Communication from the Commission to the Council and the European Parliament on european contract law
Date: 2001-07-11
Institutions: European Commission
Subjects: EU law, contract, single market

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 11.07.2001
COM(2001) 398 final

COMMUNICATION FROM THE COMMISSION
TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

ON EUROPEAN CONTRACT LAW

Executive Summary

This Communication is intended to broaden the debate on European Contract law involving
the European Parliament, Council and stakeholders, including businesses, legal practitioners,
academics and consumer groups.

The approximation of certain specific areas of contract law at EC level has covered an
increasing number of issues. The EC legislator has followed a selective approach adopting
directives on specific contracts or specific marketing techniques where a particular need for
harmonisation was identified. The European Commission is interested at
this stage in
gathering information on the need for farther-reaching EC action in the area of contract law,
in particular to the extent that the case-by-case approach might not be able to solve all the
problems which might arise.

The Commission is seeking information as to whether problems result from divergences in
contract law between Member States and if so, what. In particular, the Communication asks
whether the proper functioning of the Internal Market may be hindered by problems in
relation to the conclusion, interpretation and application of cross-border contracts. Also the
Commission is interested in whether different national contract laws discourage or increase
the costs of cross-border transactions. The Communication also seeks 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.

If concrete problems are identified, the Commission would also like to receive views on what
form solutions should or could take. In order to assist in defining possible solutions, the
Communication includes a non-exhaustive list of possible solutions. Other solutions may be
suggested by any interested party, however.

–

–

–

–

To leave the solution of any identified problems to the market.

To promote the development of non-binding common contract law principles, useful
for contracting parties in drafting their contracts, national courts and arbitrators in
their decisions and national legislators when drawing up legislative initiatives.

To review and improve existing EC legislation in the area of contract law to make it
more coherent or to adapt it to cover situations not foreseen at the time of adoption.

to be adopted (regulation, directive or recommendation),

To adopt a new instrument at EC level. Different elements could be combined: the
nature of the act
the
relationship with national law (which could be replaced or co-exist), the question of
mandatory rules within the set of applicable provisions and whether the contracting
parties would choose to apply the EC instrument or whether the European rules apply
automatically as a safety net of fallback provisions if the contracting parties have not
agreed a specific solution.

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TABLE OF CONTENTS

1.

2.

3.

Introduction.............................................................................................................. 5

Purpose of the Communication................................................................................. 7

Present situation of contract law ............................................................................... 8

3.1.

Existing legislation ................................................................................................... 8

3.1.1.

International Instruments .......................................................................................... 8

3.2.

3.3.

3.4.

4.

4.1.

4.2.

4.3.

4.4.

4.5.

5.

Description of the Community acquis ....................................................................... 9

Implications for the Internal market ........................................................................ 10

Uniform application of Community law.................................................................. 11

Options for future EC initiatives in contract law ..................................................... 13

Option I: No EC action........................................................................................... 15

Option II: Promote the development of common contract law principles leading to
more convergence of national laws ......................................................................... 15

Option III: Improve the quality of legislation already in place................................. 16

Option IV: Adopt new comprehensive legislation at EC level................................. 18

Any other option..................................................................................................... 19

Conclusions............................................................................................................ 19

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1.

1.

2.

3.

4.

INTRODUCTION

recent years, discussion has

Over
substantive private law, in particular contract law1.

intensified on possible harmonisation of

The European Parliament has adopted a number of resolutions on the possible
harmonisation of substantive private law. In 1989 and 1994 the European Parliament
called for work to be started on the possibility of drawing up a common European
Code of Private Law2. The Parliament stated that harmonisation of certain sectors of
private law was essential to the completion of the internal market. The Parliament
further stated that unification of major branches of private law in the form of a
European Civil Code would be the most effective way of carrying out harmonisation
with a view to meeting the Community’s legal requirements in order to achieve a
single market without frontiers.

Furthermore, in its resolution of 16 March 2000 concerning the Commission`s work
program 2000, the European Parliament stated “that greater harmonisation of civil
law has become essential in the internal market” and called on the Commission to
draw up a study in this area3. In its reply of 25 July 2000 to the European Parliament,
the Commission stated that
it would “present a communication to the other
Community institutions and the general public with the aim of launching a detailed
and wide-ranging discussion, without losing sight of the date of 2001 set by the
European Council” at Tampere. The Commission also stated that “in view of the
importance of secondary legislation for the development of the internal market and
future commercial and technological trends, this communication will analyse this
legislation - in force or in preparation - at Community level in the relevant areas of
civil law in order to identify and assess any gaps, as well as the academic work
which has been or is being carried out”.

Indeed the conclusions of the European Council held in Tampere requested, in
paragraph 39,
‘as regards substantive law an overall study on the need to
approximate Member State’s legislation in civil matters in order to eliminate
obstacles to the good functioning of civil proceedings’4. A consultative document has
been announced in the Commission’s “scoreboard for the evaluation of progress in
the establishment of an area of freedom, security and justice”5. The Tampere
European Council dealt with issues concerning judicial civil cooperation on the basis
of title IV of the EC Treaty. In this regard this Communication can be considered as
a first step towards the implementation of the Tampere conclusions.

1 Cf. Ole Lando and Hugh Beale (eds.), Principles of European Contract Law Parts I and II, (Kluwer Law
International, 2000); Academy of European Private Lawyers, European Contract Code – Preliminary draft,
(Universita Di Pavia, 2001) hereafter referred to as “the Pavia Group”; the ‘Study Group for a European Civil
Code’. A comprehensive discussion, including a detailed bibliography, of the issues concerning civil law in
Europe can be found in Hartkamp, Hesselink, Hondius, Joustra, Perron (eds.), Towards a European Civil Code
(Kluwer Law International, 1998).
2. OJ C 158, 26.6.1989, p. 400 (Resolution A2-157/89); OJ C 205, 25.7.1994, p. 518 (Resolution A3-0329/94).
3. OJ C 377, 29.12.2000, p. 323 (Resolution B5-0228, 0229 – 0230 / 2000, p. 326 at point 28).
4. Presidency Conclusions, Tampere European Council 15 and 16 October 1999, SI (1999) 800.
5. COM(2000) 167, 24.3.2000, last updated in May 2001, see COM(2001) 278 final, 23.5.2001

4

5.

6.

7.

8.

Finally, this Communication was also included in the Commission communication
on E-Commerce and Financial Services6 within the policy area of ensuring coherence
in the legislative framework for financial services.

Leading representatives of the academic world have had detailed discussions on
harmonising certain sectors of contract law. Two drafts of a contract code7 and of
general principles of contract law8 have recently been published. This academic work
continues, and includes work on other issues not included in the two published drafts,
such as contracts in the specific areas of financial services, insurance contracts,
building contracts, factoring and leasing as well as some areas of the law of property.
In particular,
the academic work is focusing on areas that have a particular
significance for securing rights across the European borders.9

The aim of the academic work carried out varies from the establishment of a binding
code to principles similar to `restatements´ that can be used to provide reliable
comparative information on the European legal situation in these areas.

The approximation of certain specific areas of contract law at EC level has covered
an increasing number of issues. In the area of consumer law no fewer than seven
Directives dealing with contractual issues have been adopted in the period from 1985
to 199910. Other areas also show increased harmonisation.11

6. COM(2001) 66 final, 7.2.2001, p. 11.
7. The “Pavia Group” has recently published its “European Contract Code – Preliminary draft”, (Universita Di
Pavia, 2001) based on the work of the Academy of European Private Lawyers. This code contains a body of
rules and solutions based on the laws of members of the European Union and Switzerland and covers the areas of
contractual formation, content and form, contractual interpretation and effect, execution and non-execution of a
contract, cessation and extinction, other contractual anomalies and remedies.
8. The “Commission on European Contract Law” (which has received a major part of its subsidies from the
Commission of the EC) has published Principles of European Contract Law Parts I and II, edited by Ole Lando
and Hugh Beale (Kluwer Law International, 2000). These common principles for the countries of the European
Community concern the issues of formation, validity, interpretation and contents of contracts, the authority of an
agent to bind his principal, performance, non-performance and remedies. The book provides text proposals for
common rules and includes commentary and comparative analysis for each rule.
9 Another important ongoing academic exercise in this area is the « Study Group on a European Civil Code »
consisting of academic experts of the 15 Member States and some candidate countries. Their work concerns
areas like « Sales/Services/Long Term Contracts », « Securities », « Extracontractual Obligations » or « Transfer
of property on movable Goods » and includes a comparative research with the final objective of a fully
formulated and commented draft on the areas concerned.
10. Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of
the sale of consumer goods and associated guarantees (OJ L 171, 7.7.1999, p.12). Council Directive 93/13/EEC
of 5 April 1993 on unfair terms in consumer contracts (OJ L 95, 21.4.1993, p. 29). 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). 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). Council Directive 87/102/EEC of 22
December 1986 for the approximation of the laws, regulations and administrative provisions of the Member
States concerning consumer credit (OJ L 42, 12.2.1987, p. 48) as modified by Directive 90/88 (OJ L 61,
10.3.1990, p. 14) and Directive 98/7 (OJ L 101, 1.4.198, p. 17). 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). 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).
11. 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), 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 (OJ L 171, 17.7.2000, p. 1), Directive 2000/35/EC of

5

9.

2.

10.

11.

12.

13.

14.

This sectoral harmonisation has concerned specific contracts or specific marketing
techniques. Directives have been adopted where a particular need for harmonisation
was identified.

PURPOSE OF THE COMMUNICATION

The European Commission is interested at this stage of the discussion in gathering
information on the need for farther-reaching EC action in the area of contract law, in
particular to the extent that the case-by-case approach might not be able to solve all
the problems which might arise. This does not preclude the right of initiative of the
Commission in the future to make proposals for specific actions on contract law
aspects if a specific need for this exists, in particular on-going initiatives launched or
to be launched in the framework of the Internal Market policy.

The purpose of
this Communication is therefore to broaden the debate by
encouraging contributions from consumers, businesses, professional organisations,
public administrations and institutions, the academic world and all interested parties.
Part C examines the current situation of contract law, the reasons for its importance
in cross-border negotiations and problems of uniform application of EC law. Part D
presents a general framework for future EC policy in the area of contract law.

Contract law encompasses several areas of law. These are linked to Member States’
different cultural and legal traditions, but most Member States’ legal regimes for
contract law have similar concepts and rules. Contract law constitutes the principal
body of law regulating cross-border transactions and some Community legislation
regulating contract law already exists, although this legislation has taken a sector-by-
sector approach.

The areas concerned by this Communication include contracts of sale and all kind of
service contracts, including financial services12. General rules on performance, non-
performance and remedies are an indispensable basis for these contracts and are
therefore also covered. Additionally, rules on general issues such as the formation of
a contract and its validity and interpretation are also essential. Furthermore, because
of the economic context, rules on credit securities regarding movable goods as well
as the law of unjust enrichment may also be relevant. Finally, the aspects of tort law
linked to contracts and to its other features relevant to internal market should also be
taken into consideration insofar as they are already part of existing EC law.

In certain areas of private law, contracts are only one of the tools of regulation given
the complexity of the relationship between the parties concerned. These areas, such
as employment law and family law, give rise to particular issues and are not covered
by this Communication.

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), Council Directive 85/374/EEC of 25 of 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) as modified by the Directive 99/34/EC (OJ L 141, 4.6.1999, p. 20),
Directive 97/5/EC of the European Parliament and the Council of 27 January1997 on cross-border credit
transfers (OJ L 43, 14.2.1997, p. 25) should be noted as examples.
12. COM (2001) 66 final, 7.2.2001, p. 11.

6

15.

The Commission intends to focus the attention of this Communication on two areas:
firstly on possible problems resulting from divergences of national contract law, and
secondly on options for the future of contract law in the EC. This will enable the
Commission to define its future policy in this area and to propose any necessary
measures.

3.

PRESENT SITUATION OF CONTRACT LAW

3.1.

Existing legislation

3.1.1.

International Instruments

16.

17.

18.

19.

20.

International remedies offer solutions to certain potential problems related to
differences in national contract law. The first remedy is the application of uniform
private international rules to determine which law is applicable to the contract. The
most important of these rules is the 1980 Rome Convention13, ratified by all Member
States.

