COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL - A MORE COHERENT EUROPEAN CONTRACT LAW - AN ACTION PLAN

A MORE COHERENT EUROPEAN CONTRACT LAW - AN ACTION PLAN

Executive summary

The Commission Communication on European contract law of July 2001 launched a process of consultation and discussion about the way in which problems resulting from divergences between national contract laws in the EU should be dealt with at the European level. The present Action Plan maintains the consultative character of this process and presents the Commission's conclusions. It confirms the outcome of that process, i.e. that there is no need to abandon the current sector-specific approach. It also summarises the problems identified during the consultation process, which concern the need for uniform application of EC contract law as well as the smooth functioning of the internal market.

This Action Plan suggests a mix of non-regulatory and regulatory measures in order to solve those problems. In addition to appropriate sector-specific interventions, this includes measures :

- to increase the coherence of the EC acquis in the area of contract law,

- to promote the elaboration of EU-wide general contract terms, and

- to examine further whether problems in the European contract law area may require non-sector-specific solutions such as an optional instrument.

In addition to continuing to put forward sector-specific proposals where these are required, the Commission will seek to increase, where necessary and possible, coherence between instruments, which are part of the EC contract law acquis, both in their drafting and in their implementation and application. Proposals will, where appropriate, take into account a common frame of reference, which the Commission intends to elaborate via research and with the help of all interested parties. This common frame of reference should provide for best solutions in terms of common terminology and rules, i.e. the definition of fundamental concepts and abstract terms like "contract" or "damage" and of the rules that apply for example in the case of non-performance of contracts. A review of the current European contract law acquis could remedy identified inconsistencies, increase the quality of drafting, simplify and clarify existing provisions, adapt existing legislation to economic and commercial developments which were not foreseen at the time of adoption and fill gaps in EC legislation which have led to problems in its application. The second objective of the common frame of reference is to form the basis for further reflection on an optional instrument in the area of European contract law.

In order to promote the elaboration by interested parties of EU-wide general contract terms, the Commission intends to facilitate the exchange of information on existing and planned initiatives both at a European level and within the Member States. Furthermore, the Commission intends to publish guidelines, which will clarify to interested parties the limits which apply.

Finally, the Commission expects comments as to whether some problems may require non-sector-specific solutions, such as an optional instrument in the area of European contract law. The Commission intends to launch a reflection on the opportuneness, the possible legal form, the contents and the legal basis for possible solutions.

TABLE OF CONTENTS

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL - A MORE COHERENT EUROPEAN CONTRACT LAW - AN ACTION PLAN

1. Introduction

2. Description of the present process

3. Identified problem areas

3.1. Uniform application of Community law

3.2. Implications for the internal market

4. Suggested approach: a mix of non-regulatory and regulatory measures

4.1. To improve the quality of the EC acquis in the area of contract law

4.2. To promote the elaboration of EU - wide standard contract terms

4.3. Further reflection on the opportuneness of non-sector specific measures such as an optional instrument in the area of European contract law

5. Conclusion

ANNEX

1. Introduction

1. In July 2001, the Commission published its Communication on European Contract Law [1]. The Communication was the first consultation document issued by the European Commission that envisaged a more fundamental discussion about the way in which problems resulting from divergences between contract laws in the EU should be dealt with at European level. Its follow-up is the subject of this Action Plan.

[1] Communication from the Commission to the Council and the European Parliament on European Contract Law, COM (2001) 398 final, 11.7.2001 (OJ C 255, 13.9.2001, p. 1).

2. The Communication launched a process of consultation and discussion. The Commission is aware of its long-term nature and intends to maintain its consultative character. Only through continuous involvement of all Community institutions and all stakeholders can it be ensured that the final outcome of this process will meet the practical needs of all economic operators involved and finally be accepted by all concerned. For this reason, the Commission has decided to submit the present Action Plan as a basis for further consultation.

3. In particular, this Action Plan seeks to obtain feedback on a suggested mix of non-regulatory and regulatory measures, i.e. to increase coherence of the EC acquis in the area of contract law, to promote the elaboration of EU-wide standard contract terms and to examine whether non-sector specific measures such as an optional instrument may be required to solve problems in the area of European contract law. As such, it constitutes a further step in the ongoing process of discussion on the developments in European contract law.

2. Description of the present process

4. The Communication on European contract law launched a consultation procedure that yielded numerous contributions from governments and stakeholders, including businesses, legal practitioners, academics and consumer organisations. The flow of incoming mail has continued since the process was started. Up to now, the Commission has received 181 responses to the Communication.

5. The Communication was intended to broaden the debate on European contract law and to allow the Commission to gather information on the need for more far reaching EC action in the area of contract law. The Commission sought information as to whether problems resulted from divergences in contract law across the Member States. In particular, the Communication asked whether the proper functioning of the internal market might be hindered by problems in relation to the conclusion, interpretation and application of cross-border contracts. It was also interested in whether different national contract laws discouraged or increased the costs of cross-border transactions and sought views on whether the existing approach of sectoral harmonisation of contract law could lead to possible inconsistencies at EC level, or to problems of non-uniform implementation of EC law and application of national transposition measures.

6. The Commission was also interested in receiving views on what form solutions should take. In order to assist in defining possible solutions, the Communication included a non-exhaustive list of possible options, set out in Options I to IV.

7. None of the contributions indicated that the sectoral approach as such leads to problems or that it should be abandoned. All contributors nevertheless reacted to the various options. Only a small minority favoured Option I which suggested leaving the solution of identified problems to the market. There was considerable support for Option II, i.e. to develop - via joint research - common principles of European contract law. An overwhelming majority supported Option III, which proposed the improvement of existing EC law in the area of contract law. A majority was, at least at this stage, against Option IV, which aimed at a new instrument on European contract law. However, an important number of contributors suggested that further thought might be given to this in the light of future developments in pursuance of Options II and III.

8. The Commission has put strong emphasis on transparency at all stages of the consultation procedure. With the consent of the authors, it published their contributions on the Commission's website (Responses to the Commission's Communication on European contract law [2]). The Internet was also used as a forum to publish a summary that analysed these responses (Summary of the responses to the Communication on European Contract Law [3]). This summary attracted a lot of interest [4] and an updated version is annexed to this Action Plan. This interest together with the abundance of scholarly publications are evidence that the ideas expressed in the Communication fell on fertile ground and provide the Commission with a mandate to pursue its work in this field. The outcome of this consultation provides a basis for this Action Plan.

[2] http://europa.eu.int/comm/consumers/ policy/developments/contract_law/index_en.html

[3] See previous footnote.

[4] According to the statistics, the press release "Feedback on Commission's European Contract Law initiative now published" (IP/02/496, 3.4.2002) was in 3rd place out of all April 2002 Commission press releases counting the hits on the EUROPA homepage.

9. The European Parliament adopted the "Resolution on the approximation of the civil and commercial law of the Member States" [5] on 15 November 2001. The Resolution, addressed to the Commission, requests a detailed action plan with short-term, medium-term and long-term measures within a fixed timetable.

[5] COM (2001) 398 final, C5-0471/2001 - 2001/2187(COS), O.J C140E, 13.6.2002, p. 538; see also : www.europarl.eu.int/plenary/default_en.htm

10. The Council adopted a Report on the need to approximate Member States' legislation in civil matters [6] on 16 November 2001 where, in particular, it considered it necessary to ask the Commission to submit, as a follow-up to the consultation exercise, any appropriate observations and recommendations, if necessary in the form of a Green or White Paper, before the end of 2002.

[6] http://register.consilium.eu.int/pdf/en/ 01/st12/12735en1.pdf

11. In its opinion adopted on 17 July 2002 [7], the European Economic and Social Committee emphasised the need to look for solutions in this area on a global scale. However, as long as such solutions were not possible, it considered preferable the creation of a uniform, general European contract law, for example, by means of a regulation. This regulation could, in the medium-term, be chosen by the parties (opt-in solution) and, in the long-term, become a common instrument, which the parties could still waive if they wished to apply a specific national law (opt-out solution).

[7] Opinion of the Economic and Social Committee on the Communication to the Council and the European Parliament on European contract law, ECOSOC INT/117 European Contract Law, OJ C 241, 7.10.2002, p. 1.

12. The EU has set itself the objective of developing an area of freedom, security and justice, for example by initiatives in the field of judicial co-operation in civil matters. The suggested measures described in this Action Plan insert themselves inter alia within the same objective. In particular, they run in parallel with the Green Paper on the conversion of the Rome Convention of 1980 [8] on the law applicable to contractual obligations into a Community instrument and its modernisation [9].

[8] Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980 (80/934/EEC; OJ L 266, 9.10.1980, p. 1; consolidated version: OJ C 27, 26.1.1998, p. 34).

[9] COM (2002) 654 final.

