P6_TA(2006)0109

European contract law and revision of the acquis

European Parliament resolution on European contract law and the revision of the acquis: the way forward (2005/2022(INI))

The European Parliament,

- having regard to Rule 45 of its Rules of Procedure,

- having regard to the report of the Committee on Legal Affairs and the opinion of the Committee on the Internal Market and Consumer Protection (A6-0055/2006),

A. whereas, whilst it seems that the European contract law initiative as described in the Commission communication of 11 October 2004 (COM(2004)0651) and reported on in the Commission's First Annual Progress Report (COM(2005)0456) should be seen primarily as an exercise in better lawmaking at EU level, it is by no means clear what it will lead to in terms of practical outcomes or on what legal basis any binding instrument or instruments will be adopted,

B. whereas, even though the Commission denies that this is its objective, it is clear that many of the researchers and stakeholders working on the project believe that the ultimate long-term outcome will be a European code of obligations or even a full-blown European Civil Code, and that in any event the project is by far the most important initiative under way in the civil law field,

C. whereas the decision to work towards and on such a Code must be taken by the political authorities, since the very decision to opt for a Code is political and its content, albeit legal, is predicated on social and political objectives; whereas, given that in the future the political will may well exist to adopt such a Code, it is essential that the present work be done well and with the appropriate political input,

D. whereas, even if the initiative in its present form is limited to rationalising and tidying up the acquis in the field of consumer protection and to producing optional standard contract terms and conditions, it is essential that the political authorities have a proper input into the process; in this connection, recent experience with the adoption of a new Civil Code in the Netherlands could serve as a model,

E. whereas, if the aim is to revise the consumer protection acquis with a view to raising public confidence in the internal market, it is necessary to deliver a high level of consumer protection,

F. whereas the final product of the initiative should be open to amendment by the EC legislature and should be formally adopted by it,

G. whereas, given that the existing consumer protection acquis is a distinctive area of Community law which reflects the EC legislature's concern to deliver a high level of consumer protection in accordance with the Treaties, and although it is clear that the European contract law initiative has a wider remit of securing and developing the coherence of contract law as a whole, this exercise should not lead to a dilution of the values at the heart of the existing consumer protection acquis,

Underlying principles and objectives

1. Reiterates its conviction, expressed in its resolutions of 26 May 1989 [1], 6 May 1994 [2], 15 November 2001 [3] and 2 September 2003 [4], that a uniform internal market cannot be fully functional without further steps towards the harmonisation of civil law;

2. Calls on the Commission to exploit straightaway the ongoing work by the research groups on the drafting of European contract law, and by the Network for a common frame of reference (CFR-Net [5]), with a view to using their results firstly towards the revision of the acquis in the field of civil law, and subsequently towards developing a system of Community civil law;

Substantive law issues

3. Strongly recommends that the proposed common frame of reference and the envisaged contract law should not be designed in such a way as to unilaterally favour one restricted group of participants in legal transactions;

4. Reminds the Commission that the term "business" covers more than just large corporations and includes small — even one-person — undertakings which will often require contracts that are specially tailored to their needs and that take account of their relative vulnerability when contracting with large corporations;

5. Notes that the law to be developed must be applicable not only to business-to-business legal transactions but also to business-to-consumer legal transactions;

6. Calls on the Commission to distinguish, where necessary, between legal provisions applicable to the business-to-business sector and those applicable to the business-to-consumer sector, and to separate the two systematically;

7. Highlights the importance of taking into account the fundamental principle of freedom to conclude a contract, particularly in the business-to-business sector;

8. Highlights the importance of taking into account the European social model when harmonising contract law;

9. Calls for differing legal traditions and systems to be respected;

10. Calls on the Commission, in its future proposals, to define adequately and precisely how those proposals will interact with the Community rules on the conflict of laws and with national legal systems, in particular as regards the conditions determining the validity of a choice of applicable law, the mandatory rules and the role of the lex fori;

