Also available as
eBook.
Recently, following work supported by the European Commission, the Outline
Edition of the Draft Common Frame of Reference (DCFR) concerning European
private law was published. However, the Commission’s project has been
seriously challenged, right down to its basic perception—that obstacles and
disincentives to cross-border transactions caused by excessive national
divergence in contract law must be overcome. In particular, the Social Justice
Study Group law founded in 2003 has fore fronted critical perspectives based
on normative policy. The group focuses on the ‘democratic deficit’ that
characterizes the Commission’s approach to European private law.
This collection of essays reflects both the diversity of the group’s work and
the common thread that runs through it. The core claim here is that the DCFR,
despite the Commission’s characterization of its proposals as purely
technical, cannot escape politics. The intent is to critically identify and
evaluate the model of social justice underlying the DCFR. Although each essay
stresses the author’s particular political and cultural views on the topic,
the demand for an involvement of democratic institutions and civil society in
the construction of a European private law is common to all.
Among the critical issues raised are the following:
-
party autonomy versus solidarity;
-
the undermining of the welfare state’s regulatory framework;
-
the use of the competition mechanism as an instrument of State intervention;
-
commutative justice versus distributive justice;
-
contract law and social market economy;
-
how maximum harmonization reduces consumer protection;
-
harmonization as an alibi for reducing a level of protection previously
guaranteed;
-
the marginalization of the European Parliament;
-
the absence of general enterprise liability in the DCFR;
-
the importance of weaker-party-friendly orientation in contract law;
-
the implied threat of an artificial European civil society made of producers
and consumers; and
-
the lack of public enforcement in the removal of unfair terms in consumer
contracts.
All the authors are committed to the development of a European identity over
the development of the internal market, and to that extent the book may be
controversial. As Community initiatives on European private law continue to
multiply, this important book takes a significant step toward understanding
the participatory procedures that must be taken to protect the multicultural
and multilingual society to which European private law is applied, and to
clarify in advance the model of social justice on which to build a European
contract law.
List of Contributors, Preface , List of Abbreviations ,
Part One The Shaping of a European Private
Law
Chapter 1 An Optional
Instrument for Consumer Contracts in the EU: Conflict of Laws and Conflict of
Policies Aurelia Colombi Ciacchi Chapter 2 Grand European Code
Napoléon or Concise Uniform Contract Law? Defining the Scope of a Common Frame
of Reference Stefan Grundmann
Chapter 3 The DCFR: A
Technical or Political Toolbox? Ruth Sefton-Green
Chapter 4
Some Like It Soft: Soft Law and Hard Law in the Shaping of European Contract
Law Alessandro Somma Part Two Freedom of
Contract and Social Justice
Chapter
5 Party Autonomy and Freedom of Contract Today Guido Alpa
Chapter 6 The CFR and Social Justice Martijn Hesselink
Chapter 7 The DCFR, Public Policy, Mandatory
Rules, and the Welfare State Jacobien W. Rutgers
Part Three Consumer Protection
Chapter 8 Much Ado
About (Almost) Nothing: The Integration of the So-Called ‘Consumer Acquis’ in
the Draft Common Frame of Reference Brigitta Lurger
Chapter 9
Unfair Terms and Unfairness Test in Contracts between Businesses and
Consumers Marisa Meli Chapter 10
‘Technical Harmonization’ versus Substantive Differences: Termination and
Withdrawal in the Draft Common Frame of Reference Peter Rott
Part Four Other Specific Issues
Chapter 11 Non-contractual Liability
Arising Out of Damage Caused to Another: The Making of a Hybrid Gert
Brüggemeier Chapter 12 On the Economics of Good
Faith Acquisition Protection in the DCFR Arthur F. Salomons ,