13. This Green Paper and the present Action Plan complement each other. The rules of private international law included in the Rome Convention or any potential future Community instrument are of considerable importance as they determine the applicable law. In particular, they are closely related to one measure suggested in this Action Plan, i.e. to examine whether non-sector-specific measures such as an optional instrument may be required and feasible. If such instruments were to be implemented, they could be expected to contain substantive law rules for certain contracts. The role of private international law rules remains of great importance to the extent that they will determine the application of such instruments if chosen as the law governing the contract.

3. Identified problem areas

14. Many of the contributions to the consultation launched by the Commission Communication on European contract law point to concrete and practical problems. Others observe, in a more general manner, that divergences between national contract laws do indeed create problems both for the uniform application of EC law and for the smooth functioning of the internal market. Inconsistency within EC legislation itself was also criticised by many contributors, some of them giving concrete examples. However, none of the contributions indicated that the sectoral approach as such leads to problems or that it should be abandoned.

15. What follows is a brief typology of the problems identified. It is not intended to reflect every single point that was raised in all of the contributions (for more detailed information, the reader is directed to consult the annex to this Action Plan or the individual contributions), nor can it be presumed that the reactions received in response to the Commission's communication give a complete picture of all the problems which may exist. Nevertheless, this brief recital of specific problems may be useful to give the reader a general idea of the challenges that are to be faced and to stimulate debate.

3.1. Uniform application of Community law

16. Different types of problems have been mentioned. As a category of inconsistencies that is intrinsic to EC legislation in the field of contracts, it was mentioned that similar situations are treated differently without relevant justification for such different treatment. The problem of divergent requirements and consequences in some of the directives applying to the same commercial situation was emphasised. Examples included the different modalities concerning the right of withdrawal in Directives on Doorstep Selling [10], Timeshare [11], Distance Selling [12] and Distance Selling of Financial Services [13], in particular, the divergent duration and methods of calculation of the withdrawal periods. Other examples concerned inconsistent approaches regarding information requirements between the E-commerce Directive [14] and the two Directives on Distance Selling or divergent information requirements in different consumer protection directives as far as contract law is concerned.

[10] Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business premises (OJ L 372, 31.12.1985, p. 31).

[11] Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis (OJ L 280, 29.10.1994, p. 83).

[12] Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts (OJ L 144, 4.6.1997, p. 19).

[13] Directive 2002/65/EC on distance marketing of consumer financial services of 23 September 2002, (OJ L 271 of 9.10.2002, p. 16.

[14] Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market - "Directive on electronic commerce" (OJ L 178, 17.7.2000, p. 1).

17. Another category of inconsistencies mentioned concerned cases where in specific circumstances several EC acts can be applicable which produce conflicting results. One example mentioned concerns the limitation of liability in the Package Travel Directive [15] in connection with the Convention for the unification of certain rules for international carriage by air [16] on the one hand and the Regulation on air carrier liability in the event of accidents [17] on the other hand [18]. Another example concerns the situation of parallel application of the Doorstep Selling Directive and the Timeshare Directive as confirmed by the ECJ Travel Vac case [19].

[15] Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ L 158, 23.6.1990, p. 59).

[16] Convention for the Unification of Certain Rules for International Carriage by Air - "the Montreal Convention" (OJ L 194, 18.07.2001, p. 39).

[17] Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents (OJ L 285, 17.10.1997, p. 1).

[18] It should be noted that Regulation 2027/97 has been amended by Regulation (EC) No 889/2002 of the European Parliament and of the Council of 13 May 2002 (OJ L 140, 30.5.2002 p.2). One objective of the latter Regulation is, according to its Recital 6: "to amend Council Regulation (EC) No 2027/97 of 9 October 1997 on air carrier liability in the event of accidents in order to align it with the provisions of the Montreal Convention, thereby creating a uniform system of liability for international air transport". Recital 8 states that "In the internal aviation market, the distinction between national and international transport has been eliminated and it is therefore appropriate to have the same level and nature of liability in both international and national transport within the Community".

[19] Case C-423/97 Travel-Vac S.L. and Manuel José Antelm Sanchis [1999] ECR I -2195.

18. Another criticism concerned the co-existence of two different legislative approaches in one and the same directive. This could lead to inconsistencies within the system of the directive itself. An example mentioned concerned the differentiation between the approaches to the applicable law on marketing and contracts in the E-commerce Directive. The inconsistency within the system of the Directive could also have consequences for the national implementation law. An example, which was mentioned, is the coexistence in the Commercial Agents Directive [20] of both the concept of "indemnity" and the concept of "compensation", where a Member State in its implementation had not opted for one concept but taken over both. According to the relevant contributions, this leads to a lack of legal certainty in commercial and legal practice. Other criticisms mentioned by many contributors were formulated in the context of the use of abstract legal terms in Directives. These include fundamental terms like "contract", "damage" or more specific terms like "equitable remuneration", "fraudulent use" or "durable medium".

[20] Council Directive 86/653/EEC of 18 December 1986 on the co-ordination of the laws of the Member States relating to self-employed commercial agents (OJ L 382, 31.12.1986, p. 17).

19. One part of this more general problem is that these terms are often either not defined or too broadly defined. [21] The absence of common definitions or existence of overly broad definitions in directives leave a very large implementation discretion to the national legislators. Whereas it is true that the national implementation laws would still be in conformity with the relevant Directive, they would nevertheless lead to inconsistencies in their application to similar cases.

[21] This has also been highlighted as a significant problem by the final report of the high-level consultative group ("Mandelkern Group", set up by the Ministers responsible for the Civil Service in November 2000, report submitted on November 13th 2001) on Better Regulation, p. 70.

20. In other cases abstract terms are defined in some Directives, while they are not defined in others. For example the term "damage" is defined in the Product Liability Directive [22] for the purposes of this Directive, while it is not defined in either the Commercial Agents Directive or the Package Travel Directive. The term "durable medium" is defined in the Directive on Distance Selling of Financial Services, but not in the general Distance Selling Directive.

[22] Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (OJ L 210, 7.8.1985, p. 29).

21. One problem, which was raised in the consultation, is whether in such a case the given definition in one directive can also be used for the interpretation of other directives, i.e. whether the relevant abstract term can be interpreted in the light of the whole acquis communautaire or at least of the part, which is more broadly concerned. This methodological approach was also used by the Advocate General in Simone Leitner/TUI Deutschland GmbH & Co KG [23]. However in this specific case, the ECJ interpreted the general term "damage" only in the light of the Package Travel Directive and did not follow its Advocate General. It is true that this decision cannot necessarily be generalised. However, if the interpretation of an abstract term in the light of the specific Directive is the guiding principle, then such an interpretation can lead to fragmentation of national legislation. For example, Member States which have referred to an existing national legal concept with a general definition in their implementation laws might have to adapt this existing definition in order to implement the specific meaning of this abstract term in the light of the relevant Directive.

[23] Case C-168/00 Simone Leitner v TUI Deutschland GmbH & Co. KG, [2002] ECR I-2631.

22. A general observation concerning fragmentation of national contract laws, which was made by several contributions, was that the national legislator is faced with a dilemma. Either the implementation of directives with a limited scope entails a much larger adaptation of the national legal system than what is actually foreseen by the Community measure in question, or the implementation is restricted to the pure transposition of the directive in question. In some cases this might create inconsistencies in the national legal system.

23. Another category of problems concerned inconsistencies in the application of national implementations as a consequence of the introduction, by directives, of concepts, which are alien to the existing national legislation [24]. It was mentioned that when implementing a directive, some national legislators maintain the existing national legislation in parallel, thereby creating a situation which leads to legal uncertainty, for example the coexistence of two laws on Unfair Contract Terms in one Member State. Some legislators also created uncertainty through their implementation of dispositions in directives that are based on unfamiliar concepts, for example the term "compensation" in the Commercial Agents Directive when it was implemented in one Member State's law.

[24] This problem had already been identified by the final report of the Mandelkern Group on Better Regulation, p. 67.

24. The principle of minimum harmonisation in consumer protection legislation was criticised as not achieving the uniformity of solutions for similar situations that the internal market would require. Examples mentioned concerned the difference, from one Member State to another, in cooling-off periods in the context of Doorstep Selling, Timeshare and Distance Selling Directives, financial thresholds of implementation laws of the Doorstep Selling Directive or divergent concepts in the implementation of the annex to the Unfair Contract Terms Directive [25]. For example, it was criticised that the latter is partly implemented as a binding "black list" of unfair contract terms and partly implemented as an indicative "grey list" [26].

[25] Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.04.1993, p. 29).

[26] Some Member States have not transposed the annex into national law at all, but included it in their preparatory work; see ECJ judgement of 7.5.2002, Commission v. Sweden, C-478/99, [2002] ECR I-4147.