The rules of the Rome Convention apply to contractual obligations in any situation
involving a choice between the laws of different countries14. Under the Rome
Convention parties may agree on which national
the
Convention places limits on this choice of applicable law and determines which law
is applicable if no choice is made. Furthermore, the rules do not apply to areas
mentioned in Article 1 of the Convention (such as questions relating to the status or
legal capacity of natural persons or to insurance contracts which cover risks situated
in the territories of the Member States of the European Community).

law to apply. However,

The second remedy is the establishment of harmonisation of substantive law rules on
an international level. Here the most relevant instrument is the 1980 United Nations
Convention on contracts for the international sale of goods (the CISG), adopted by
all Member States except the United Kingdom, Portugal and Ireland.

The CISG establishes uniform rules for the international sale of goods, which apply
to sales contracts unless the parties state otherwise. Some areas are excluded from
the scope of the Convention, such as the sale of goods bought for personal, family or
household use and the sale of stocks, shares, investment securities or negotiable
instruments.

The Convention includes provisions dealing with the formation of a contract (offer
and acceptance of offer), and the rights and obligations of the seller and the buyer.
The Convention does not govern the validity of the contract or of its provisions, nor
does it cover the effect which the contract may have on the property in the goods
sold. The Convention also does not address the seller’s liability beyond the contract.

13. 1980 Rome Convention on the law applicable to contractual obligations (consolidated version) (OJ C 27,
26.1.1998, p. 34).
14 Alongside the convention there is also the Brussels Convention of 27 September 1968 on jurisdiction and the
enforcement of judgments in civil and commercial matters, as amended by Conventions on the accession of the
new Member States to that Convention. This determines which forum is competent to deal with a case. For all
Member States except Denmark this Convention is to be replaced as from 1 March 2002 by the Council
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (OJ L 12, 16.1.2001, p. 1).

7

3.1.2. Description of the Community acquis

21.

22.

3.2.

23.

24.

25.

26.

27.

Several Community acts include provisions harmonising private law. Certain
Directives specify rules on the conclusion of a contract, on the form and the content
the
of an offer and its acceptance and on the performance of a contract,
obligations of the contractual parties. Several Directives also specify in detail the
content of the information to be provided by the parties at different stages, in
particular before concluding a contract. Certain Directives cover
rights and
obligations of the contracting parties regarding the execution of a contract, including
poor execution and non-execution.

i.e.

A description of the most relevant Community acts regarding contract law is given in
Annex I. Annex II lists binding and non-binding international instruments relating to
substantial private law issues. Annex III is a structured presentation of the acquis
illustrating the extent to which legislation at Community level as well as the CISG
law of areas concerned by this
has already dealt with issues of contract
Communication.

Implications for the Internal market

The Commission would like to find out if the co-existence of national contract laws
in the Member states directly or indirectly obstructs to the functioning of the internal
market, and if so to what extent. If such obstacles do exist, the European Institutions
may be called upon to take appropriate action.

The EC Treaty has given the European Institutions powers to facilitate the
establishment and functioning of the internal market, in particular the free movement
of goods, persons, services and capital. This has allowed the European Community to
significantly reduce impediments for economic actors,
including manufacturers,
service providers, intermediaries and consumers, to operate throughout the EC and
beyond.

for
Technical developments, such as the possibilities offered by the Internet
electronic commerce, have made it easier
for economic actors to conclude
transactions over long distances. The introduction of the Euro as the common
currency of twelve of the Member States is also an important factor in facilitating
cross-border trade. However, in spite of the major successes achieved thus far,
certain problems still remain. Markets are not as efficient as they could and indeed
should be, to the detriment of all parties involved.

The exchange of goods and services, be it through sales, leasing or barter is governed
by a contract. Problems in relation to agreeing, interpreting and applying contracts in
cross-border trade may therefore affect the functioning of the internal market. Do
existing contract law rules meet the current and future needs of businesses and
consumers in the internal market, or is EC action required?

Generally, national contract
law regimes lay down the principle of contractual
freedom. Accordingly, contracting parties are free to agree their own contract terms.
However, each contract is governed by the laws and court decisions of a particular
state. Some of these national rules are not mandatory and contracting parties may
decide either to apply these rules or to agree different terms instead. Other national
rules, however, are mandatory, in particular where there is an important disparity

8

28.

29.

30.

31.

32.

33.

between the positions of the contracting parties, such as contracts with tenants or
consumers.

Normally these different national regimes do not create any problems for cross-
border transactions, as parties can decide which law will govern their contract. By
choosing one national law, they accept all the mandatory rules of that law, as well as
those non-mandatory rules which they do not replace by different terms. However,
conflicts may arise between mandatory rules of the laws in one country with
contradictory mandatory rules of another national law. These conflicts between
different mandatory rules may have a negative impact upon cross-border
transactions.

Although not required by national laws, certain clauses in contracts may result from
common practice in a given member state, especially if such practice has been
formalised in standard contracts. It may be hard to agree a contract containing terms
and conditions different from those generally applied in a particular member state.
There may be important economic or even legal reasons why it is hard or even
impossible for a party to agree to the terms and conditions in a standard contract that
is generally used in the other party’s member state. Yet, for similar reasons, it may
be hard for the latter party to accept the type of terms which are common practice in
the first party’s member state.

For consumers and SMEs in particular, not knowing other contract law regimes may
be a disincentive against undertaking cross-border transactions. This has been part of
the rationale for some existing Community acts aimed at improving the functioning
of the internal market. Suppliers of goods and services may even therefore regard
offering their goods and services to consumers in other countries as economically
unviable and refrain from doing so. In the field of subcontracting, the provisions
covering subcontracting and supply contracts are quite different in the different
Member States15. These differences may make it difficult for subcontractors – mostly
SMEs – to make cross-border agreements.

law rules may lead to higher

Moreover, disparate national
transaction costs,
especially information and possible litigation costs for enterprises in general and
SMEs and consumers in particular. Contractual parties could be forced to obtain
information and legal advice on the interpretation and application of an unfamiliar
foreign law. If the applicable law has been chosen in the contract, this applies to the
contractual party whose law has not been chosen. It applies to a minor extent also to
contracts where the parties have agreed standard contract terms in the cases where
these terms do not cover all possible problems.

These higher transaction costs may furthermore be a competitive disadvantage, for
example in a situation where a foreign supplier is competing with a supplier
established in the same country as the potential client.

The Commission is seeking contributions on how far issues described above create
problems for the internal market, and what other issues relating to contract law also
obstruct the functioning of the internal market.

15 Provisions range from a specific subcontracting law in Italy and a law on payment conditions to subcontractors
in France,
in Germany
to civil code provisions on contractual relations in most Member States (e.g.
subcontracting falls under a 1976 law on the general terms of business and under a few articles of the civil code).

9

3.3.

34.

35.

36.

37.

Uniform application of Community law

The European Community legislator must ensure consistency in the drafting of EC
legislation as well as in its implementation and application in the Member States.
The measures adopted by the European Community must be consistent with each
other, interpreted in the same manner and produce the same effects in all Member
States. The European Court of Justice (the ECJ) has stated that “the need for uniform
application of Community law and the principle of equality require that the terms of
a provision of Community law which makes no express reference to the law of the
Member States for the purpose of determining its meaning and scope must normally
be given an autonomous and uniform interpretation throughout the Community”16.

In the area of contract law the European legislator has taken a ‘piecemeal’ approach
to harmonisation. This approach combined with unforeseen market developments,
could lead to inconsistencies in the application of EC law. For example, under certain
circumstances17 it is possible to apply both the doorstep selling Directive and the
Timeshare Directive. Both Directives give the consumer a right of withdrawal;
is
however the time period during which the consumer can exercise this right
different. Although such cases of conflicts between rules are exceptional,
the
Commission would welcome information on problems resulting from possible
inconsistencies between EC rules.

Using abstract terms in EC law can also cause problems for implementing and
applying EC law and national measures in a non-uniform way. Abstract terms may
represent a legal concept for which there are different rules in each national body of
law18.

In general, differences between provisions in directives can be explained by
differences in the problems which those directives seek to solve. One cannot,
therefore, require that a term used to solve one problem is interpreted and applied in
precisely the same manner in a different context. However, differences in terms and
concepts that cannot be explained by differences in the problems being addressed
should be eliminated.

38.

In addition, domestic legislation adopted by Member States to implement EC
directives refers to domestic concepts of these abstract terms. These concepts vary

16. Case C-357/98 The Queen v. Secretary of State for the Home Department ex parte: Nana Yaa Konadu
Yiadom [2000] ECR-9265, at para. 26. Cf. also Case C-287/98 Luxemburg v. Linster [2000] ECR-6917, at para.
43; Case C-387/97 Commission v. Greece [2000] ECR-5047; Case C-327/82 Ekro v Produktschap voor Vee en
Vlees [1984] ECR I - 107, at para. 11. The principle of uniform application also applies in the area of private law
Ikonomikis
cf. Case C-373/97 Dionisios Diamantis v. Elliniko Dimosio (Greek State), Organismos
Anasinkrotisis Epikhiriseon AE (OAE) [2000] ECR I-1705, at para. 34; Case C-441/93 Pafitis and Others v. TKE
and Others [1996] ECR I-1347, at para. 68 to 70.
17. Cf. Case C–423/97, Travel-Vac S.L. and Manuel José Antelm Sanchís [1999] ECR I–2195.
18. These matters have recently been examined by a EP study, drafted by a team of high ranking independent
legal experts. It states with regard to the example of the term “damage” that: ‘The European laws governing
liability do not yet have even a reasonably uniform idea of what damage is or how it can be defined, which
naturally threatens to frustrate any efforts to develop European directives in this field’;European Parliament, DG
for Research: ‘Study of the systems of private law in the EU with regard to discrimination and the creation of a
European Civil Code’ (PE 168.511, p. 56). Some Directives (Art. 9 of Directive 85/374/EEC, Art. 17 of
Directive 86/653/EEC) contain differing definitions of the term «damage». Each definition, however, is intended
solely for the purpose of each respective Directive. Other Directives (Art. 5 of Directive 90/314/EEC) use the
term without defining it.

10

39.

40.

4.

41.

42.

significantly from one Member State to another.19 The absence of a uniform
understanding in EC law of general terms and concepts at least in specific or linked
areas) may lead to different results in commercial and legal practice in different
Member States. 20

This kind of problem does not only apply to horizontal questions concerning general
terms of contract law as mentioned above. It is also relevant to specific economic
sectors.21

The Commission is reflecting whether – in order to avoid the kind of problems
described above -
the necessary consistency could be ensured through the
continuation of the existing approach or should be improved through other means.
The Commission is therefore interested in receiving information on practical
problems relating to contract law resulting from the way that EC rules are applied
and implemented in the Member States.

OPTIONS FOR FUTURE EC INITIATIVES IN CONTRACT LAW

Responses to this document may show that there are impediments to the functioning
of the internal market for cross border transactions. If these problems cannot be
solved satisfactorily through a case-by-case approach, a horizontal measure
providing for comprehensive harmonisation of contract law rules could be envisaged
at EC level. However, there are of course limits on the power of the Commission and
the other EC institutions to intervene in this area.

Any measure must be in accordance with the principles of subsidiarity and
proportionality, as described in Article 5 of the EC Treaty and the protocol on
subsidiarity and proportionality. As the European Parliament pointed out
in its
resolutions on the Better Lawmaking reports22, the subsidiarity principle is a binding
legal standard that does not rule out the legitimate exercise of the EU's competencies.
The need to achieve balanced application of this principle has been highlighted by a
number of Member States23 and the European institutions.

19. This problem is highlighted by a case pending with the ECJ (C–168/00, Simone Leitner/TUI Deutschland
GmbH & Co KG). On the basis of a package travel contract concluded under Austrian law with a German tour
operator, the complainant seeks compensation for ‘moral damages’ (unrecoverable holiday spent in hospital).
Austrian law does not grant compensation for this kind of damage, but the laws of Germany and some other
Member States do. The complainant points at Article 5 of the Package Travel Directive, saying that this Article
establishes a specific concept of ‘damage’ that includes ‘moral damage’.
20. The Commission has emphasised for example in its report on the application of the Commercial Agents
Directive (COM (1996) 364 final, 23.7.1996) that the application of the system of compensation for damage
foreseen in the Directive concerning the same factual situation produces completely different practical results in
France and the UK due to different methods of calculation for the quantum of compensation.
21. The problem referred to here also exists outside the contract law area. Thus in its report on the Regulation of
European Securities Markets, the Committee of Wise Men led by Alexandre Lamfalussy pointed to problems
resulting from the use in certain directives in the financial area of ambiguous notions, which allowed member
states to apply these directives in a disparate manner. Final Report, Brussels, 15.2.2001, Annex 5 (Initial Report
of 9. 11.2000).