11. Notes that with over-detailed legal provisions on individual aspects of contract law there is a danger of being unable to react flexibly to altered legal circumstances, and therefore favours the adoption of general regulations including legal concepts which are not precisely defined, thus giving the courts the necessary margin of discretion in arriving at their judgments;

12. Asks the Commission to conduct a thorough legal and economic impact assessment for all legislative measures concerning civil law;

Procedural issues

13. Welcomes the Commission's First Annual Progress Report and endorses its thoughtful and measured approach to the revision of the consumer protection acquis;

14. Calls for the Commission as a whole, under the primary responsibility of the Justice, Freedom and Security DG and with the involvement of the Internal Market and Services and the Health and Consumer Protection DGs in particular, to participate in this work, and for the material and human resources which are necessary — given the importance and extent of the project — to be made available;

15. Calls on the Commission to submit without delay a clear legislative plan setting out the future legal instruments by which it aims to bring the results of the work of the research groups and the CFR-Net into use in legal transactions;

16. Calls on the Commission to submit to Parliament a formal plan for the incremental consultation of Parliament as the work progresses, and for the ultimate implementation of the results of the work of the researchers and the CFR-Net;

17. Calls on the Commission to ensure that the results obtained by the Network are adequately taken into account in the work of the research groups;

18. Supports the Commission in its efforts at better law-making, but emphasises that the work done by researchers in developing the CFR must follow clear guidelines laid down by the EC legislature;

19. Asks the Commission to assist clarification of the research and stakeholder processes by the production of an organisational diagram and/or flow chart which clearly identifies all the different groups, working groups, parties and so on which are involved, thereby indicating their role and position in the processes;

20. Considers it desirable for the Commission, on the basis of the researchers' final report, to submit the various possible legal options to the Parliament, and recalls that the CFR can only finally be adopted following political approval by the Parliament and the Council;

21. Calls on the Commission to keep Parliament continually informed, at least in quarterly reports, of the results obtained and progress of the work of the research groups and of the Network;

22. Requires at least the following three kinds of information to appear in the quarterly reports:

(a) a summary of the most important results of the workshops held so far,

(b) reactions of the research groups, and

(c) a statement by the Commission on the way in which it proposes to take account of these results in its subsequent work;

23. Calls on the Commission to act in the closest possible cooperation with the Parliament in every step taken towards developing a CFR; is of the opinion that Parliament should be formally consulted first on the draft structure and subsequently on each title or section of the CFR (depending on its final structure) as it is finalised, before it is ultimately consulted on the final instrument;

24. Calls on the Commission to consult Parliament before taking any further planning measures;

25. Calls on the Commission to allow the representatives of practice-based interests more time to prepare and discuss the complex substance of the work of the CFR-Net working groups;

26. Urges that the organisations which appear on behalf of the interest groups in the CFR-Net be able to decide for themselves which representatives take part in the meetings;

27. Instructs its Committee on Legal Affairs and its committees asked for their opinions on European contract law to continually follow the work of the Commission, the research groups and the Network and, where appropriate, to issue opinions on the results regularly issued by the Commission;

28. Urges each Council Presidency to organise a forum in cooperation with the Commission and the Parliament in which the progress and results of the procedure may be presented and discussed;

29. In order to give this ambitious and long-term project the visibility and attention which it warrants, undertakes to reflect carefully on how it should best be dealt with in Parliament itself, and accordingly suggests the setting-up of a parliamentary project team which should be properly resourced in order to deal with this long-term project over the period of the current parliamentary term and which should reflect the enhanced cooperation procedure between committees;

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30. Instructs its President to forward this resolution to the Council and the Commission.

[1] OJ C 158, 26.6.1989, p. 400.

[2] OJ C 205, 25.7.1994, p. 518.

[3] OJ C 140 E, 13.6.2002, p. 538.

[4] OJ C 76 E, 25.3.2004, p. 95.

[5] Network of those representing the interests of consumer organisations, industry, business and the legal profession (CFR-Net).

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