3.2. Implications for the internal market

25. The barriers described in the present chapter cover obstacles and disincentives to cross-border transactions deriving directly or indirectly from divergent national contract laws or from the legal complexity of these divergences, which are liable to prohibit, impede or otherwise render less advantageous such transactions.

26. Before addressing the specific problems for the functioning of the internal market, it is important to mention the general distinction between problems resulting from mandatory rules and non-mandatory rules. Some contributors stress that the main problems in the contract law area result from provisions which restrict contractual freedom.

27. It has already been pointed out [27] that a large number of problems for cross-border contracts could be avoided, at least for one party to the contract, by choosing the appropriate applicable law. Alternatively the parties could also negotiate complex contracts which cover all potential legal questions. However, it has been emphasised that this approach does not help as regards mandatory rules of the law which has not been chosen as applicable, but which nevertheless apply. Indeed, a large number of contributions during the consultation mention the divergence of national mandatory contract law provisions as a particular problem, which is accentuated by the growth of e-commerce.

[27] See already Commission Communication on European Contract Law, point 28.

28. However, it has also been underlined in a number of contributions, especially by export-oriented industries, that the choice of applicable law is not always commercially realistic or desirable.

29. Firstly, it does not help the contracting party, which does not have sufficient economic bargaining power to impose its choice of law in the negotiations. It has also been pointed out that taking advice on the unknown applicable law will involve considerable legal costs and commercial risks for this party to the contract [28] without necessarily giving the most economically favourable solution.

[28] This was emphasised for the area of services, in the report from the Commission on the state of the internal market for services, p. 36, 42.

30. This is particularly important for SMEs since the legal assistance costs are proportionately higher for them. As a result, SMEs will either be dissuaded from cross-border activities altogether or will be put at a clear competitive disadvantage compared to domestic operators [29].

[29] Cf. the report from the Commission on the state of the internal market for services, p. 8.

31. Secondly, it has been highlighted in the consultation that this situation is even more dissuasive for consumers. Their national laws are in most cases not the laws applicable to the contract. This may be because the law of the trader is chosen as the applicable law under standard terms or because it is objectively determined as the applicable law under Article 4 of the Rome Convention. Article 5 of the Rome Convention does not help the consumer in a significant way because it does not apply in the case of an active consumer who wants to take advantage of the opportunities offered by the Internal Market. Given the consumer's typical lack of knowledge of foreign law, the latter will be in greater need of legal advice prior to the conclusion of the cross-border contract.

32. Finally, the distinction between mandatory and non-mandatory provisions might be theoretically clear, but is in practice much less evident. Many contracts in practice do not waive existing suppletive legal provisions by inserting specifically negotiated clauses in the respective contract dealing with the problem in question or some do not even choose the applicable law. The existence of these gaps is not due to the fact that the contractual parties might not have seen the relevant problem or did not want to choose their own law as the applicable law to the contract. It is more due to a balanced decision between the clarity resulting from negotiating new clauses covering these gaps on the one hand and the transaction costs for such a negotiation on the other hand. In such cases, contractual parties might reasonably decide that the negotiation effort is simply not worth the economic advantage or the commercial risk of loosing the customer and hope that the potential problem will not appear. As such, the relevant non-mandatory provisions of the applicable law have become de facto "mandatory".

33. It was indicated during the consultation that this applies, in particular, to general and very fundamental legal rules on for instance the conclusion of a contract, the assessment of its validity, the notion and consequences of non-performance or partial or incorrect performance of contractual obligations.

34. This leads immediately to the first category of specific problems mentioned in the consultation. Many contributions criticised the divergence of rules on fundamental issues of contract law which create problems and entail higher transaction costs. Examples concern diverging rules on representation of foreign companies and the consequences for the validity/recognition of documents. Contributions indicated that the only way to obtain legal certainty is to take local legal advice to ensure, for example, the validity of documents and the power to bind another, which is seen as being an expensive and inconvenient solution for an everyday management act.

35. Other examples concern divergent requirements for the formation of contracts which create obstacles. This concerns especially requirements of form, such as the requirement for certain contracts to be concluded before a notary or the necessity of authentication of documents which is mandatory for certain contracts and necessitates higher costs for businesses and consumers. This concerns also the requirement for certain contracts to be in writing or in a certain language [30].

[30] As regards language barriers in the area of services resulting directly or indirectly from different regulatory environments cf. the report from the Commission on the state of the internal market for services, p. 44.

36. Another category of problems mentioned by many contributions concerned the divergence of rules on the inclusion and application of standard contract terms. In some jurisdictions, it is sufficient merely to make reference to standard terms, whereas in others they must be attached to the contract or signed separately. In some Member States such as Italy (Article 1341 codice civile), certain clauses must be individually initialled to become valid. Such rules may apply independently of the choice of law made by the contracting parties.

37. Between Member States, there are considerable differences as to which contract terms are considered inadmissible (and therefore invalid) by the courts. In some Member States such as Germany or the nordic countries, courts exert strict control over the fairness of contractual terms even in business-to-business contracts. Other Member States provide for a limited control by way of interpretation or only allow specific contract clauses to be struck down in commercial contracts.

38. This creates uncertainty for businesses that use standard terms; it also hampers the use of ready made standard contracts that were actually created to facilitate cross-border transactions and intended for use in any legal system. It is indeed necessary to use different standard contracts in different Member States, which in turn makes it impossible to use the same business model for the whole European market.

39. This leads to another category of frequently mentioned problems concerning the divergence of national rules as regards clauses excluding or limiting contractual liability in specific contracts or standard contract terms and their recognition by the law courts in another Member State. Examples mention the full responsibility of suppliers for hidden defects (vices cachés) under French case law, and the mandatory impossibility, under Czech law, of restricting contractual liability for future damages. In this context, contributions mention also different national mandatory rules on limitation periods. Export-oriented industries indicated that the resulting unrestricted liability for suppliers could lead to very high commercial risks, which discourage or impede the conclusion of cross-border transactions.

40. In the context of contractual liability, contributions highlighted also that being unaware of the specific requirements of the relevant applicable contract law often leads to unanticipated costs. Examples include the obligation for merchants to serve a prompt notice of default in respect of defective goods under the German Commercial Code ( 377) in order to preserve their right of redress and the bref délai under Art. 1648 of the French Civil Code.

41. Numerous contributions concerned problems as regards to the divergent national rules on contract law on the one hand and on the rules on transfer of property and securities concerning movable goods on the other hand [31]. The national rules on the transition of property differ and therefore the moment of transition of property is different. Furthermore, this can also depend on the nature of the contract which, again, is different in national legal systems. It must be borne in mind that the possibility of a choice of law only concerns contractual rules, and not rules applicable to rights in rem, e.g. transition of property, where the applicable law is the lex rei sitae. Many businesses are not aware of this limitation. It has been pointed out that EC law [32] addresses part of the problem by providing for the validity of retention of title clauses, but it does not go beyond this.

[31] In view of these concerns, the Commission has launched a study into these matters (2002/ OJ S 154-122573), 9.8.2002.

[32] Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions (OJ L 200, 8.8.2000, p. 35).

42. Reservation of title is regulated differently from jurisdiction to jurisdiction and the effectiveness of relevant contract clauses varies accordingly. This applies even more to possible extensions where the reservation of title also covers, for example, a claim for the purchase price which arises upon a resale of the sold goods by the buyer [33] or over products made from the sold goods [34]. These extensions can also cover future claims or not only the purchase price of the specific goods delivered under a particular contract of sale, but all the buyer's outstanding indebtedness [35].

[33] Contributions indicate that these clauses seem to be effective only in France and Germany.

[34] Contributions indicate that these clauses seem to be effective only in Germany.

[35] Contributions indicate that these so-called "all-monies" clauses seem to be effective only in the UK and Germany.

43. The divergence of rules often entails that, in the case of the sale of goods with reservation of title, the "security" foreseen in the contract disappears at the moment when the good in question is brought across the border. It is generally observed that divergence of rules on securities creates a great risk for operators on the market. As a consequence for the supply side, the seller is forced to look to other forms of securities which are, such as bank guarantees, substantially more expensive and realistically speaking, unobtainable from the outset for SMEs. The result for the demand side is that trade credit provided by the seller to the buyer will be higher priced since the seller's risk is to a considerable degree increased or decreased depending upon the availability of proprietary security and its legal effectiveness. This risk can only be partially alleviated by costly legal opinions.

44. Similar problems have been mentioned in the financial services sector for granting trans-border credit, which is only possible if the corresponding securities are guaranteed. It has been pointed out that the analysis of the validity of the cross-border transfer of securities necessitates costly in-depth legal expertise, which discourages from or impedes such cross-border transactions. In addition, it was mentioned that such analysis is rather time-consuming which, in cases of cross-border transactions to provide finance for re-capitalisation in order to prevent insolvency, might be a critical factor which prevents the whole operation.