22. COM (2000) 772 final, 30.11.2000, p. 3.
23. COM (2000) 772 final, 30.11.2000, p. 3.

11

43.

44.

45.

The principle of subsidiarity serves as a guide as to how the Community powers are
to be exercised at Community level. Subsidiarity is a dynamic concept and should be
applied in the light of the objectives set out in the Treaty. It allows Community
action within the limits of its powers to be expanded where circumstances so require,
and conversely, to be restricted or discontinued where it is no longer justified24.
There should be clear benefits to taking action at Community level instead of
national
the EC,
Community-level action is undoubtedly the best way of ensuring homogeneous
treatment within national systems and stimulating effective co-operation between the
Member States.

level. Where the intention is to have an impact

throughout

Moreover, legislation should be effective and should not
impose any excessive
constraints on national, regional or local authorities or on the private sector,
including civil society. The principle of proportionality, which is one of the general
principles of Community law, requires that measures adopted by Community
institutions do not exceed the limits of what is appropriate and necessary in order to
attain the objectives legitimately pursued by the legislation in question; when there is
a choice between several appropriate measures recourse must be had to the least
onerous, and the disadvantages caused must not be disproportionate to the aims
pursued25. Clearly, the Commission is duty-bound to propose whatever measures are
necessary to supplement Member States’ efforts to achieve the Treaty’s objectives.
The Commission follows two criteria designed to guarantee that fixed objectives are
complied with in both political and legal terms: the ability of national and regional
authorities, and of civil society, to act to achieve the objectives laid down in a
Community provision; and the compatibility or conformity of these objectives with
national or sectoral practices26.

Preparing legislative proposals by way of communications and green and white
papers is one way of consulting the private sector, civil society and institutions at all
levels on the expediency, level and content of legislative instruments in order to
achieve these objectives. Additionally, the Commission will seek to identify areas of
intervention by involving both civil society and business with a view to producing
legislative instruments geared to users’ real needs. This Communication and possible
further documents are intended to determine whether EC action is needed and if so in
which areas.

46.

There are a number of options that can be considered should the case-by case
approach not fully solve the problem. This Communication briefly examines four
possible scenarios:

I. no EC action;

II. promote the development of common contract law principles leading to more

convergence of national laws;

24. See Protocol on the application of the principles of subsidiarity and proportionality (OJ C 340, 10.11.1997, p.
105).
25. Case C-331/88 Fedesa [1990] ECR-4023 at para. 13; Case c-133/93, C-300/93 and C-362/93 Crispoltoni
[1994] ECR-4863 at para. 41; Case C-157/96 The Queen v Ministry of Agriculture, Fisheries and Food,
Commissioners of Customs & Excise, ex parte : National Farmers’ Union [1998] ECR-2236 at para. 60.
26. COM (2000) 772 final, 30.11.2000, p. 8 - 9.

12

47.

48.

4.1.

49.

50.

51.

III. improve the quality of legislation already in place;

IV. adopt new comprehensive legislation at EC level.

There are other options beyond these, and these options could also be combined.
These options may cover the field of contract law or other fields within private law.
Each option could be used for specific economic sectors or apply horizontally. The
binding character of a measure would depend on the area to which the measure
applied and all the interests at stake. However, as a matter of principle, all options
should allow contracting parties the freedom they need to conclude the contract
terms best suited to their specific needs.

Another approach, which is not discussed here as it goes beyond the level of a
European initiative, could be the negotiation of an international treaty in the area of
contract law. This would be comparable to the CISG but with a broader scope than
purely the sale of goods. However, the provisions of the CISG could also be
integrated into options II and IV which would increase their acceptance in
commercial and legal practice.

Option I: No EC action

In many cases the market creates problems of public concern, but it also develops its
own solutions. The effectiveness of the market in responding to different social
values and to public opinion should not be underestimated. As a result of competitive
behaviour, many of the problems created by the market may be solved automatically
by the pressure exercised by the interest groups involved (consumers, NGOs,
enterprises). Public authorities can enhance this coincidence of self-interest and
public interest.

Different incentives by Member States and trade associations e.g. offering assistance
and advice on cross border transactions can efficiently channel the market in a
specific direction (for example speed up the use of new technologies or encourage
new types of commercial practices). These could compensate for economic and
psychological risks of cross-border trade activity, whether these risks are perceived
or real. Different services from economic operators can efficiently overcome
problems of cross border transactions that have been identified. For example, trade
associations could offer assistance or advice to SMEs.27

Economic developments, in particular the increasing integration of markets into a
genuine internal market, also create incentives for national policymakers and
legislators to look for solutions to problems with contracts involving parties in other
Member States. This could result in a certain degree of “soft harmonisation” - not
driven by binding EC rules, but coming about as a result of economic developments.

contractual problems

through voluntary agreements on cross-border model

27. Below are two examples of national/industry associations’ initiatives that aim at providing a solution for
cross-border
contracts:
-In 1999 a group of six German industry federations, the so-called working group of the components supply
industry, agreed on a set of minimum clauses for cross-border contracts. However, this model applies to cross-
border contracts ruled exclusively by German law (the contractual parties must agree to rule the cross-border
contract in question under German law) and includes provisions on prices, confidentiality, moulds, equipment,
industrial
etc.
- Also ORGALIME (European group of the mechanical, electrical, electronic and metalworking industries)
issued a model for international “consortium agreement” to foster cross-border inter-enterprise co-operation.

guarantee,

property

liability,

damage,

product

rights,

13

4.2.

52.

53.

54.

55.

This could solve some of the problems for intra-community trade, provided that there
is a genuine and fair free choice of law for contracting parties, full, correct and freely
available information about the existing rules and practices and fair and affordable
alternative dispute resolution mechanisms.

Option II: Promote the development of common contract law principles leading
to more convergence of national laws

In order to achieve more convergence of national contract laws, one solution would
be for the Commission to promote comparative law research and co-operation
between – amongst others – academics and legal practitioners (including judges and
experts) . This co-operation could aim to find common principles in relevant areas of
national contract law. The existing work in this area could be used and developed,
including the results of academic studies and conclusions drawn in international
academic forums. The framework for this research and co-operation could be a kind
of partnership, in which the EC institutions – and more particularly the Commission
– could play a co-ordination role. In the field of trans-national contracts, some
common solutions, principles or even sets of rules could be defined.

The outcome of these discussions could vary from common principles to the drafting
of guidelines or specific codes of conduct for certain types of contracts. The common
principles could be useful for contractual parties at
the drafting stage of new
contracts, as well as for the execution of contracts. They could also be useful for
issues – especially
national courts and arbitrators who have to decide legal
concerning cross-border cases - which are not fully covered by binding national rules
or where no legislative rules exist at all. The courts or arbitrators would know that
the principles they were applying represented the solution common to all the national
contract law systems in the EU. At the same time common principles could help
national courts which have to apply foreign law to have a basic understanding of the
underlying general principles of law. The guidelines could be followed as much as
possible by Member States or the EC when issuing new legislation or adapting old
legislation in the area of contract national law.

The application of common principles could even lead to the creation of customary
law provided that there is a long and continued application and a commonly shared
conviction. This might influence or even change existing commercial practice in the
Member States that could create impediments to the full functioning of the internal
market.

Once those common principles or guidelines were established and agreed upon by all
interested parties in the Member States, broad dissemination should be ensured
amongst those who would be supposed to apply them. This would ensure coherent
and uniform application of the common principles or guidelines. These common
principles or guidelines could however only be applied on a voluntary basis. If this
were indeed done continuously by a sufficiently large number of legal practitioners
as well as EC and national legislators, this would bring about greater convergence in
the area of European contract law. However, for this option to be meaningful, it is
clear that the common principles should be defined in such a way as to meet all
legitimate requirements.

56.

Another solution could concern standard contracts. In order to facilitate economic
transactions a large number of standard contracts are in use in all Member States.

14

Such standard contracts spare parties the need to negotiate the contract-terms for
every single transaction. They also provide a degree of certainty to parties and obtain
almost semi-regulatory status. It is precisely for this reason that it is often difficult to
agree a contract with a party in another Member State which does not comply with
the standard contract terms that the other party is used to. Parties from different
Member States may indeed be used to different terms which are in standard use in
their
in conformity with
Community law, if standard contracts were developed for use throughout the EC.
The Commission could promote the development of such standard contracts by
interested parties.

respective states. These problems could be solved,

Option III: Improve the quality of legislation already in place

The Lisbon European Council has asked the Commission, the Council and the
Member States “to set out by 2001 a strategy for further co-ordinated action to
simplify the regulatory environment”. Answering to this request, the Commission
has given an initial response through an Interim Report to the Stockholm European
Council28 which takes stock of the situation and sets out the Commission’s initial
thoughts on putting the Lisbon mandate into practice.

Improving the quality of legislation already in place implies first modernising
existing instruments. The Commission intends to build on action already undertaken
on consolidating, codifying and recasting29 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 moreover be systematically focused on
simplifying and clarifying the content of existing legislation30. Finally,
the
Commission will evaluate the effects of Community legislation and will amend
existing acts if necessary31.

Where appropriate, directives could be subject to simplification of their provisions.
In fact, for several years now, the EC has been pursuing a policy of simplifying
Community legislation. The SLIM initiative32 (simpler legislation for the internal
market) remains one of the most ambitious examples of the ongoing simplification
work. Simplification exercises33 could be used to improve the quality, reduce the

4.3.

57.

58.

59.

28. Interim Report from the Commission to the Stockholm European Council «Improving and simplifying the
regulatory environment» - COM (2001) 130, 7.3.2001.
29. Cf. Interim Report, - COM (2001) 130, 7.3.2001, p. 10.
30. Cf. Interim Report, - COM (2001) 130 , 7.3.2001, p.10.
31. Cf. Interim Report, - COM (2001) 130, 7.3.2001, p. 9.
32. The SLIM (Simpler Legislation for the Internal Market) pilot project – This project was introduced in 1996 as
an initiative for improving the quality of Internal Market legislation, for counteracting superfluous legislation
and for limiting the costs associated with implementing. SLIM attempts to focus attention on specific issues and
is not meant to advocate deregulation. The work is extremely targeted, in order to be run in a limited period of
time, and focused on making precise recommendations.
The European institutions have agreed that simplification ought not
to encroach on the so-called acquis
communautaire. In essence, simplification is to be prevented from acting as a passkey to calling in question
again harmonisation reached in sectors like health protection, worker and consumer protection, environmental
policy and free trade. Simplification - this is the idea - should become a resource for completing the internal
market, not for dismantling it.
33.* The BEST (Business Environment Simplification Task Force) - In 1997 the Commission also set up the
Business Environment Simplification Task Force (BEST). This task force submitted a report containing 19

15

60.

4.4.

61.

62.

63.

64.

volume of existing regulatory instruments, and, at the same time remedy possible
inconsistencies or even contradictions between legal instruments.

Moreover, a further improvement would be to adapt the substance of existing legal
instruments where necessary34 before adopting new ones. For instance, the scope of
application of various directives should be extended if necessary and if appropriate to
those contracts or transactions which have many similar features with those covered
by the directive but, for various reasons, were in not included in the scope of
application of the directive at the moment of its adoption. This would ensure greater
coherence within a well-defined sector of activities or type of transactions35. Along
the same lines, reasons why different solutions are given to similar problems in the
context of different directives should be re-examined.

Option IV: Adopt new comprehensive legislation at EC level

Another option would be an overall text comprising provisions on general questions
of contract law as well as specific contracts. For this option, the choice of instrument
and the binding nature of the measures need to be discussed.

The choice of instrument depends on a number of factors, including the degree of
harmonisation envisaged.

A Directive would, on one hand, give Member States a certain degree of flexibility to
adapt the respective provisions of the implementation law to their specific national
economic and legal situation. On the other hand,
it may allow differences in
implementation which could constitute obstacles to the functioning of the internal
market.

