship with consumer protection tout court. At worst it is a profound political and moral error. The Commission should be giving priority to justice and a truly European notion of contractual justice for a genuine area of civil law.
The sharp distinction made by the Commission between B2C and B2B contracts is simplistic. Businesses are often in a vulnerable position very similar to that of consumers.
The Barroso Commission is not the only one to blame. The existing treaties do not actually provide a legal basis for such a justice-oriented approach. It is precisely here that there is a chance of re-connecting ‘Europe’ with the people who live in it. Renegotiation of the constitution should imperatively insert a legal basis for treating contract law.
The European Parliament’s recent call for a “binding instrument on general contract law issues going beyond the consumer protection field”, courageous as it is, is based on legal thin air. This evidently needs to be changed. Otherwise, the risk is that the – already fast-fading – vision of a coherent, socially just Union will slip out of view indefinitely.” (UR)
---------------------------------------
ARE WE HUMAN BEINGS OR MERE CONSUMERS?
(By Martijn Hesselink in European Voice Vol 12 Number 38)
After the French and Dutch rejections of the EU constitution, the European Commission should have worked out that getting Europeans to love Europe might imply something more than insisting on the wonders of the Lisbon Agenda.
A glance into the nitty-gritty of how the EU actually relates to its citizens shows there is a long way to go in constructing a human Europe; for the moment things are even going into reverse.
The Commission's 2003 action plan on European contract law included the announcement of a 'Common Frame of Reference' (CFR), a set of principles for revising the contract law acquis and for drafting an - optional - code of contract law.
This was music to the ears of many stakeholders and other actors in the European institutions. After 15 years of narrowly focusing on
consumer protection, it marked a radical shift to general rules of
contract law, applying both to consumer (B2C) and commercial (B2B)
contracts.
Civil law traditionally addresses human beings as 'persons', so that
contract law is naturally a matter of justice in the fullest possible
sense. Thus the difference at stake is between treating people as
consumers who may be protected when the internal market fails, or as
individual citizens with fundamental rights.
In its first annual report, after only one year's work preparing the
CFR, the Commission announced the "prioritisation" of the revision of
the consumer contract acquis. There was no further word of any code.
This U-turn is completely in line with this summer's much-vaunted
'Citizens' Agenda', which is a complete misnomer. We are not to be
treated as citizens at all, but merely as cross-border shoppers
interested only in energy prices and GSM roaming charges.
The Commission has taken to identifying European citizenship with
consumer protection tout court. At worst it is a profound political
and moral error. The Commission should be giving priority to justice
and a truly European notion of contractual justice for a genuine area
of civil law.
The sharp distinction made by the Commission between B2C and B2B
contracts is simplistic. Businesses are often in a vulnerable position
very similar to that of consumers.
The Barroso Commission is not the only one to blame. The existing
treaties do not actually provide a legal basis for such a
justice-oriented approach. It is precisely here that there is a chance
of re-connecting 'Europe' with the people who live in it.
Renegotiation of the constitution should imperatively insert a legal
basis for treating contract law.
The European Parliament's recent call for a "binding instrument on
general contract law issues going beyond the consumer protection
field", courageous as it is, is based on legal thin air.
This evidently needs to be changed. Otherwise, the risk is that the -
already fast-fading - vision of a coherent, socially just Union will
slip out of view indefinitely. |
| ID: |
38768 |
| Author(s): |
iff |
| Publication date: |
16/10/06 |
|
|
|
|
| | |
Created: 20/10/06. Last changed: 24/10/06.
Information concerning property and copy right of the content will be given by the Institut For Financial Services (IFF) on demand. A lack of explicit information on this web site does not imply any right for free usage of any content. |