45. Above all, some security instruments for movable goods are simply not known in other Member States and vanish if the secured goods are transferred across borders. An example given concerns the transfer of movable goods under the contractual agreement of a so-called "Sicherungsübereignung" from Germany to Austria. These differences also adversely affect the possibility of entering into cross-border leasing contracts.

46. Contributions also indicated differences in national contract laws concerning credit assignments. The difference in rules on factoring was mentioned as a problem because the assignment of receivables is an important instrument for the financing of export transactions. In particular, some Member States restrict the assignment of future receivables or the bulk assignment of receivables, while others take a much more liberal stand in these matters. As a consequence, the factoring industry meets serious obstacles in some Member States, but is favoured by laws of others; this could lead to distortions of competition. Similar differences exist with regard to the validity of clauses contained in sales or service contracts that prohibit the assignment of claims arising from those contracts. Contributions emphasise that factoring companies are prevented from offering their services outside the Member State of their establishment by using one and the same type of contract throughout the whole of the EC. In any case, they would have to undertake a very careful analysis of different national laws.

47. In the area of financial services, contributions stated that firms are unable to offer, or are deterred from offering, financial services across borders because products are designed in accordance with local legal requirements, or because the imposition of differing requirements under other jurisdictions would give rise to excessive costs or unacceptable legal uncertainty. If, in spite of this, firms decide to sell across borders, they have to cope with considerable competitive disadvantages compared to local service providers. Choice of law in business-to-business transactions only partially alleviates this problem.

48. The same problems occur particularly with insurance contracts. Contributions indicate that the diversity of national regulations governing life insurance contracts, non-life insurance for mass risks and compulsory insurance constitutes a check to the development of cross-border insurance transactions. The attractiveness of certain contract schemes at national level may disappear in cross-border situations where they have to comply with different regulatory requirements. Choice of law clauses may alleviate the problem in non-life insurance of large risks. However, they are not admissible in the other cases. The wording of a single policy that could be marketed on the same terms in different European markets has proved impossible in practice.

49. In the field of cabotage transport, i.e. road transport services carried out within a Member State by a carrier established in another Member State, it was indicated that some host Member States [36] exclude the choice of law and insist upon the application of their national provisions. As a consequence, the resulting divergence of liability regimes not only leads to high insurance costs, which generally increase the cost of cabotage transport, but may also lead to distortions of competition.

[36] Cf. Article 4 of Council regulation (EC) No 12/98 of 11 December laying down the conditions under which non-resident carriers may operate national road passenger transport services within a Member State (OJ L 4, 8.1.1998, p. 10) and Cf. Council Regulation (EEC) No 3118/93 of 25 October 1993 laying down the conditions under which non-resident carriers may operate national road haulage services within a Member State (OJ L 279, 12.11.1993 p.1).

50. In the field of consumer protection, many businesses complain about the great diversity in national regimes, which creates obstacles for cross-border business to consumer transactions. This is mainly imputed to the fact that EC directives in that field are based on the principle of minimum harmonisation, so as to allow Member States to maintain rules that are more favourable to consumers than those foreseen in Community law. While EC law has led to some degree of convergence, it is still difficult for businesses to develop distribution strategies that can be applied throughout the internal market, because the rules adopted by Member States going beyond the minimum harmonisation prescribed by EC law are necessarily divergent. In addition to this, consumer protection rules, even if they go beyond the minimum harmonisation level are often mandatory and sometimes even extended to business to business relationships.

51. The above-mentioned problems have been identified by the stakeholders and interested parties who participated in the consultation following the Communication on European Contract Law. The Commission sets out, in the following section, suggestions for a mix of non-regulatory and regulatory approaches in order to tackle some of these problems. These suggestions have to be seen in the light of the limited contributions received during the consultation.

4. Suggested approach: a mix of non-regulatory and regulatory measures

52. In some cases, the EC Treaty may already provide the legal base to solve the problems identified, although the present Action Plan does not take a position on the compatibility of the barriers identified with Community law. For other cases, non-regulatory as well as regulatory solutions may be required. As the Commission recalled in its recent Action plan "Simplifying and improving the regulatory environment", there are, in addition to regulatory instruments (regulations, directives, recommendations) other tools available, which, in specific circumstances, can be used to achieve the objectives of the Treaty while simplifying lawmaking activities and legislation itself (co-regulation, self-regulation, voluntary sectoral agreements, open co-ordination method, financial interventions, information campaign) [37]. The Commission is aware that this mix of non-regulatory and regulatory measures will not solve all problems described. However, they will provide a solution to a number of problems.

[37] Communication from the Commission - Action plan "Simplifying and improving the regulatory environment", 5.6.2002. COM (2002) 278 final, p. 3.

53. The solutions suggested cannot all be implemented within the same time frame. In a number of sectors initiatives have already or will soon be taken to update current directives or propose new ones.The measures to promote standard contract terms can be launched within a year. The creation of a common frame of reference is an intermediate step towards improving the quality of the EC acquis in the area of contract law. It will require research as well as extensive input from all interested parties. The former will be done within the context of the Sixth Framework Programme for research and technological development and will therefore depend on the timing of the respective call for proposals. In any case, it is envisaged to obtain the results of the research within three years of its launch.

54. The improvement of the existing and future acquis is a key action. The Commission will continue its efforts to improve the existing acquis [38] and expects that the common frame of reference, when available and as far as relevant, will be instrumental in this respect. Reflection on an optional instrument will start with the present Action Plan and be carried out in parallel to the whole process. The results of the Commission's examination could only be expected some time after the finalisation of the common frame of reference.

[38] Cf. for example the Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions - Consumer Policy Strategy 2002-2006, COM (2002) 208 final (OJ C 137, 8. 6. 2002), p. 7.

4.1. To improve the quality of the EC acquis in the area of contract law

55. As indicated above, one of the conclusions drawn from the consultation thus far is that it is possible for the EU to continue a sector-specific approach. However, the consultations have also emphasised the need to increase coherence of the existing acquis in the contract law area and avoid unnecessary inconsistencies in new acquis. This is why the Commission intends to take a number of measures aimed at increasing coherence of the EC acquis in the contract law area, notably by improving the quality of the legislation.

56. The objective is to achieve an European contract law acquis which has a high degree of consistency in its drafting as well as implementation and application. However, if differences between provisions in directives can be explained by differences in the problems which those directives seek to solve, intervention is not necessary. Differences in terms and concepts that cannot be explained by differences in the problems being addressed should be eliminated.

57. An improved EC acquis should enhance the uniform application of Community law as well as facilitate the smooth functioning of cross-border transactions and, thereby, the completion of the internal market. For example, it should avoid similar situations being treated differently without relevant justification for such different treatment. It should also avoid conflicting results and should define abstract legal terms in a consistent manner allowing the use of the same abstract term with the same meaning for the purposes of several directives. As such, it should indirectly remedy the fragmentation of national contract laws and promote their consistent application. Such an acquis would respond to the need for uniform application of Community law, as stated by the ECJ [39].

[39] See already Commission Communication on European Contract Law, point 34 and the references to the relevant case law of the ECJ.

58. The Commission will seek, where possible, a high degree of consistency in the contract law area. When the common frame of reference is available, the Commission would, wherever possible and adequate, make use of it and include corresponding provisions in its legislative proposals.

4.1.1. A common frame of reference

59. A common frame of reference, establishing common principles and terminology in the area of European contract law is seen by the Commission as an important step towards the improvement of the contract law acquis. This common frame of reference will be a publicly accessible document which should help the Community institutions in ensuring greater coherence of existing and future acquis in the area of European contract law. This frame of reference should meet the needs and expectations of the economic operators in an internal market which envisages becoming the world's most dynamic economy [40].

[40] Cf. the Presidency Conclusions of the Lisbon European Council, 23 and 24 March 2000.

60. If the common frame of reference is widely accepted as the model in European contract law which best corresponds to the needs of the economic operators, it can be expected also to be taken as a point of reference by national legislatures inside the EU and possibly in appropriate third countries whenever they seek to lay down new contract law rules or amend existing ones. Thus the frame of reference might diminish divergences between contract laws in the EU.

61. The following considerations are intended to give an indication of its objectives, the content areas to be covered and the organisational aspects.

62. a) As indicated above, the objectives of the common frame of reference are threefold. First, the Commission may use this common frame of reference in the area of contract law when the existing acquis is reviewed and new measures proposed. It should provide for best solutions in terms of common terminology and rules, i.e. the definition of fundamental concepts and abstract terms such as "contract" or "damage" and of the rules which apply, for example, in the case of the non-performance of contracts. In this context contractual freedom should be the guiding principle; restrictions should only be foreseen where this could be justified with good reasons. The intention is to obtain, as far as possible, a coherent acquis in the area of European contract law based on common basic rules and terminology. The second objective is that it could become an instrument in achieving a higher degree of convergence between the contract laws of the EU Member States and possibly appropriate third countries. Thirdly, the Commission will base its reflections on whether non-sector-specific measures such as an optional instrument may be required to solve problems in the area of European contract law on the common frame of reference.