A Regulation would give the Member States less flexibility for its integration into the
national legal systems, but on the other hand it would ensure more transparent and
uniform conditions for economic operators in the internal market.

recommendations in 1998. These focused on the business environments in the Member States in a wide variety
of fields.
* The Action Plan for the Single Market - The Action Plan was launched in 1997, listing four strategic
objectives: making the rules more effective, dealing with market distortions, removing barriers to market
integration, and finally ensuring an internal market that benefits all citizens of the Union.
* The “state of the art” on simplification in the “better law-making” reports - Each year, since 1995, the
Commission publishes a report on "better lawmaking" in which it reports also on the contribution it has made to
simplifying EU rules.
* The Interinstitutional Agreement on drafting quality – This agreement was published in March 1999, following
on from the Treaty of Amsterdam and is binding upon the Commission, the Council and the European
Parliament.
34. The above-mentioned ‘Study of the systems of private law in the EU with regard to discrimination and the
creation of a European Civil Code’, launched by the European Parliament states in general terms that ‘The
existing rules enshrined in the agreements and directives need to be systematically gone over with a fine-tooth
comb, incorporated into national law where necessary, supplemented in content and refined in form. They must
be co-ordinated and dovetailed with each other, cleansed of all redundant regulation,
inconsistency and
terminological insularity, so that they can ultimately be fitted into a systematically coherent structure, into the
‘overall picture’ of a codified system.’
35. A limited scope of application is typical for many directives (e.g.: Directives 85/577 on Doorstep Selling : not
covered are insurance contracts, contracts on real estate, construction, … ; 97/7 on Distance Contracts: not
covered are contracts on real estate, construction,… ; 94/47 on Timesharing Contracts: covered are only
contracts with a minimum term of 3 years, Directive 2000/35/EC on combatting late payment in commercial
transactions: transactions with consumers are not covered.

16

65.

66.

67.

68.

69.

4.5.

70.

5.

71.

A Recommendation could only be envisaged if a purely optional model is chosen.

Concerning the binding nature of the measures to be proposed,
approaches, which can also be combined, are:

the following

a) A purely optional model which has to be chosen by the parties. An example would
be a Recommendation36 or a Regulation37 which applied when the parties agree that
their contract was to be governed by it.

b) A set of rules which would apply unless their application were excluded within the
contract. This kind of legislation already exists in the context of the late payments
directive38 or in the CISG39. This approach would create fall-back provisions where
the contracting parties are free to agree on other solutions by way of contract, i.e. the
application of a co-existing national law or contract-specific solutions. It would
ensure that contractual parties keep complete contractual freedom to define the
content of the contract. At the same time it would represent a “safety net” which
would only apply if no specific contractual provisions were in place.

c) A set of rules whose application cannot be excluded by the contract.

The third approach would replace existing national law, while the first would co-
exist with national law. The second approach could co-exist with national law or
replace it.

Each applicable set of rules could distinguish between mandatory and non-
mandatory rules.

A combination of the above-mentioned second and third option could, for instance,
be envisaged in areas of law like consumer protection where, besides a general and
automatically applicable set of fall-back provisions, some mandatory provisions
which cannot be waived by the contracting parties still apply.

Any other option

As indicated above,
Therefore,
effective solutions to the problems identified.

the list of options is not exhaustive but only indicative.
the Commission welcomes any other suggestions for efficient and

CONCLUSIONS

The purpose of this Communication is to initiate an open, wide-ranging and detailed
debate with the participation of the institutions of the European Community as well
as of the general public, including businesses, consumer associations, academics and

36. Cf. for example Article 1 :101 (2) of the Principles of European Contract Law (see footnote 1, p. 2).
37. An example could be the “Council Regulation on the Statute for a European Company (SE)” on which the
Council adopted a political orientation on 20 December 2000 (Council document 14.886-00, 1.2.2001).
38. Article 3(1)(b) of Directive 2000/35/EC provides for specific criteria for defining the date as of which interest
shall become payable, if the date or period for payment is not fixed in the contract (30 days following the date of
receipt by the debtor of the invoice or 30 days after the date of receipt of the goods or services). Article 3(1)(d)
provides for a “statutory interest rate” to be paid, unless otherwise specified in the contract.
39. Cf. Article 6 CISG.

17

legal practitioners. In the light of the feedback received, the Commission will, within
its right of initiative, decide on further measures.

72.

73.

In particular the Commission would like to have views on problems for the
functioning of the internal market resulting from the co-existence of different
national contract laws. To be the most useful, such information should be as
specific as possible. Ideally, it should include concrete examples of cases in
which differences between the contract laws of the Member States have made
intra-community trade more onerous or even impossible for manufacturers,
service providers, traders or consumers. This may include cases in which sellers,
businesses or consumers have incurred substantial additional costs as a result of
differing legal requirements in Member States.

Moreover, the Commission is keen to receive feedback on which of the possible
options explained in part D (or other possible solutions) would be the most
identified in the present
appropriate in order to solve the problems
Communication.

All parties that wish to contribute to the debate are requested to send their contribution – by
if possible in electronic form to
15 October 2001. These contributions should be sent
European-Contract-Law@cec.eu.int, or otherwise in writing to the European Commission,
Rue de la Loi 200, 1040 Brussels. Each contribution should be marked “Communication on
European Contract Law”. In order to stimulate a real debate on the issue, the Commission has
under
published
http://europa.eu.int/comm/off/green/index_en.htm. Incoming contributions will be published
on the same website if senders request.

this Communication

the Commission’s

Europa website

on

18

ANNEX I
IMPORTANT COMMUNITY ACQUIS IN THE AREA OF PRIVATE LAW

General Remarks

The purpose of
the following non-exhaustive presentation is to describe the acquis
communautaire that is relevant to private law, in particular to contract law. The objectives of
some directives are clearly aimed towards the harmonisation of national contractual rules.
Other directives have a more indirect effect on these rules.

1.

CONSUMER CONTRACT LAW

General comments

This section shows that among the lacunas relating to EC Directives concerning contract law
there is an absence of any reference to the formation of a contract and the sanctions that will
apply in case of the non-adherence to obligations in the Directives concerning pre-contractual
information.

1.1.

Sale of consumer goods and associated guarantees

Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on
certain aspects of the sale of consumer goods and associated guarantees

Objective

Ensure consumer protection and strengthen consumer confidence in cross-border shopping by
laying down a common set of minimum rules valid no matter where the goods are purchased.

Content

Directive 1999/44/EC harmonises the notion of lack of conformity of consumer goods with
the contract, the consumers’ rights in the case that the consumer buys a defective product and
the conditions under which the consumer can exercise these rights. Consumer goods are
defined, with exceptions, as any tangible movable item (Article 1(2)(b)). These must be in
conformity with the contract of sale (Article 2(1)). Article 2(2) contains presumptions when
consumer goods are deemed to be in conformity with the contract.

The seller is liable to the consumer for any lack of conformity that exists when the goods are
delivered to the consumer that become apparent within a period of two years (Article 5(1)),
unless at the moment of conclusion of the contract of sale the consumer knew or could not
reasonably be unaware of the lack of conformity (Article 2(3)). Any lack of conformity
becoming apparent within six months of delivery will be presumed to have existed at the time
of delivery, unless proof to the contrary is furnished or this presumption is incompatible with
the nature of the goods or the nature of the lack of conformity (Article 5(3)).

Upon a lack of conformity notified to the seller, the consumer is entitled to ask for the goods
to be repaired or replaced free of charge within a reasonable period and without considerable
is impossible or
inconvenience to the consumer (Article 3(2)). If repair or replacement
disproportionate, or if the seller has not remedied the lack of conformity within a reasonable
period of time or without major inconvenience to the consumer, the consumer may ask for an
appropriate reduction to be made to the price (Article 3(5)). Alternatively, where the lack of

19

conformity is not minor, the consumer may request that the contract be rescinded (Article
3(6)).

When the final seller is liable to the consumer because of a lack of conformity the final seller
will be entitled to pursue remedies against the person responsible, under the terms of national
law. The lack of conformity, however, must result from an act of commission or omission by
the producer, a previous seller in the same chain of contracts or any other intermediary
(Article 4).

Any guarantee40 will be binding as per the terms set down in the guarantee, written contract or
the associated advertising (Article 6(1)). Further, the guarantee must feature in a written
document, freely available for consultation before purchase showing in particular the duration
and territorial scope of the guarantee, and the name and address of the guarantor (Article 6(2)
and 6(3)). Where such a guarantee is offered and it does not conform to the provisions
contained in the Directive the consumer may still require the guarantee to be honoured
(Article 6(5)). Contractual terms or agreements waiving or restricting the rights resulting from
the Directive are not binding on the consumer (Article 7(1)).

1.2.

Unfair terms in consumer contracts

Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts

Objective

To eliminate unfair terms from contracts drawn up between a professional and a consumer.

Content

to

contractual

non-negotiated

93/13/EEC applies

Directive
terms
non-mandatory,
incorporated in contracts drawn up between a professional and a consumer (Article 1). A non-
negotiated term is unfair when it establishes a significant
imbalance, to the consumer’s
detriment, between the rights and obligations of the contracting parties (a list of unfair terms
is annexed to the Directive) (Article 3). An allegedly unfair contractual term is assessed in the
light of the nature of the goods or services covered by the contract, the circumstances in
which the contract is drawn up and other terms in the contract or in another contract to which
it relates (Article 4). Where there is doubt as to the meaning of a term, the interpretation most
favourable to the customer will prevail (Article 5). In all cases, such contractual terms found
to be unfair will not bind the consumer (Article 6).

1.3.

Package travel, package holidays and package tours

Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and
package tours

Objective

To approximate the laws, regulations and administrative provisions of the Member States
concerning package travel, package holidays and package tours sold or offered for sale in the
territory of the Community.

40 Any additional undertaking given by a seller or producer over and above the legal rules governing the sale of
consumer goods offered by the seller or producer.

20

Content

Directive 90/314/EEC applies to the sale of a pre-arranged combination of transport,
accommodation and or other tourist services not ancillary to transport or accommodation and
accounting for a significant proportion of the package. For the Directive to be applicable it is
necessary that two or more of these elements are sold or offered for sale at an inclusive price
and the service covers a period of more than twenty-four hours or includes over-night
accommodation.

Any brochure made available to the consumer must indicate clearly and accurately the price,
destination, itinerary and the means of transport used, type of accommodation, meal plan,
passport and visa requirements, health formalities, timetable for payment and the deadline for
informing the consumer in the event of cancellation (Article 3). Information contained in the
brochure becomes part of the contract (Article 3). Further, before conclusion of a contract the
organiser is required to provide, in writing, certain information regarding passports, visas
(periods for obtaining them) and health formalities (Article 4).

The organiser of the package must supply in writing the times and places of intermediate
stops, details of the place to be occupied by the traveller, the name address and telephone
number of the organiser’s local representative or, failing that, an emergency telephone
number. There are additional details that must be provided where the journey is to involve the
transport of a minor as well as information on optional contracts covering insurance or
assistance (Article 4(1)). The consumer may transfer his / her booking to another person
(Article 4 (3)).

The price stipulated in the contract may only be changed if this is expressly provided for in
the contract and variations in price may only reflect changes in exchange rates, transportation
costs, taxes or fees chargeable(Article 4(4)). Significant alterations to the contract entitle the
consumer to withdraw from the contract without penalty and, should the consumer withdraw,
he is entitled to reimbursement of the sums paid (Article 4(6)). The organiser is responsible
for the failure to perform or the improper performance of the contract and, where appropriate,
the consumer is entitled to compensation for the non-performance of the contract (Article
4(7)).

Member States shall take the necessary steps to ensure that the organiser and/or retailer party
to the contract is liable to the consumer for the proper performance of the obligations arising
from the contract. The organiser and/or retailer is/are liable for any damage arising from
failure to perform or improper performance provided that failure to perform or improper
performance is attributable to fault of theirs or another supplier of services. The quantum of
damage may be limited in accordance with the international conventions. Where damage
results that is not of the nature of personal injury a reasonable contractual limitation can be
placed on the quantum of compensation for this damage (Article 5).

The consumer must communicate any failure in the performance of a contract which he
perceives on the spot to the supplier of the services concerned and to the organiser and/or
retailer in writing or any other appropriate form at the earliest opportunity. This obligation
must clearly and explicitly stated in the contract (Article 5). In cases of complaint, the
organizer and/or retailer or his local representative, if there is one, must make prompt efforts
to find appropriate solutions (Article 6).

21

1.4.

Contracts negotiated away from business premises

Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect
of contracts negotiated away from business premises

Objective

To protect consumers against dishonest business practices in connection with contracts
negotiated away from business premises.

Content

€

Directive 85/577/EEC applies to contracts, involving a payment of over
60 (Article 3),
entered into between a trader and a consumer during an excursion organised by the trader
away from his business premises. The Directive is also applicable to contracts entered into
during a visit by a trader to a consumer’s home or place of work. Provided the visit does not
take place at the express wish of the consumer or, where the consumer requested the visit, the
consumer could not have known the extent of the trader’s commercial activities the Directive
is applicable. Finally, the Directive also applies to contracts in respect of which the consumer
makes a contractual or non-contractual offer to receive a visit from or take part
in an
excursion organised by a trader (Article 1). The trader is required to inform consumers in
writing about their right to cancel the contract (Article 4). Once informed, consumers have
seven days within which to exercise this right of cancellation (Article 5).

1.5.

Consumer credit

Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws,
regulations and administrative provisions of the Member States concerning consumer
credit as modified by Directive 90/88/EEC and 98/7/EEC

Objective

To harmonise the rules governing consumer credit while ensuring a high level of consumer
protection.

Content

Directive 87/102/EEC applies to credit agreements whereby a creditor grants a consumer
credit in the form of a delayed payment, a loan or a similar financial arrangement (Article 1).
Credit agreements are to be made in writing incorporating the essential terms of the contract
including a statement of the annual percentage rate of charge and the conditions under which
this may be amended (Article 4).

When credit
is advanced on a current account other than on credit card accounts, the
consumer has only to be informed of certain matters in writing at or before the time the
agreement is concluded. In particular, the consumer must be informed of the credit limit (if
there is one), the annual rate of interest and charges applicable and any changes thereof and
the procedure for terminating the agreement (Article 6). Where there is a consumer credit
agreement granted for the acquisition of goods with a right of repossession granted to the
lay down the conditions under which the goods may be
creditor, Member States must
repossessed and ensure there is no unjustified enrichment (Article 7).

22

Under a consumer agreement, where a consumer has discharged his or her obligations before
the due date, the consumer is entitled to an equitable reduction in the cost of the credit
(Article 8). Consumer rights are to remain unaffected by any assignation to a third party
(Article 9). The Member State must also ensure further consumer safeguards. These
safeguards include protection if the consumer uses bills of exchange, promissory notes and
cheques for making payments or giving securities (Article 10). Also, under certain conditions,
there is a right of redress against the grantor of credit when the consumer has purchased goods
or services under a credit agreement from a person other than the creditor and the goods or
service are not supplied or are not in conformity with the contract. This right is in particular
available only if the consumer has sought redress against the supplier but failed to obtain
satisfaction (Article 11).

1.6.

Distance contracts

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

Objective

To approximate the laws, regulations and administrative provisions of the Member States
concerning distance contracts between consumers and suppliers by laying down a common set
of minimum rules.

Content

Directive 97/7/EC applies to any contract (‘distance contract’) concerning goods or services
concluded between a supplier and a consumer under an organised distance sales or service-
provision scheme run by the supplier. For Directive 97/7/EC to be applicable, the supplier, for
the purpose of the contract, must make exclusive use of one or more means of distance
communication up to and including the moment at which the contract is concluded (Article
2(1)).

Prior to the conclusion of a distance contract, the consumer must be provided with clear and
comprehensible information, complying with the principles of good faith in commercial
transactions. In particular, this information must state: The identity and, possibly, the address
of the supplier; the characteristics of the goods or services and their price; delivery costs; the
arrangements for payment and delivery or performance;
the existence of the right of
withdrawal; the period for which the offer or the price remains valid and the minimum
the cost of using the means of distance
duration of the contract, where applicable,
communication. Where dealings are by telephone, the identity of the caller and commercial
purpose of the call must be made clear at the beginning (Article 4).

The consumer must receive written confirmation or confirmation in another durable medium
(electronic mail) at the time of performance of the contract. The following information must
also be given in writing: arrangements for the exercise of the right of withdrawal; the place to
which consumer complaints are to be addressed; information relating to after-sales service;
conditions under which the contract may be rescinded (Article 5).

The consumer has the right of withdrawal with regard to most distance contracts. Where the
supplier has met his obligations relating to the provision of information, the consumer has at
least seven working days to cancel the contract without penalty. Where the supplier has failed
to meet his obligations concerning information, this period is extended to three months

23

(Article 6(1)). The supplier is obliged to repay the amounts paid by the consumer within thirty
days after the exercise of the right of withdrawal (Article 6(2)).

In principle, the supplier has thirty days in which to perform the contract (Article 7(1)).
Where the supplier fails to perform his side of the contract, the consumer must be informed
and any sums paid refunded (Article 7(2)). In some cases it is possible to supply substitute
goods and services. Member States shall ensure that appropriate measures exist to allow a
consumer to request cancellation of a payment where fraudulent use has been made of his
payment card in connection with distance contracts covered by this Directive 97/7/EC. In the
event of fraudulent use of a payment card, the consumer is to be credited with the sums paid
or have them returned (Article 8).

Where unsolicited goods are supplied, the consumer’s failure to reply does not constitute
consent (Article 9). The use of an automatic calling machine or facsimile machine by a
supplier to communicate with a consumer requires the prior consent of the consumer. Other
means of distance communication that allows individual communication may be used only
where there is no clear objection from the consumer (Article 10).

Public bodies, consumer and professional organisations may take action before the courts or
competent administrative bodies in the event of disputes. (Article 11).

1.7.

Timeshare immovable property

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

Objective

To approximate laws, regulations and administrative provisions of the Member States on the
protection of persons who purchase the right to use immovable property on a timeshare basis.

Content

Directive 94/47/EC covers aspects relating to information on the constituent parts of the
to use immovable property on a timeshare basis and the
contract relating to the right
procedures for cancelling and withdrawing from such contracts (Article 1). On request, the
vendor is required to supply a document containing a general description of the property. Also
certain minimum items referred to in the Annex to the Directive (identity and domicile of the
parties concerned, number of the building permit etc), along with details of how to obtain
further information, should this be required, is to be supplied in the same document. This
information forms an integral part of the contract (Article 3).

The purchaser has a right of withdrawal. This may be done within ten days of signing the
contract without giving any reason with the effect of the cancellation of the contract (Article
5(1)). Only those expenses incurred as a result of the conclusion of and withdrawal from the
contract are liable to be repaid (Article 5(3)). The purchaser’s right of cancellation may be
exercised within three months of signing the contract if the information required by the
Directive is not included. In this eventuality the purchaser is not required to make any
repayment (Article 5(1)). Any clauses incorporated in to the contract that are contrary to the
rights of the purchaser and/or the responsibilities of the vendor under the Directive will not be
binding on the purchaser (Article 8).

24

1.8.

Distance marketing of consumer financial services

Proposal for a Directive concerning the distance marketing of consumer financial
services, and amending Council Directives 90/619/EEC, 97/7/EC and 98/27/EC41

Objective

To establish a harmonised and appropriate legal framework for distance contracts, pertaining
to financial services while ensuring an appropriate level of consumer protection.

Content

This proposal for a Directive aims to establish common rules to govern the conditions under
which distance contracts for financial services are concluded. The proposal covers contracts
for retail financial services negotiated at a distance by any means that does not require the
simultaneous physical presence of the parties to the contract.

By the proposal there is a duty to provide information to the consumer prior to the conclusion
of the contract. The supplier is required to transmit a draft contract to the consumer, in writing
or other durable form, provided that the consumer gives his consent to the transmission. The
draft contract is to include all the contractual terms and conditions, together with a summary
of them.

The proposal refers to the entitlement to a reflection period for the consumer prior to the
conclusion of a contract and the right of withdrawal with some exemptions, together with the
obligation of payment for services rendered provided these are rendered before the consumer
exercises the right of withdrawal.

Payments made by electronic means can be cancelled if fraudulent use is made of such means
and limits are placed on certain means of distance communication.

2.

SYSTEMS OF PAYMENT

2.1.

Late payments in commercial transactions

Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on
combating late payment in commercial transactions

Objective

To combat
late payments made as remuneration in commercial transactions within the
European Union, whether the delays in payment are between enterprises or between the
public sector and an enterprise.

Content

Directive 2000/35/EC contains a wide range of measures to combat
late payments in
commercial transactions within the European Union. The Directive applies to all payments
made as remuneration for commercial transactions (Article 1). These measures apply to all

41 As at 5th December 2000, this proposal is awaiting a Council common position following a first reading in the
European Parliament where modifications were made to the original proposal.

25

delays in payment between enterprises and between the public sector and enterprises (Article
2(1)).

In addition the Directive lays down a legal framework to discourage late payments. In
interest shall become payable from the day
particular, Member States shall ensure that
following the date or the end of the period for payment set down in the contract. If the date or
period for payment is not fixed in the contract, interest shall become payable automatically,
without the necessity of a reminder, 30 days following the date of receipt by the debtor of the
invoice or an equivalent request for payment. Where there is a procedure of acceptance or
verification by which conformity of the goods or services with the contract
is to be
ascertained, interest shall become payable 30 days after the date of the procedure. If the
debtor receives an invoice or an equivalent request for payment earlier or on the date on
which such acceptance or verification takes place, time runs from the later date. The interest
rate charged for late payments shall be that applied by the European Central Bank plus a
margin of seven percent at least (Article 3).

Member States shall also provide in conformity with the applicable national provisions that
the seller retains title to goods until they are fully paid, if a retention of title clause has been
expressly agreed between the buyer and the seller before the delivery of the goods (Article 4).
Member States are also to provide that, where the debt is not in dispute, an enforceable title
can be obtained irrespective of the amount of the debt, usually within 90 calendar days of the
lodging of the creditor’s action or application at the court or other competent authority
(Article 5).

2.2.

Cross-border credit transfers

Directive 97/5/EC of the European Parliament and of the Council of 27 January 1997 on
cross-border credit transfers

Objective

€

To establish minimum information and performance requirements for cross-border credit
transfers up to
50.000, effected in the currencies of the Member States and in Euro within
the European Union and the European Economic Area and carried out on the initiative of an
originator. The overriding purpose of Directive 97/5/EC is to enable funds to be transferred
from one part of the Community to another rapidly, reliably and inexpensively. “Debit
transfers” and payments by cheques are not under the scope of Directive 97/5/EC.

Content

1) Obligation of Transparency vis-à-vis the Customer (Art. 3 and 4)

institutions must provide general
Before carrying out a cross-border credit
information on the arrangement of such a transfer. In particular, the execution time, the
method of calculating any commission fees and charges payable by the customer to the
the value date applied by the institution, details of complaint and redress
institution,
procedures, the reference exchange rates used.

transfer,

After a cross-border credit transfer has been carried out, institutions must provide information
consisting of a reference enabling the customer to identify the transfer, the actual (original)
amount of the transfer, the amount of any charges or commissions payable by the customer
and the value date applied by the institution.

26

If the originator has specified that the transfer charges are to be completely borne by the
beneficiary or that the charges shall be shared with the beneficiary, the latter must be
informed of this by his own institution.

2) Minimum standards for the transfer

In cases of cross-border credit transfers with stated specifications, the institution must – at the
customers request – either give an undertaking concerning the time needed for carrying out
the transfer and the commission fees and charges, or refrain from accepting to carry out the
transfer (Article 5).

The transfer must be effected within the agreed time limit. If this agreed time limit is not
complied with rules providing for compensation have been included in the Directive. No
compensation is to be paid if the beneficiary’s institution can establish that the delay is
attributable to the originator or to the beneficiary (Article 6).

The originator's institution, any intermediary institution and the beneficiary's institution, after
the date of acceptance of the cross-border credit transfer order, shall each be obliged to
execute that credit transfer for the full amount thereof. This is the case unless the originator
specifies that the costs of the cross-border credit transfer are to be borne wholly or partly by
the beneficiary. Wrongful deductions by the originator’s or the beneficiary’s institution or any
intermediary institution must be refunded (Article 7).

In cases where an originator's institution accepts a transfer order but the relevant amount is
not credited to the account of the beneficiary's institution the “money-back guarantee” of up
to

12.500 plus interest and charges applies (Article 8).

€

2.3.

Settlement finality in payment and securities settlement systems

Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on
settlement finality in payment and securities settlement systems

Objective

To reduce the systemic risk inherent in payment and securities settlement systems and to
minimise the disruption caused by the insolvency of a participant in such a system. Directive
98/26/EC was created to deal with the legal problems specifically linked to insolvency
situations and bankruptcy (i.e. rights of foreign creditors) and to protect the development of a
single monetary policy in the European Monetary Union (EMU) by promoting the efficiency
of cross-border operations.