63. b) In order to ensure that the common frame of reference meets the needs of the economic operators and offers a model in regulatory approaches to contract law, the Commission intends to finance extensive research in this area. The areas to be covered by the research activities and their contents follow from these objectives. The research activities should concentrate on the fields covered by the present Action Plan as well as the Communication on European Contract Law [41].

[41] EP and Council have, however, called for research to be undertaken also in the fields of tort law and property law in order to determine whether the differences in Member States' legislation in these areas constitute obstacles to the proper functioning of the internal market in practice. Following these demands, the Commission has published a tender for a study covering these fields (2002/ OJ S 154-122573), 9. 8. 2002.).

Although the details of the common frame of reference will be decided on the basis of the research and input from economic operators, it can be expected to contain the following elements:

* It should deal essentially with contract law, above all the relevant cross-border types of contract such as contracts of sale and service contracts.

* General rules on the conclusion, validity and interpretation of contracts as well as performance, non-performance and remedies should be covered as well as rules on credit securities on movable goods and the law of unjust enrichment.

Several basic sources should principally be considered:

* Advantage should be taken of existing national legal orders in order to find possible common denominators, to develop common principles and, where appropriate, to identify best solutions.

* It is particularly important to take into account the case law of national courts, especially the highest courts, and established contractual practice.

* The existing EC acquis and relevant binding international instruments, above all the UN Convention on the International Sale of Goods (CISG) [42], should be analysed.

[42] United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.

64. It is not the task of the present Action Plan to elaborate the principles or terminology, which will constitute the contents of the common frame of reference. In any case, the objectives of the common frame of reference determine its content. The first objective is to allow the existing acquis to be improved and simplified and to ensure the coherence of the future acquis. This means that the common frame of reference should provide for common solutions where problems of the acquis are identified. This could concern, for instance, problems of consistency or the use of abstract terms in EC law without definition, which may represent a legal concept for which there are different rules in each national body of law. Furthermore, it should allow the identification of common terminology for particular fundamental concepts or best solutions for typical problems in order for the future acquis to be proposed. Finally, the common frame of reference should also form the basis for further reflection on an optional instrument in the area of European contract law. In this context, it might constitute an attempt to formulate relevant principles and rules.

65. The research activities should provide for an assessment of the economic implications of the results for the economic operators, i.e. industry, retail business, legal practitioners and consumers. The Commission intends in any case to consult widely with stakeholders and other interested parties on the draft common frame of reference in order to ensure that it meets the needs of economic operators.

66. c) As far as the organisational aspects are concerned, it should be emphasised that it is not the Commission's intention to "re-invent the wheel" in terms of research activities. On the contrary, it is remarkable that never before in the area of European contract law has there been such a concentration of ongoing research activities. It is essential that these research activities are continued and exploited to the full. Therefore, the main goal is to combine and co-ordinate the ongoing research in order to place it within a common framework following several broad approaches.

67. Only where ongoing research does not cover all the areas concerned, would it be desirable that new research activities fill these gaps. Furthermore, the above-mentioned areas to be covered do not preclude ongoing research projects from going beyond these areas as they might have necessary links with other areas, like property law or tort law.

68. Research activities in the above-mentioned area could be supported by the Sixth Framework Programme for research and technological development (FP6) [43]. Within its "Integrating" Programme, Priority 7 "Citizens and governance in a knowledge-based society" presents the analytical and intellectual context for such an endeavour. It is envisaged that research activities in the domain of European Contract Law will be part of one of the first calls for proposals to be published within this priority. Given the nature of the issues at stake, the implementation could use one of the new instruments provided in FP6, in order to further structure and integrate the research efforts in this domain.

[43] Decision 1513/2002/EC of the European Parliament and of the Council of 27 June 2002 concerning the sixth framework programme of the European Community for research, technological development and demonstration activities, contributing to the creation of the European Research Area and to innovation (OJ L 232, 29.8.2002, p. 1).

4.1.2. High quality and consistency of the EC acquis in the area of contract law

69. As stated in the Better Regulation Action Plan [44], the Commission feels that it is essential to maintain high standards as regards quality and consistency throughout the entire legislative process.

[44] Communication from the Commission - Action plan "Simplifying and improving the regulatory environment", p. 15.

70. This measure therefore fits in the overall EU institutions' strategy, which aims at simplifying the regulatory environment and enhancing the quality of EC legislation. The Lisbon European Council gave a mandate to the Commission [45], which was confirmed at the Stockholm, Laeken and Barcelona summits [46], to present a co-ordinated strategy for further action to simplify the regulatory environment. Since 2001, the Commission has been engaged in a wide consultation process with the other institutions and Member States with which it shares responsibility for the quality of Community legislation, and an important debate was launched, aimed at improving the quality, effectiveness and simplicity of regulatory acts and at better consulting and involving civil society in the EU decision-making process.

[45] Presidency Conclusion, Lisbon European Council 23 and 24 March 2000, SN (2000) 100, p. 6.

[46] Presidency Conclusion, Stockholm European Council 23 and 24 March 2001, SN (2001) 100, p. 5; Presidency Conclusion, European Council Meeting in Laeken 14 and 15 December 2001, SN (2001) 300, p. 1; Presidency Conclusion, Barcelona European Council 15 and 16 March 2002, SN (2002) 100, p. 7.

71. In this context, the White Paper on Governance adopted in July 2001 [47], together with the Better Regulation Action Plan, represents a dynamic expression of the political will to reform the regulatory environment. The White Paper on Governance stresses the need for the European Union to "pay constant attention to improving the quality, effectiveness and simplicity of regulatory acts" [48]. The Better Regulation Plan, aims inter alia at improving the quality of legislation proposals. It mentions that "the aim of simplifying and improving the regulatory environment is to ensure ... that Community legislation is more attuned to the problems posed, to the challenge of enlargement and to technical and local conditions. By being written in a less complicated style, it should be easier to implement for the Member States and operators concerned and easier for everyone to read and understand. The ultimate goal is to ensure a high level of legal certainty across the EU, even after enlargement, enable economic and social operators to be more dynamic and thus to help strengthen the Community's credibility in the eyes of its citizens" [49].

[47] European Governance - a White Paper. COM (2001) 428 final.

[48] See footnote 19, p. 20.

[49] Communication from the Commission - Action plan "Simplifying and improving the regulatory environment", p. 3.

72. Already, in its Communication on European Contract Law, the Commission indicated that "improving the quality of legislation already in place implies first modernising existing instruments. The Commission intends to build on action already undertaken consolidating, codifying and recasting existing instruments centred on transparency and clarity. Quality of drafting could also be reviewed; presentation and terminology could become more coherent. Apart from those changes regarding the presentation of legal texts, efforts should be systematically focused on simplifying and clarifying the content of existing legislation. Finally, the Commission will evaluate the effects of Community legislation and will amend existing acts if necessary" [50].

[50] See footnotes 19, 21.

73. In its Communication on Consumer Policy Strategy for 2002-2006 [51], the Commission emphasised the need for greater convergence in EU consumer law, which would notably imply a review of existing consumer contract law, in order to remove existing inconsistencies, to fill in gaps and to simplify legislation.

[51] Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions - Consumer Policy Strategy 2002-2006, p. 7.

74. In order to ensure coherence in the legislative framework for financial services, the Commission indicated that it will launch a three-strand policy to secure increased levels of convergence in respect of consumer and investor protection rules. Its third strand foresees a review of national rules relating to retail financial services contract [52]. As it has also been stressed in the consultation, contracts play a crucial role in financial services - particularly banking and insurance. Indeed, in these areas the services consist often of a series of terms and conditions which are expressed in a contract. Over time, Member States have developed rules, which affect the terms and conditions which may or may not be included in an insurance contract or another financial services contract. To the extent that these rules differ they might affect the products which are offered across borders. Further convergence of such measures may be needed in order to balance the need for greater uniformity of national rules with the need to maintain product innovation and choice [53]. Improving the quality of the acquis and making it more coherent [54] as far as contract law is concerned is therefore a key initiative in this context, and it would constitute a follow-up action to the Better Regulation Action Plan.

[52] Communication from the Commission to the Council and the European Parliament "E-commerce and financial services", COM (2001) 66 final, p. 10.

[53] Communication from the Commission to the Council and the European Parliament - E-commerce and financial services, p. 13.

[54] The final report of the Mandelkern Group on Better Regulation (p. 42) recognises this as one of the main objectives of legally effective consolidation.

75. This measure gathers overall support from other EU institutions as well as civil society. Both the Council and the European Parliament have emphasised the need for coherence, improvement and consolidation of the existing acquis communautaire. The consultation launched by the Commission shows that this measure is also almost unanimously supported by all contributors, and particularly by industry and by legal practitioners. The Commission considers therefore that ensuring coherence and consistency of the existing and future acquis is a priority that needs to be tackled rapidly.

76. In order to solve this problem, the consistency of EC legislation has to be ensured in the light of identified problem areas. This means notably:

* remedying identified inconsistencies in EC contract law

* reviewing the quality of drafting

* simplifying and clarifying existing legislation

* adapting existing legislation to economic, commercial and other developments which were not foreseen at the time of adoption

* filling gaps in EC legislation which have led to problems in its application

77. Consolidation [55], codification [56] and recasting [57] of existing instruments, focussed on transparency and clarity, will have to be considered where appropriate.

[55] Consolidation means grouping together in a single non-binding text the current provisions of a given regulatory instrument, which are divided between the first legal act and subsequent amending acts.

[56] Codification means the adoption of a new legal instrument which brings together in a single text, but without changing the substance, a previous instrument and its successive amendments, with the new instrument replacing the old one and repealing it. An inter-institutional agreement on codification was concluded on 20 December 1994.

[57] Recasting means adopting a single legal act, which makes the required substantive changes, codifies them with provisions remaining unchanged from the previous act, and repeals the previous act. The inter-institutional agreement adopted on 17 April 2002 (SEC (2001) 1364) for more structured use of the recasting technique for legal acts will make it easier to apply this method.

78. Such action would not go beyond the harmonised areas, but deal with areas already, at least partially, covered by EC legislation. However, it would not only concern the existing acquis, but also the future measures in order to ensure the coherence of the acquis as a whole.

79. The Commission intends to implement the above mentioned actions and to submit other proposals where a sectoral need for harmonisation arises. It is envisaged for the implementation of these actions that where possible and adequate, the common frame of reference will be used as a tool for greater convergence. So the common frame of reference could, for example, make definitions or fundamental rules available, which could be used to improve the existing acquis and be integrated in the future acquis.

80. In its Better Regulation Action Plan, the Commission had suggested ensuring that substantial modifications introduced by the European Parliament and the Council to Commission proposals during the first reading do not change the quality of the legislative act itself and that it is essential to maintain high standards as regards quality and consistency throughout the entire legislative process [58]. As a consequence for the area of European contract law, the common frame of reference as a guideline should not only be used by the Commission in the preparation of its proposals, but should also prove useful to the Council and the European Parliament in case they propose amendments.

[58] Communication from the Commission - Action plan "Simplifying and improving the regulatory environment", p. 15.

4.2. To promote the elaboration of EU - wide standard contract terms

81. The principle of contractual freedom, which is the centrepiece of contract law in all Member States, enables contracting parties to conclude the contract which most suits their particular needs. This freedom is restricted by certain compulsory contract law provisions or requirements resulting from other laws. However, compulsory provisions are limited and parties to a contract do enjoy a significant degree of freedom in negotiating the contract terms and conditions they want. This is particularly important in case the parties want to conclude a contract with special features or which needs to cover a complex situation.

82. Nevertheless, in a large majority of cases, and in particular for fairly straightforward and often repeated transactions, parties often are interested in using standard contract terms. The use of standard contract terms spares the parties the costs of negotiating a contract.

83. Such standard terms are often formulated by one of the contracting parties, in particular, where a single contracting party possesses sufficient bargaining power to impose its contract terms, either as a seller or a service provider or as a purchaser of goods or services. In other cases such standard contract terms are developed by a group of contracting parties, representing either one side in contract negotiations or, more rarely both sides, or they may be developed by a third party.

84. Although standard contract terms and conditions are used very broadly, most of them have been developed by parties from a single Member State. Such contract terms may therefore be less adapted to the particular needs of cross-border transactions. The Commission is aware, however, of initiatives in which standard contract terms have been developed specifically for international transactions [59]. These contract terms are increasingly being used also for contracts concluded inside single Member States.

[59] For example, Orgalime, a European trade association in the metalworking, mechanical and electrical engineering sector has developed General Conditions, Model Forms and Guides to provide practical assistance for companies when they draw up different types of contracts which are commonly used in international trade in the sectors covered.

85. This demonstrates the usefulness of standard terms developed for use in various Member States and, in particular, in cross-border transactions. The Commission believes that if such general terms and conditions were developed more widely, they could solve some of the alleged problems and disincentives reported. This is why the Commission intends to promote the establishment of such terms and conditions in the following ways:

a) Facilitating the exchange of information on initiatives.

86. As a first step in promoting the development of EU-wide standard terms and conditions, it is important to establish a list of existing initiatives both at a European level and within the Member States. Once such a list is made available, parties interested in developing standard terms and conditions could obtain information on similar initiatives in other sectors or in the same sectors in other Member States. Thus they could learn from the mistakes of others and benefit from their successes ("best practices"), while they could also obtain names and addresses of their counterparts in other Member States who could be interested in a joint effort to create EU wide standard terms and conditions.

87. Thus the Commission intends to set-up a website, where companies, persons and organisations can, on their own responsibility [60], list information on existing or planned initiatives in this area. The Commission will invite all such companies, persons and organisations to post the relevant information on this website. The Commission intends to evaluate the usefulness of the site with users 18 months after its launch, and may take appropriate steps.

[60] Publication of this information on a Commission website does not mean that the Commission accepts any responsibility for the contents.

b) Offering guidelines on the use of standard terms and conditions

88. The Commission's general support for the elaboration of standard terms and conditions on an EU wide scale, rather than on a member state per member state basis should not be interpreted as a blanket approval of such terms and conditions, however. Indeed, standard terms and conditions should not violate EU rules, nor run counter to EU policies. This is why the Commission intends to publish guidelines, the purpose of which is to remind interested companies, persons and organisations that certain legal and other limits apply. Thus it is obvious that the standard terms and conditions should be in conformity with the Unfair Contract Terms Directive, where it applies. The guidelines will also remind parties that limits for such initiatives result from the EU competition rules. Moreover, it is important to ensure that standard contract terms and conditions are jointly elaborated by representatives from all relevant groups including large, small and medium sized industry, traders, consumers and legal professionals.

4.3. Further reflection on the opportuneness of non-sector specific measures such as an optional instrument in the area of European contract law

89. During the consultation, there were calls to continue reflections on the opportuneness of non-sector-specific measures in the area of European contract law.

90. Some arguments have been made in favour of an optional instrument, which would provide parties to a contract with a modern body of rules particularly adapted to cross-border contracts in the internal market. Consequently, parties would not need to cover every detail in contracts specifically drafted or negotiated for this purpose, but could simply refer to this instrument as the applicable law. It would provide both parties, the economically stronger and weaker, with an acceptable and adequate solution without insisting on the necessity to apply one party's national law, thereby also facilitating negotiations.

91. Over time economic operators would become familiar with these rules in the same way they may be familiar with their national contract laws existing at this moment. This would be important for all parties to a contract, including in particular SMEs and consumers, and in facilitating their active participation in the internal market. Thus such an instrument would facilitate considerably the cross-border exchange of goods and services.

92. The Commission will examine whether non-sector-specific-measures such as an optional instrument may be required to solve problems in the area of European contract law. It intends to launch a reflection on the opportuneness, the possible form, the contents and the legal basis for possible action of such measures. As to its form one could think of EU wide contract law rules in the form of a regulation or a recommendation, which would exist in parallel with, rather than instead of national contract laws. This new instrument would exist in all Community languages. It could either apply to all contracts, which concern cross-border transactions or only to those which parties decide to subject to it through a choice of law clause. The latter would give parties the greatest degree of contractual freedom. They would only choose the new instrument if it suited their economic or legal needs better than the national law which would have been determined by private international law rules as the law applicable to the contract.

93. It is the opinion of the Commission that contractual freedom should be one of the guiding principles of such a contract law instrument. Restrictions on this freedom should only be envisaged where this could be justified for good reasons. Therefore it should be possible for the specific rules of such a new instrument, once it has been chosen by the contracting parties as the applicable law to their contract, to be adapted by the parties according to their needs [61].

[61] Cf. Article 6 of the CISG.

94. Only a limited number of rules within this body of rules, for example rules aiming to protect the consumer, should be mandatory, if the new instrument applies to the contract. The reflection would have to include, inter alia, the question whether the optional instrument (if it were a binding instrument) could exclude the application of conflicting mandatory national provisions for areas which are covered thereby. Such an instrument would, accordingly, ensure freedom of contract in two ways: first, when the parties choose this instrument as the applicable law and second, as they are able, as a matter of principle, to modify the respective rules.