Content

Directive 98/26/EC protects ‘netting42’ in securities settlement systems, insulates collateral
given to the operators of these systems from the effect of bankruptcy and clarifies the law
applicable to dispositions of collateral evidenced by recording in a register, so-called ‘book-
entry securities’. Settlement systems for securities are also protected by a general clause

42 The conversion into one net claim or one net obligation of claims and obligations resulting from transfer orders which a
participant or participants either issue to, or receive from, one or more other participants with the result that only a net claim
can be demanded or a net obligation be owed (Directive 98/26/EC, Article 2(k)).

27

against the insolvency of a participant
in a system (Article 1 and Article 2). The law
governing rights and obligations arising from participation in a securities settlement system is
the law applicable to that system (Article 3(3)). The Directive also covers collateral security
provided in connection with operations of the central banks of the Member States in the
performance of their central banking functions (including national monetary policy) (Article
4).

3.

COMMERCIAL AGENTS

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

Objective

Directive 86/653/EEC co-ordinates national laws governing the legal relationships of self-
employed commercial agents and their principals. An objective of social protection for
commercial agents is pursued by the Directive, which sets minimum levels of harmonisation
in this area. The provisions of the Directive cannot be derogated from to the detriment of a
commercial agent. Agreements leading to a contract more favourable to the commercial agent
are permitted. The Directive also lays down provisions concerning the remuneration of the
agent and the right to indemnity or reparation where the agent suffers harm by the cessation of
the contract.

Content

1) Scope of application:

Directive 86/653/EEC applies to contracts for goods (and not services) made between a self-
employed intermediary (the commercial agent) and the principal. The commercial agent must
have the continuing authority to negotiate the sale or the purchase of goods on behalf of and
in the name of another person (the principal) or to negotiate and conclude such transactions
on behalf of and in the name of that principal in return for payment.

Under the Directive the notion of a commercial agent has independence from the principal at
its core, therefore excluding salaried commercial intermediaries and representatives of the
principal from the scope of application of the Directive (Article 1). Certain further categories
of commercial agents are also excluded from the scope of the Directive (Article 2).

2) Obligations imposed on parties to the contract (Articles 3-5)

Directive 86/653/EEC imposes a non-excludable obligation on a commercial agent to look
after his principal’s interests and act dutifully and in good faith. The duty includes the
obligation on the agent to make proper efforts to negotiate and, where appropriate, conclude
the transactions upon which he has received instructions. The agent must also communicate to
the principal all
the necessary available information and comply with the reasonable
instructions given by principals.

The principal has a reciprocal non-excludable obligation to act dutifully and in good faith. In
particular, to provide the commercial agent with necessary documentation relating to the
goods concerned. Th principal must also obtain for the commercial agent the information
necessary for the performance of the agency contract, in particular notification once the

28

principal anticipates that the volume of commercial transactions will be significantly lower
than that which could have been normally expected.

3) Remuneration for the Commercial Agent (Articles 6-12)

In the absence of an agreement to the contrary made between the parties and without
prejudice to the application of compulsory provisions of the Member States, a commercial
agent shall be entitled to the remuneration that is customary for commercial agents in the
market upon which the agent is operating. Where there is no commercial customary practice,
the commercial agent shall be entitled to reasonable remuneration taking into account all the
aspects of the transaction (Article 6).

Where the commercial agent is remunerated wholly or in part by commission a commercial
agent shall be entitled to commission on transactions concluded during the period covered by
the agency contract. The commission arrangement envisaged under the Directive is as
follows:

(1) The agent
is entrusted with a specific geographical area or group of customers or
alternatively, where the agent has an exclusive right to a specific geographical area or group
of customers, and

(2) The transaction has been entered into with a customer belonging to that area or group
(Article 7).

The entitlement to a commission on commercial transactions continues after the agency
contract has been terminated (Article 8), provided the payment of the commission is equitable
in the circumstances (Article 9). The commission becomes due once the transaction has been
executed and should not be paid any later than on the last day of the month following the
quarter in which it became due (Article 10).

The principal shall supply the commercial agent with a statement of the commission due
within a set time period. The agent is entitled to demand that he be provided with all
information that
is needed to check the amount of
commission due to him (Article 12).

is available to the principal

that

4) Form, duration and termination of the contract (Articles 13-20)

Directive 86/653/EEC leaves open the possibility of concluding an agency contract in verbal
or written form, it is left to the Member States to determine whether an agency contract shall
be valid if not evidenced in writing. Regardless of this, each party is entitled to receive from
the other, on request, a signed written document setting out the terms of the agency contract
(Article 13).

A fixed term agency contract that continues to be performed beyond its agreed duration shall
be converted into an agency contract for an indefinite period (Article 14).

An agency contract for an indefinite term may be terminated by notice equal to one month for
every year that the contract remains in force. The parties cannot agree a shorter term than this.
If the parties agree a longer term than this then the period of notice must be the same for both
parties. Member States may fix the period of notice at four to six months, once the contract
has been effective for a corresponding number of years (Article 15).

29

Directive 86/653/EEC also imposes an obligation on all Member States to take necessary
to indemnity (Article 17(2)) or
measures to ensure the commercial agent has a right
compensation (Article 17(3)-(4)) where the principal has terminated the agency contract
without justification (Article 18). This right may not be derogated from before the agency
contract expires.

Further, in contracts relating to commercial agency, a restraint of trade clause will only be
valid if it is no more than two years in duration and only to the extent that it is concluded in
writing. The restraint of trade clause must also relate to a geographical area or group of
customers and geographical area entrusted to the commercial agent, and to the kind of goods
covered by his agency under the contract. The provisions in Directive 86/653/EEC do not
affect the provisions of national law restricting the validity or enforceability of restraint of
trade clauses or reducing the obligations in the parties resulting from such agreements (Article
20).

4.

POSTING OF WORKERS

Directive 96/71/CE of the European Parliament and of the Council of 16 December 1996
concerning the posting of workers in the framework of the provision of services

Objective

To remove uncertainties and obstacles which may impede the freedom to provide services, by
increasing legal certainty and allowing identification of the terms and conditions of
employment applicable to workers who carry out temporary work in a Member State other
than that whose law governs their employment relationship; to avoid the risks of abuse and
exploitation of posted workers.

Content

1) Scope

The Directive applies to undertakings which, in the framework of the transnational provision
of services, post workers to the territory of a Member State:

–

–

–

on their account and under their direction, under a contract concluded between the
undertaking making the posting and the party for whom the services are intended;

to an establishment or to an undertaking owned by the group;

as a temporary employment undertaking, to a user undertaking.

2) Obligations

Member States must ensure that undertakings guarantee posted workers a central core of
mandatory protective rules laid down in the Member State in which the work is carried out:

–

–

by law, regulation or administrative provision and/or

by collective agreements or arbitration awards which have been declared universally
applicable, in so far as they concern the activities set out in the Directive's annex
(construction).

30

Conditions of work and employment to be covered are:

–

–

–

–

–

–

–

Maximum work periods and minimum rest periods;

minimum paid annual holidays

minimum rates of pay, including overtime rates

conditions of hiring-out of workers,
undertakings

health, safety and hygiene at work

in particular by temporary employment

protective measures with regard to the terms and conditions of employment of
pregnant women or women who have recently given birth, of children and of young
people

equality of treatment between men and women and other provisions of non-
discrimination.

5.

LIABILITY FOR DEFECTIVE PRODUCTS

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 (Amended by Directive 1999/34/EC of the European Parliament and
of the Council of 10 May 1999).

Objective

Directive 85/374/EEC (as amended by Directive 99/34/EC) is an internal market measure
striking a balance between a high level of consumer protection and a stable legal framework
of liability for producers, thus eliminating competition distortion due to diverging liability
regimes and facilitating the free circulation of goods under common liability rules.

Content

Council Directive 85/374/EEC of 25 July 1985 sets common liability rules in case of damages
caused to individuals by defective goods. A defective product is any movable that is lacking
the safety which the public at large is entitled to expect, taking into account the presentation
of the product, the reasonably expected use of the product and the time when the product was
put into circulation (Article 2 and Article 6).

Directive 99/34/EC extended the scope of Council Directive 85/374/EEC to primary
agricultural products. Producer liability in each Member State is limited to a threshold of no
€
70 million for death or personal injury caused by identical items with the same
lower than
defect (Article 16). The Directive does not affect the rights victims may have under existing
legislation on contractual and non-contractual liability.

The producer (or the importer) is liable to compensate the death or personal injury and
damages to property caused by the defective product, whether or not he is negligent. The
victim has to prove the existence of actual damage, a defect in the product and a causal link
between both (Article 4). The Directive introduces joint and several liability where several

31

persons are liable for the same damage (Article 5). The producer is not liable if he proves the
existence of exonerating circumstances by which he has reduced or, where appropriate, no
liability in case of the victim's contributory negligence (Article 7).

The victim must file an action for damages before the end of a three-year limitation period.
Under the Directive, the producer is not liable for damage ten years after the product has been
put on the market (Article 10). Waivers of liability are not valid.

6.

ELECTRONIC COMMERCE

6.1.

Electronic commerce services

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')

Objective

Directive 2000/31/EC seeks to contribute to the proper functioning of the internal market by
ensuring the free movement of information society services between the Member States.
(Article 1 (1))

Content

The Directive contains a number of specific obligations relevant concerning contract law, in
particular the following:

–

–

–

Member States shall ensure that their legal systems allow contracts to be concluded
by electronic means. Member States shall
the legal
requirements applicable to the contractual process neither create obstacles for the use
legal
of electronic contracts nor
effectiveness and validity on account of being made by electronic means (Article
9(1))

in such contracts being deprived of

in particular ensure that

result

Transparency rules applicable to the contractual process are to be respected by the
service provider. These rules provide that
the service provider must clearly,
comprehensively and unambiguously ensure certain information is given to the
consumer. In particular, the different technical steps to follow to conclude the
contract. For example, whether or not the concluded contract will be filed by the
service provider and will be accessible, the technical means for identifying and
correcting input errors prior to the placing of the order and the languages offered for
the conclusion of the contract. Further, the service provider must also indicate any
relevant codes of conduct to which he subscribes and information on how these
codes can be consulted electronically. This information must be supplied prior to the
order being placed by the recipient of the service (Article 10(1)(2))

Where the recipient of the service places his order through technological means, the
service provider has to acknowledge receipt of the recipient’s order without undue
delay. Receipt takes place where the party to whom the communication is addresses
is able to access them. (Article 11(1))

32

–

Member States shall ensure that the service provider makes available to the recipient
of the service the technical means allowing him to identify and correct input errors,
prior to the placing of the order. (Article 11(2)

6.2.

Electronic signatures

Directive 1999/93/EC of the European Parliament and of the Council of 13 December
1999 on a Community framework for electronic signatures

Objective

To ensure the proper functioning of the internal market in the field of electronic signatures, by
creating a harmonised and appropriate legal framework for the use of electronic signatures
within the European Community.

Content

Directive 1999/93/EC enforces the recognition of electronic signatures that have previously
been unrecognised, solely by reason of their electronic form. The Directive sets criteria which
forms the basis for the legal recognition of electronic signatures by focusing on certification
services (Article 1). Electronic signatures that conform to the requirements of Directive
1999/93/EC will automatically be accorded the same status as written signatures in the law of
the Member State concerned. These signatures are then admissible as evidence in legal
proceedings in the same manner as hand-written signatures (Article 5).

7.

FINANCIAL SERVICES

General remarks

Directives concerning banking, assurance and movable valuables set down a financial and
prudential regime that regulates the conditions of establishment and the allocation of services
of financial institutions in the European Community. By definition, therefore, these do not
consist of private law arrangements. The sole texts that concern aspects of private law
relevant to contract law and financial services are as follows:

7.1.

Banking

7.1.1.

Solvency ratios for credit institutions

Directive 96/10/EC of the European Parliament and of the Council of 21 March 1996
amending Directive 89/647/EEC as regards recognition of contractual netting by the
competent authorities (solvency ratios for credit institutions).

Objective

To contribute to the harmonisation of prudential supervision and to strengthen solvency
standards among Community credit institutions, thereby protecting depositors and investors
and maintaining banking stability.

Content

33

The amended Directive on solvency ratios applies to credit institutions (defined in Directive
77/780/EEC). The own funds of each credit institution are expressed as a proportion of the
risk adjusted value of its assets and off-balance sheet business (Article 5(1)).

The risk adjusted value of assets and off-balance sheet business relates primarily to the credit
risks associated with counterpart default, and a distinction is made between the degrees of risk
associated with particular assets and off-balance sheet items, and with particular categories of
borrower (Article 5).

Weightings vary between low risk items and high-risk items (Article 6). The prescribed
minimum ratio is 8% (Article 10). After January 1993 credit institutions are required to
maintain at all times a ratio of at least 8%. It is the responsibility of the national supervisory
authority to ensure this ratio is adhered to (Article 10(3)).

7.2.

Insurance

7.2.1.

Life insurance

Council Directive 79/267/EEC of 5th March 1979 on the co-ordination of
laws,
regulations and administrative provisions relating to the taking up and pursuit of the
business of direct life insurance (First Life Assurance Directive)

Council Directive 90/619/EEC of 8 November 1990 on the co-ordination of laws,
regulations and administrative provisions relating to direct life assurance, laying down
provisions to facilitate the effective exercise of freedom to provide services and
amending Directive 79/267/EEC (Second Life Assurance Directive)

Council Directive 92/96/EEC of 10 November 1992 on the co-ordination of laws,
regulations and administrative provisions relating to direct life assurance and amending
Directives 79/267/EEC and 90/619/EEC (Third Life Assurance Directive)

Objective

To facilitate the effective exercise of the right to supply life assurance services and lay down
special rules relating to freedom to provide cross-frontier services in the life assurance field.

Content

These Directives in the field of life assurance lay down a detailed regime in the field of life
insurance. This includes a very detailed obligation to provide essential
information
concerning a proposed contract for the provision of life assurance. Some of the clauses
contained in the Directives are of general application, whereas others apply only to the
provision of cross border services. The Directives are applicable to both individual and group
life assurance, but not to the management of group pension funds.

Directive 92/96/EEC draws a distinction between those insurance contracts undertaken on the
initiative of the policy-holder and a second category, including all individual contracts not
resulting from such initiatives. Life insurance contracts not entered into upon the initiative of
the policyholder, the second category, gain a greater degree of protection.

Contracts entered into on the initiative of the policyholder are subject to the control of the
State of the establishment of the insurer. Before entering into a life assurance contract of his
own initiative in another Member State, the policy-holder must sign a statement that he is

34

aware that the commitment is subject to the rules of supervision of the Member State of the
insurer who is to cover the commitment. The own initiative policy-holder also has a period of
between 15 to 30 days within which to cancel
the life assurance contract (Directive
90/619/EEC, Article 15).

A different regime applies to contracts other than those made on the initiative of the policy-
holder. These are subject to the application of and the supervision by the Member State in
which the service is supplied, the supervisory rules of the Member State of commitment (risk
country control). This is the case so long as the parties do not make a valid choice of the law
of another country.

There are also provisions on the choice of law that is to govern the relationship between the
insurer and policyholder. In general, the law applicable will be the law of the Member State of
where the commitment was made. There are, however, provisions to allow the freedom to
choose a different contract law.

Every contract subject to European Community life insurance rules is subject only to indirect
taxes on premiums applicable in the Member State of commitment. The tax arrangements of
the country of the policy holder are therefore applied for the benefit of that country.

7.2.2.

Insurance other than life insurance

Council Directive 92/49/EEC of 18 June 1992 on the co-ordination of laws, regulations
and administrative provisions relating to direct insurance other than life assurance and
amending Directives 73/239/EEC and 88/357/EEC (third non-life insurance Directive)

Objective

To lay down rules for the exercise of cross-frontier non-life insurance which balances the
needs of freedom of services and consumer protection.

Content

Directive 92/49/EEC amending Directives 73/239/EEC and 88/357/EEC (third non-life
insurance Directive) establishes the obligation on a non-life insurer to inform a prospective
party to an insurance contract of certain details. In particular the insured must be informed of
the Member State in which the head office or, where appropriate, the branch of the insurer
with which the contract is to be concluded is or is to be situated. Any document that grants
insurance cover must state the address of the head office or where appropriate the branch of
the insurance undertaking granting cover Article 43). Directive 92/49/EEC also places an
obligation on the insurer to inform the insured of the law applicable to the contract before the
conclusion of proposed insurance contract (Article 31).

7.3.

Transactions in securities

7.3.1.

Publication of listing particulars

Council Directive 80/390/EEC of 17 March 1980 co-ordinating the requirements for the
drawing up, scrutiny and distribution of the listing particulars to be published for the
admission of securities to official stock exchange listing

Objective

35

Council Directive 80/390/EEC aims to provide actual and potential investors in securities
with adequate and objective information, by co-ordinating the requirements regarding the
listing particulars to be published by issuers of securities. Council Directive 80/390/EEC also
co-ordinates the requirements for the drawing up, scrutiny and distribution of listing
particulars to be published for the admission of securities to official stock exchange listing.

Content

Listing particulars shall contain all necessary information, on both natural and legal persons,
to enable investors and their investment advisers to make an informed assessment of the
assets and liabilities, financial position, profits and losses, and prospects of the issuers and of
the rights attaching to such securities (Article 4). Similar requirements are applicable to the
auditing of accounts (which are included in the listing particulars).

Violation of these obligations normally will lead to misleading information being published.
This will be sanctioned as violation of contract law or tort law depending on the provisions of
national law.

The designated competent authorities are required to check that listing particulars meet the
requirements set out in Directive 80/390/EEC and, consequently, may be liable in private law
in case of approval of listing particulars containing misleading information (Article 18).
Directive 80/390/EEC does not affect the liability of the competent authority. This continues
to be governed solely by the applicable national law (Article 18 (4)).

7.3.2.

Public offer prospectus

Public offer prospectus Council Directive 89/298/EEC of 17 April 1989 co-ordinating the
requirements for the drawing-up, scrutiny and distribution of the prospectus to be
published when transferable securities are offered to the public

Objective

To co-ordinate the requirements for the drawing-up, scrutiny and distribution of the
prospectus to be published when transferable securities are offered to the public for the first
time.

Content

Directive 89/298/EEC applies to securities, except open-ended collective investment
undertakings and Euro-securities, which are offered for the first time to the public for
subscription or sale in a Member State (Article 1(1)).

Directive 89/298/EEC imposes the requirement for the prospectus to be published by the
person making the public offer (Article 4). The prospectus should include all information
needed to make an informed financial assessment of the securities (Article 11). There are less
detailed rules of disclosure where there is no application for official listing.

The Directive 89/298/EEC does not impose the obligation of examination of the public offer
prospectus before publication by competent authorities, this is left to the discretion of the
Member State. The only public offer prospectuses that can be mutually recognised and used
for multinational offers, however, are those which have been drafted and examined according
to the requirements of Directive 80/390/EEC on listing particulars (Article 21).

36

7.3.3.

Investment services in the securities field.

Council Directive 93/22/EEC of 10 May 1993 on investment services in the securities
field.

Objective

To liberalise access to stock-exchange membership and financial markets in host Member
States for investment firms authorised to provide the services concerned in their home
Member States.

Content

Council Directive 93/22/EEC requires a Member State to draw up rules of conduct which
investment firms shall observe at all times (Article 10). These rules must implement the
principles set out in the Directive. National rules are obliged to require, amongst other things,
that the investment firm acts honestly and fairly in conducting its business activities in the
best
interest of its client. The investment firm is also required to seek from its client
information regarding their financial situation, investment experience and objective with
regard to the services requested. The investment firm is further required to make adequate
disclosure of relevant material information and avoid conflicts of interests (Article 11).

These are not contract law provisions – many provisions might
situation, however, they are not part of contract law themselves.

influence a contractual

8.

PROTECTION OF PERSONAL DATA

Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995
on the protection of individuals with regard to the processing of personal data and on
the free movement of such data

Objective

To harmonise national laws relating to the processing of personal data and protect the rights
and freedoms of persons, in particular the right to privacy.

Content

Directive 95/46/EEC seeks to ensure a high level of personal data protection in the European
Union. The Directive regulates at EC level the basic civil right of privacy as regards the
processing of personal data, especially in view of a substantial increase in the cross-border
flow of personal data caused by the internal market.

1) The Contract

–

–

Data processing is permissible if it is necessary for the performance of a contract to
which the data subject (a natural person who can be identified, directly or indirectly)
is party or in order to take steps at the request of the data subject prior to entering in
to the contract (Article 7);

Where a processor (the natural or legal person) processes data on behalf of a
controller (the natural or legal person which determines the purposes and means of

37

the processing of personal data), there must be a contract or other legal act that
governs their relationship. This contract or other legal act should include certain
guarantees that bind the processor to the controller, for instance that the processor
shall act only on instructions from the controller (Article 17).

2) Transfer of personal data to third countries

Directive 95/46/EC stipulates that the transfer of personal data to third countries can take
place only if the third country in question ensures an “adequate level of protection” (Article
25). There are, however, special situations which by way of derogation and in the absence of
an adequate level of data protection ensured by the recipient country, the transfer of personal
data to third countries may take place (Article 26).

3) Agreements and expressions of will (“Rechtsgeschäft” in German Legal literature)

Article 2(h) of Directive 95/46/EC defines the data subject’s consent
in general terms.
Specific requirements for the data subject’s consent to processing or personal data are listed in
Article 7 (unambiguous consent) and Article 8 (explicit consent).

4) Liability

Article 23 of Directive 95/46/EC regulates the liability for unlawful processing of personal
data and compensation to the data subject for the damage suffered.

9.

COPYRIGHT AND RELATED RIGHTS

General remarks

Contract law in the field of intellectual property rights (IPR) has been left
to national
legislative provisions to a large extent. Nevertheless, international protection of copyright and
related rights is the subject of three major multilateral agreements. Namely, these are the
Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971), the
Rome Convention for
the Protection of Performers, Producers of Phonograms and
Broadcasting Organisations (1961) and the Agreement on Trade-Related Aspects of
the European
Intellectual Property Rights
Community and its Member States have already decided to ratify the WIPO Copyright Treaty
(WCT) and the WIPO Performances and Phonograms Treaty (WPPT) which significantly
updates international protection for intellectual property and improve the means to fight
piracy world-wide (see Annex I).

(TRIPs Agreement, 1995). Furthermore,

In the field of copyright and related rights the European Community has adopted five
directives (see below). There is a further directive dealing with the protection of layout. These
directives set out specific rules concerning in particular, the contents of the substantive rights,
the remuneration of right-holders and the administration of that remuneration.

Licensing contracts and contractual relations concerning copyright have not been subject to
overall harmonisation within the Community. On the other hand, rights administration or
licensing in general and the issue of collective management in particular has been addressed
in several Community instruments.

38

9.1.

Rental, lending and other rights related to copyright in the field of intellectual
property

Council Directive 92/100/EEC of 19 November 1992 on rental right and lending right
and on certain rights related to copyright in the field of intellectual property

Objective

To harmonise the law relating to rental right, lending right and certain rights related to
neighbouring rights,
reproduction, broadcasting and
distribution to the public, so as to provide a high level of protection of literary and artistic
property.

including the right of

fixation,

Content

Council Directive 92/100/EEC provides for an exclusive right to authorise or prohibit the
to
rental and lending of both works subject
neighbouring rights.

to copyright and other objects subject

Provisions of the Directive refer to contractual relationships between performers and authors
on the one side, and film producers on the other (Article 2(5), (6) and (7)). They contain rules
on the presumption of transfer of certain rights in film productions including the right for
authors and performers to equitable remuneration for rental of phonograms and films that
cannot be waived (Article 4). The administration of this right may be entrusted to collecting
societies representing authors or performers. The rights referred to in this Directive may be
transferred, assigned or subject to the granting of contractual licences (Articles 2(4), 7(2) and
9(4)).

9.2.

Term of protection of copyright and certain related rights

Council Directive 93/98/EEC of 29 October 1993 harmonising the term of protection of
copyright and certain related rights

Objective

Council Directive 93/98/EEC establishes a total harmonisation of the period of protection for
all types of works and subject matter protected by copyright and related rights in the Member
States.

Content

By Council Directive 93/98/EEC the duration of protection for copyright lasts 70 years after
the death of the author (or 70 years after an anonymous work is lawfully available to the
public), and 50 years for the neighbouring rights after the event setting the term running
(Article 1). Directive 93/98/EEC also deals with other issues, such as the protection of
previously unpublished works (Article 4) critical and scientific publications (Article 5) and
photographic works (Article 6).

9.3.

Computer programs

Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer
programs

39

Objective

Directive 91/250/EEC aims to harmonise Member States’
legislation concerning the
protection of computer programs in order to create a legal environment that will afford a
degree of security against unauthorised reproduction of such programs.