95. It is clear that in reflecting on a non-sector-specific instrument, the Commission will take into account the common frame of reference. The content of the common frame of reference should then normally serve as a basis for the development of the new optional instrument. Whether the new instrument would cover the whole scope of the common frame of reference or only parts thereof, or whether it would cover only general contract law rules or also specific contracts, is at present left open.

96. The Commission would welcome comments on the scope of an optional instrument in relation to the CISG. The optional instrument could be comprehensive, i.e. covering also cross-border contracts of sale between businesses, and thereby include the area covered by the CISG. It could also exclude this area and leave it to the application of the CISG.

97. As with all measures mentioned in this Action Plan it is the purpose of this Action Plan to invite comments from EC institutions and stakeholders on the suggestions.

5. Conclusion

98. The purpose of this Action Plan is to receive feedback on the suggested mix of non-regulatory and regulatory measures as well as input for the further reflection on an optional instrument in the area of European Contract Law. It also intends to continue the open, wide-ranging and detailed debate, launched by the Communication on European contract law with the participation of the institutions of the European Community as well as the general public, including businesses, consumer associations, academics and legal practitioners.

99. All parties that wish to contribute to the debate are requested to send their contribution by 16.5.2003. These contributions should be sent, if possible in electronic form, to European-Contract-Law@cec.eu.int, or otherwise in writing to the European Commission, 1049 Brussels. Each contribution should be marked "Action Plan on European Contract Law". In order to stimulate a real debate on the issue, the Commission has published this Action Plan on the Commission's Europa website under: http://europa.eu.int/comm/consumers/ policy/developments/contract_law/index_en.html. Incoming contributions will be published on the same website, unless senders request confidentiality.

ANNEX

Reactions to the Communication on European Contract Law

1. Introduction

Following the publication of the Communication on European Contract Law, the Council and the European Parliament reacted to the Communication in November 2001. Moreover, the Commission has received contributions from - at present - 160 stakeholders (see annexes). This interest of the Community Institutions and stakeholders shows the importance of the debate launched by the Communication.

As regards the geographical origin of the contributions it is noticeable that the highest number of contributions have come from Germany and the UK. No or few contributions have been received from some Member States. A considerable number of international stakeholders have also contributed to the consultation. The academic and business communities have sent the largest number of contributions, but legal practitioners have also contributed to a considerable extent.

The Commission received by far the overwhelming majority of contributions after the date originally envisaged for the end of the consultation period. All contributions received up to 31 January 2002 have been included in this document and the Commission will also take account of further contributions in the future.

The analysis of the contributions received thus far is divided into three parts. In Part 2 of this paper there is an analysis of the reactions of the European Institutions. In Parts 3 and 4 of this paper there is an analysis of the reactions of all other contributors, divided into their views on existing problems (Part 3) and possible solutions (Part 4). Part 5summarises the Commission's next steps.

This synthesis aims to present the Commission services' understanding of the contributions received during the consultations. It may not reflect everything that has been said in these contributions. In the interests of transparency, the responses sent by electronic mail have been published on the Internet site of the Commission in so far as the contributors have given their consent to publication. However, the list of contributors in Annex I excludes those contributors who have specifically requested confidentiality.

The Commission's Internet site on European contract law is at the following address:

http://europa.eu.int/comm/consumers/ policy/developments/contract_law/index_en.html

2. Reactions of the European Institutions

The Commission Communication was presented to the Internal Market/Consumer Affairs Council on 27 September 2001. The Justice and Home Affairs Council took the opportunity of the "Council report on the need to approximate Member States' legislation in civil matters'", adopted on 16 November 2001, to react to the Commission's Communication. On the previous day the European Parliament adopted a resolution on the Commission Communication.

2.1 The Council Report

The Council report is fairly balanced. Its introduction clarifies how the Council interprets the mandate given by the European Council of Tampere. While referring to the EP resolutions, the Commission communication and academic work, the Council emphasises the central role of contract law. The Council also mentions - with careful formulation - family law as a possible subject for a discussion on the approximation of national private laws.

In the following chapter the Council briefly mentions - similarly to the Commission Communication - the other instruments, i.e. harmonised private international law rules and international instruments on harmonised substantive law. It is worth mentioning that the Council emphasises - again like the Commission communication - the limits of these approaches. Another interesting point in this context is that Member States that have not yet ratified relevant agreements are encouraged to do so. This is particularly important for the Vienna Convention on the International Sale of Goods (CISG), which has not yet been ratified by the United Kingdom, Ireland or Portugal.

This chapter also refers to the programme of measures for the implementation of the principle of mutual recognition of decisions in civil and commercial matters adopted by the Council. Moreover and for the first time the Council indicates that the necessary degree of confidence could be attained in the future if the convergence of substantive laws is enhanced.

The following part of the Council report constitutes, together with the conclusions, the central part of the report. Th part emphasises repeatedly the need for greater coherence and improvement of the existing acquis communautaire. In this context it is also briefly mentioned that the results of harmonisation achieved through directives are sometimes regarded as insufficient, in particular because of the significant variations between national implementing measures. The Council also mentions - like the Commission communication - the problem of the lack of uniform definitions for general terms and concepts in Community law, which can cause different results in commercial and legal practice.

The Council mentions a number of the most important Community instruments in the area of private law and recognises that these instruments have created a "ius commune" in the relevant areas of national law.

Besides the demand for increased coherence in Community law, the Council report would seem to favour a more horizontal approach to harmonisation, aiming at the creation of a European common core of private law if a need for harmonisation is revealed. Finally, the Council expresses the wish to examine whether the differences in the areas of non-contractual liability and property law constitute barriers to the proper functioning of the internal market. This is the second area of law where the Council report goes beyond the scope of the Commission's Communication.

The fourth part of the Council report deals with family law and does not need to be summarised in detail here as family law is outside of the scope of the Commission's Communication.

The conclusions of the Council report are addressed to the Commission and include what the Commission, according to the Council, should do in the follow-up to its Communication.

The most important conclusion is the request to the Commission to communicate the results of the consultation launched by its Communication and its recommendations, if necessary in the form of a Green or White Paper, to the Community institutions and the public by the end of the year 2002. As far as the contents of this future Green or White Paper are concerned, the Council invites the Commission to examine at least some specific points. It should identify the Community acts to be reviewed and the reasons for such a review. Furthermore it should point to the areas of law where the diversity of national legislation undermines the proper functioning of the internal market and the uniform application of Community law. The Commission recommendations should also cover the possibility of adopting a more horizontal approach for new legislative initiatives and their impact on the consistency of private law. Another suggestion from the Council concerns regular co-ordination between Member States in the area of private law during the transposition of directives, an approach which is already partially practised. The last point refers to the working methods to be implemented to achieve greater approximation of national laws and to prevent inconsistencies.

In addition to the Green or White Paper, the Council would also like the Commission to launch a study in the areas of non-contractual liability and property law in order to find out whether the differences in Member States' legislation constitute obstacles to the functioning of the internal market.

2.2 The European Parliament Resolution

The EP specifically mentions two groups for which the internal market has, to a large extent, not yet brought desirable advantages: small and medium-sized enterprises and consumers. The resolution also emphasises the aim of equitably balancing the interests of undertakings and consumers as well as the burden placed on consumers and legal representatives. The EP resolution - in agreement with the Council report and Commission Communication - stresses the limits of private international law such as the Rome Convention and internationally harmonised substantive law such as the CISG.

The EP criticises the restriction of the scope of the Commission Communication to contract law. It also mentions - similarly to the request of the Council for a study - the areas of non-contractual liability and property law as relevant.

After having listed the main EC instruments in the area of private law the EP states that the relevant directives are not well co-ordinated and their implementation poses problems in relation to national private laws. It therefore emphasises that the different rules should be applied more consistently.

The EP underlines explicitly the need to pursue the harmonisation of contract law with the aim of facilitating cross-border transactions in the internal market.

The core of the EP resolution is the request, addressed to the Commission, for a detailed action plan. The steps of this action plan can be regrouped in three phases: short, medium and long-term measures.

By the end of 2004 a database should be created in all Community languages which contains national legislation and case law in the area of contract law. On this basis, comparative law research and co-operation are to be promoted with the aim of working towards common legal concepts and solutions and a common terminology for all national legal systems, i.e. Option II of the Commission communication. The EP wants to be regularly informed about the progress of the work and will provide its opinion on it. Parallel to this work on Option II, Option III is also to be pursued and the Commission is requested to put forward legislative proposals aimed at the consolidation of existing EC law. At the end of the first phase the Commission is to consider whether further provisions relevant to the internal market are essential, paying particular attention to the growing area of electronic commerce. In relation to these provisions, the EP suggests the instrument of a regulation, while for specific areas of consumer protection law it still prefers the instrument of a directive.

From 2005 on, a comparative analysis of common legal concepts and solutions should be published. At the same time the Commission is to promote the dissemination of Community law and the results of Option II in academic training and among legal practitioners. All EC institutions should apply the common legal concepts, solutions and terminology consistently when involved in the legislative process.

Thirdly, EC legislation implementing the common legal principles and terminology for cross-border and purely national contracts should leave intact the possibility of a different governing law. The practical effects of this legislation are to be evaluated from 2008 on. The results of this evaluation could possibly lead to the establishment and adoption of a body of rules on contract law from 2010 on. The EP would prefer a regulation available for use on an optional basis under private international law. The EP stresses the use of Article 95 as a legal basis.

3. Responses within the Commission Consultation Process - Need for Further-Reaching EC Action in the Area of Contract Law

3.1 Implications for the Internal Market

3.1.1 Responses from Governments

The governmental bodies dealing in their responses with the implications for the internal market of diversities of contract law affirm that there are problems, or at least that there may be. However, only a minority of contributions mention specific problems; this is obviously in some cases due to the fact that national governments have summarised the results of their national consultations.

The Portuguese Government states that information costs resulting from different national contract laws are an obstacle to cross-border transactions. These differences also make it difficult to pursue cross-border litigation. For reasons of legal certainty, namely in order to avoid doubts and legal gaps in the area of e-commerce, it also identifies a need for harmonisation in the field of consumer contract law. In this context the Austrian government reports from its national consultations that it was not so much consumers as business which pleaded for full harmonisation of consumer contract law, as opposed to minimum harmonisation, thereby avoiding divergent national implementation. Concerns relating to minimum harmonisation in consumer law are also reported by the Belgian Ministry of Economic Affairs and by the Finnish Government from its consultations. The latter also suggests that there are concrete problems in the area of insurance law and that differences between mandatory rules reduce the willingness of individual companies to participate in cross-border activities. While it considers the latter to be minor in comparison with other problems, it emphasises the more serious nature of problems in the areas of, for example, damages and property law. The Belgian Ministry of Finance suggests that contract law harmonisation would allow the uniform classification of contracts for tax purposes and thereby avoid distortions of competition in the internal market caused by the application of different tax regimes. A concern of the Belgian Banking and Finance Commission is lack of harmonisation of rules affecting the contractual relationship between financial intermediaries and their clients, which constitutes an obstacle to the internal market. The German Länder suggest that the complexity of the current legal situation and the problem of the applicable law cause substantial obstacles.

The UK Government accepts that the internal market may not be functioning perfectly because of the type of barriers identified in the Commission communication, but considers that the extent of any such problems will vary from sector to sector. Pointing to the different legal regimes in Scotland and in England and Wales, it does not consider that the co-existence of different national contract laws is in itself necessarily inimical to the functioning of an internal market. The UK Financial Services Authority could not identify any specific problems. However, it accepts that the co-existence of national contract laws may, at least in theory, constitute a potential obstacle to the functioning of the internal market, especially if other barriers are broken down by, for example, the introduction of the euro. The Danish Government reports from its national consultations that the preponderant proportion of consultation responses from industrial organisations states that there is no immediate basis for establishing the existence of any noticeable difficulties to the development of the internal market. A large number of areas have developed standard customs, international or common European standard contracts. These industries see no urgent need to promote the development of new standard contracts. However, the results of the Danish consultations also show that SMEs may encounter particular difficulties in the internal market as a consequence of differences in the contract laws of the Member States, mostly because of the risk of ignorance of the foreign rules or the costs of clarifying the uncertainties. Moreover, SMEs often have to accept their co-contractor's standard terms and the law of the latter as the applicable law due to their weaker negotiating power. Danish consumer associations are reported not to be aware of particular problems having the effect of preventing consumer cross-border commerce. However, they have pointed out that European contract law should be kept abreast of developments, for example concerning problems in connection with the formation and execution of consumer agreements in the internal market. Some of the Danish consultation responses point to the need for harmonisation within a more limited area such as the formation and validity of contracts because of major differences between national legal systems concerning formal requirements for the formation of contracts, including the assistance of a public notary. Finally a few responses state that - not least as a consequence of IT developments - some contractual harmonisation may be needed in particular industries, such as the field of financial services. On the basis of this, the Danish Government has not been able to confirm that the different national contract law rules hinder the satisfactory development of the internal market.

The Polish Government states that the existence of different systems of civil law in the EU does not constitute a substantial obstacle to the functioning of the internal market. However, it also emphasises that unification of contract law would lower the transaction costs of business. Furthermore it mentions that cross-border transactions are severely obstructed by diversities in the procedures to be followed in concluding a contract as well as in the assessment of its validity.

The EEA-EFTA states report that national contract laws may directly or indirectly obstruct the proper functioning of the internal market as they result in increased transaction costs, especially given the influence of new technologies in facilitating the conclusion of cross-border contracts, the introduction of the euro and other factors. More particularly they raise the issue of differences in mandatory rules, which may have a negative impact.

3.1.2. Responses from Business

According to some contributors from the manufacturing industry, differences in national legislation do not represent a significant obstacle to cross-border transactions because in most cases private international law, the Convention on the International Sale of Goods (CISG) and existing Community law provide satisfactory solutions. Some business associations emphasise that diversities in national law lead to distortions of competition, e.g. through higher information costs, and a lack of legal certainty, especially with regard to different liability regimes. Liability for latent defects under French law has been named as one problem. Problems have been observed for SMEs in the services sector because of the great diversities in national legislation on services. Sometimes difficulties persist after the harmonisation of the law, for instance on commercial agents. That makes recourse to legal advice occasionally necessary. Particular problems are associated with the diversity of laws on the limitation of liability and laws on security interests. In cross-border transactions business perceives significant problems with liability for and the enforceability of standard terms and the requirements for the incorporation of standard terms in contracts under foreign law, in particular Italian law. Ignorance of the fact that the law of the contract does not necessarily govern the proprietary aspects of transactions in some Member States causes additional problems. Furthermore, diversity in rules applicable to the transfer of title to and security in goods adversely affects the possibility of entering into cross-border leasing agreements. Pre-contractual differences cause great difficulties for EU business

While contributors from the retail trade name the uneven transposition of the Doorstep Selling Directive 85/577/EEC as an obstacle to cross-border direct selling, almost all associations concerned with financial services indicate problems concerning cross-border trade due to different contractual requirements and the different approaches in the Member States. Variations in the implementation and application of directives and differing national contractual requirements are mentioned many times as a deterrent to cross-border trade. It is sometimes impossible to know when a contract has been concluded, how certain clauses will be implemented or which clauses will be disapplied as a result of statutory provisions or implied terms. Businesses are discouraged from cross-border transactions more by differences in the details of different consumer protection regimes than by diversity in the overall level of protection afforded. Assessment of different levels of protection involves high legal costs. Different time periods under different directives and the implementation of the directive on commercial agents pose problems as does, for instance, the implementation of the Directive on Cross-border Payments. For the insurance sector in particular the diversity of national regulations is perceived as an obstacle to cross-border activities.

Among other business organisations, some associations have observed barriers to cross-border trade due to uncertainty about mandatory rules and divergences in rules on agency and the formation of contract, necessitating different procedures in different Member States. The effect of differences between the various laws in deterring parties from transactions is felt in particular in SME-to-consumer relations. The different rules for the formation of contracts and the impossibility of applying uniform standard contracts is a problem that produces huge transaction costs to which in particular SMEs are vulnerable.

3.1.3 Responses from Consumer Organisations

According to consumers' organisations, disparities in national contract law create great uncertainties for consumers because they do not have enough information on the applicable law, e.g. the increases in interest rates charged on loans in Germany, which do not occur in France. This leads to increased transaction costs or even deterrence from cross-border transactions. One contributor adds that the differing contract laws are just one factor and that the practical means of obtaining advice and mechanisms for resolving disputes involve more important difficulties.

3.1.4 Responses from Legal Practitioners

Some contributors from the UK do not see the lack of harmonisation of contract laws as an obstacle to the development of an integrated financial market.

Concerns that the functioning of the internal market may be hampered by the existence of different national systems of contract law are seen as less substantial than assumed, as different systems often produced similar results.

Some contributors refer to the United States, where no unified system exists but where the Uniform Commercial Code serves merely as a model for certain aspects of the law of obligations, and the UK, where Scottish Civil Law co-exists with English common law.

Language barriers, cultural differences, distance, habits and judicial attitudes are seen as more significant than the diversity of laws. It is suggested that divergences in civil procedure should be addressed as a priority.

However, some practitioners accept that consumers and SMEs, not being appropriately advised by in-house lawyers, unlike larger market operators, may encounter difficulties. On the one hand parties always have the choice of the governing law of the contract, but very often the more powerful party will impose the law of its domicile. Larger market operators will always find ways to cope with any problem by sophisticated contractual arrangements, even if lawyers need to know not only the relevant EC law but also how the directive in question has been implemented in t