Content

Directive 91/250/EEC gives copyright protection to computer programmes as literary works
within the meaning of the Berne Convention for the Protection of Literary and Artistic Works.
It provides a number of exclusive rights and lists some exceptions to these rights (including
the important possibility of de-compiling a programme to make it interoperable with other
programmes). It also provides rules on some issues of enforcement and harmonises the level
of originality required for protection.

The Directive addresses issues of contractual relations by granting minimum rights to users.
In particular, the right for any lawful user of a computer program to make a back-up copy of
the program, "insofar as it is necessary for that use", may not be set aside by contract (Article
5(2)). The possibility to observe, study or test the functioning of the program (Article 5(3))
cannot be prevented by contract. Furthermore, the Directive provides that any contractual
provisions contrary to the de-compilation exception (Article 6) are null and void.

9.4.

Databases

Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on
the legal protection of databases

Objective

Directive 96/9/EC provides harmonised protection, for both original databases, through the
Directive’s copyright provisions, and non-original databases through a sui generis regime.

Content

Any original collections of work and compilation of data or other materials are covered by the
copyright provisions contained in Directive 96/9/EC (Article 1). In addition, the Directive
introduces a sui generis regime setting out to protect non-original databases made with
substantial investments for a period of 15 years (Article 10).

The sui generis right may be transferred, assigned or granted under contractual licence
(Article 7(3)). The Directive also contains a provision similar
to those in Directive
91/250/EEC on the legal protection of computer programs (Article 8). In particular, any
contractual agreement contrary to the possibility for the lawful user to extract and re-utilise
insubstantial parts of the database for any purposes whatsoever, shall be null and void.

9.5.

Satellite broadcasting and cable retransmission

Council Directive 93/83/EEC of 27 September 1993 on the co-ordination of certain rules
concerning copyright and rights related to copyright applicable to satellite broadcasting
and cable retransmission

Objective

40

To fill the gaps in the protection of programmes broadcast across borders where satellite
broadcasting or cable retransmission are involved. Directive 93/83/EEC aims to remove legal
uncertainties resulting from disparities in Member States’ levels of protection of copyright
and neighbouring rights in national rules and uncertainties concerning the applicable law in
the field of cross-border satellite broadcasting and the cable retransmission of programs from
other Member States.

Content

Directive 93/83/EEC completes the Community’s initiative on establishing a European audio-
visual area, namely the missing elements to the “television without frontiers Directive”
(89/552/EEC), which does not contain provisions on copyright.

Directive 93/83/EEC states the principle that broadcasting and cable retransmission rights
should only be acquired by (individual or collective) agreements (instead of statutory licence
systems) (Articles 3 and 8). The Directive also stipulates the mandatory administration by
collecting societies of cable retransmission rights (Article 9). It also provides for the
assistance of one or more mediators in the case that no agreement is concluded regarding
authorisation of the cable retransmission of a broadcast (Article 11) and aims to prevent the
abuse of negotiating positions (Article 12).

9.6.

Topographies of semiconductor products

Council Directive 87/54/EEC of 16 December 1986 on the legal protection of
topographies of semiconductor products

Objective

To provide for the legal protection of the layout designs (topographies) of semiconductor
products, whether individual components or a part or the whole of an integrated circuit on a
semiconductor chip

Content

Directive 87/54/EEC protects the intellectual property rights of the creator of a layout design,
providing that the design is a product of the creator’s own intellectual effort and is not
commonplace in the industry.
(a) the
reproduction of a protected design and (b) its commercial exploitation or importation of a
design or a product incorporating the design.

includes the rights to authorise or prohibit

It

Ongoing legislative actions

On the basis of the relevant provision (Article 14ter) in the Berne Convention, the European
Commission proposed a Directive on the Artist’s Resale Right (droit de suite)43. Resale right
is the right whereby the author, or after his death, his heirs or other beneficiaries, receives a
percentage of the resale price of a work in the field of visual arts each time it is resold.

The Council has already reached a Common Position; according to Article 6(2) of the
Common Position the administration of the resale right may be entrusted to collecting
societies.

43 This proposal is currently awaiting second reading by the Council of Ministers (7th February 2001).

41

The draft Directive on Copyright and Related Rights in the Information Society aims to
ensure an internal market in copyright and related rights with particular emphasis on new
products and services. It will adjust and complement the existing EU framework on copyright
and related rights to respond to the new challenges of technology, to the benefit of both right-
holders and users. Furthermore, it will implement the main obligations in substance of the
WIPO-Internet Treaties at European Community level. Council has already reached political
agreement on a Common Position. Final adoption of the Directive on Copyright and Related
Rights in the Information Society could be attained by early 200144.

10.

PUBLIC PROCUREMENT

Ongoing legislative action

The European Commission has published a proposal to simplify and modernise the Directives
on the co-ordination of procedures for the award of public supply contracts, public service
contracts and public works contracts45. The proposal is presented in the form of a single text
for supply, works and service contracts in order to codify the procedures relating to these in
one single text in order to maintain consistency during the legislative process. Title II of the
proposal concerns the specific rules applicable to contracts. The proposal is at an early stage
in the legislative process and a Council common position is expected no earlier than June
2001.

10.1.

Public service contracts

Council Directive 92/50/EEC of 18 June 1992 relating to the co-ordination of procedures
for the award of public service contracts.

Objective

To co-ordinate procedures for the award of public service contracts in so far as such
procurement is not already covered by procedures for the award of public works contracts and
public supply contracts.

Content

€

Directive 92/50/EEC applies to public service contracts the estimated value of which is not
200 000 net of VAT including estimated total remuneration of the service provider.
less than
The Directive covers contracts for services and goods or supplies together if the value of the
services exceeds that of the goods or supplies. The Directive does not apply to contracts
governed by certain international agreements or to be awarded under the specific procedure of
an international organisation. Contracts declared secret or the execution of which must be
accompanied by special security measures. Public service contracts awarded on the basis of
an exclusive right enjoyed under national provisions compatible with the Treaty.

For all services contracting authorities must define technical specifications consistent with
European standards. For those services defined as priority services (Annex IA) there are
additional rules that apply concerning choice of award procedures and rules governing design
contests. Contracting authorities are obliged to adhere to one of three types of procedure when

44 This proposal is currently awaiting second reading by the European Parliament (7th February 2001).
45 OJ C29/11, 30/01/01

42

awarding a contract for priority services. Firstly there is the open procedure where all
interested contractors may submit tenders. Alternatively there is the restricted procedure
where only contractors who have been invited to submit tenders can do so. Finally there is the
negotiated procedure in specified cases listed in the Directive, whereby the contracting
authority consults contractors of its choice and negotiates the terms of the contract with one or
more of them. A contracting authority may also decide to organise a design contest.

For priority services the Directive also sets out common advertising rules through the use of
model notices. There are also common rules on participation and the award of contracts to
ensure that these are awarded on the basis of stated criteria. Service providers who are
bankrupt, in liquidation, having their affairs administered by the court or being wound up may
be excluded from selection.

10.2.

Public works contracts

Council Directive 93/37/EEC of 14 June 1993 concerning the coordination of procedures
for the award of public works contracts.

Objective

To consolidate and co-ordinate procedures for the award of public works contracts.

Content

Directive 93/37/EEC applies to contracts46 that have either the execution or both the
execution and design, of works involving building, civil engineering, installation or building
completion work, or the execution, by whatever means, of a work corresponding to the
requirements specified by the contracting authority.

Member State contracting authorities financing more than 50% of a works contract, with an
estimated value net of VAT is above certain thresholds47 awarded by themselves or another
entity, are required to ensure that such a contract must comply with the Directive.

Contracting authorities are obliged to adhere to one of three types of procedure when
awarding a contract. Firstly there is the open procedure where all interested contractors may
submit tenders. Alternatively there is the restricted procedure where only contractors who
have been invited to submit tenders can do so. Finally there is, in specified cases listed in the
Directive, the negotiated procedure whereby the contracting authority consults contractors of
its choice and negotiates the terms of the contract with one or more of them.

The Directive also obliges contracting authorities to give technical specifications consistent
with European standards for the works in general or contractual documents relating to each
contract. There is the obligation to publish notices, in compliance with certain prescribed
models and deadlines, giving certain items of information on the contract.

46 Excluding those concerning the production, transport and distribution of drinking water; contracts awarded by
entities whose main activity is to produce or distribute energy, and contracts relating to telecommunications.
Contracts declared secret or which concern the protection of the Member State’s basic interests are also exempt
from this Directive. Also certain contracts governed by international agreement or the particular procedure of an
international organisation are excluded.
47 Not less than

5 million, this in national currencies is revised every two years from 1st January 1992.

€

43

The Directive also lays down rules on the selection of contractors and award of contracts. An
unsuccessful applicant or tender who requests reasons for the rejection of his application of
tender is to be informed of this within 15 days. This is to be communicated in the form of a
detailed written report on each contract awarded, identifying the contracting authority, the
successful applicants or tenderers and the reason for their selection. This report must also list
the unsuccessful applicants or tenders and the reason for their rejection, the successful bidder
and the reason why this tender was chosen.

10.3.

Review procedures to the award of public supply and public works contracts

Council Directive 89/665/EEC of 21 December 1989 on the co-ordination of laws,
regulations and administrative provisions relating to the application of review
procedures to the award of public supply and public works contracts as amended by
Council Directive 92/50/EEC.

Objective

The Directive seeks to ensure that
interested parties having been or likely to be injured by an alleged infringement (Article 1).

the review procedures are available to sufficiently

Contents

In all Member States decisions of contracting authorities which are in breach of law are
subject to remedies. Such remedies must include, in particular, interim measures including
suspension of the award procedure in question, setting aside of the unlawful decisions and
discriminatory conduct (Article 2).

44

ANNEX II
LIST OF INTERNATIONAL INSTRUMENTS RELATING TO SUBSTANTIAL
CONTRACTLAW ISSUES.

1.

UN CONVENTIONS

CONVENTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE
OF GOODS adopted in New York in 1974 (as amended by the PROTOCOL
AMENDING THE CONVENTION ON THE LIMITATION PERIOD IN THE
INTERNATIONAL SALE OF GOODS of 11.04.1980).

Status:

The Convention, as amended by the Protocol, is in force (neither the Protocol nor the
Convention has been signed by any EU Member State). The former German Democratic
Republic was a participant by virtue of its accession on 31 August 1989 to the Protocol
amending the Convention and therefore also to the Convention of 1974.

UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL
SALE OF GOODS adopted in Vienna, in 1980.

Status:

Only the UK, Portugal and Ireland have not acceded to the Convention,
contractual parties. The convention is in force for the rest of the EU Member State.

i.e. are not

UNCITRAL
TRANSACTIONS adopted in 1992.

LEGAL GUIDE ON

INTERNATIONAL COUNTERTRADE

Status:

Not legally binding

UNITED NATIONS CONVENTION ON INTERNATIONAL BILLS OF EXCHANGE
AND INTERNATIONAL PROMISSORY NOTES adopted in New York, in 1988.

Status:

The Convention is not in force. 10 actions are required. No EU Member State has signed.

UNCITRAL LEGAL GUIDE ON ELECTRONIC FUNDS TRANSFERS adopted in
1987.

Status:

Not legally binding

UNCITRAL MODEL LAW ON INTERNATIONAL CREDIT TRANSFERS adopted in
1992.

Status:

45

Binding once enacted in domestic law.

UNITED NATIONS CONVENTION ON INDEPENDENT GUARANTEES AND
STAND-BY LETTERS OF CREDIT adopted in New York, in 1996.

Status:

The Convention entered into force 1 January 2000. No EU Member State has signed.

UNITED NATIONS CONVENTION ON THE CARRIAGE OF GOODS BY SEA
adopted in Hamburg, in 1978 (HAMBURG RULES).

Status:

The Convention entered into force 1.11.1992.

Signed by Denmark (18.04.1979), Finland (18.04.1979), France (18.04.1979), Germany
(31.03.1978), Portugal (31.03.1978) and Sweden (18.04.1979).

Ratified by Austria (29.07.1993).

UNITED NATIONS CONVENTION ON THE LIABILITY OF OPERATORS OF
TRANSPORT TERMINALS IN INTERNATIONAL TRADE adopted in Vienna, in
1991.

Status:

The Convention is not in force. 5 Actions are required.

Signed by France (15.10.1991) and Spain (15.04.1991).

UNCITRAL MODEL LAW ON ELECTRONIC COMMERCE WITH GUIDE TO
ENACTMENT adopted in 1996, with additional Article 5 bis as adopted in 1998.

Status:

Binding once enacted in domestic law.

UNCITRAL Legal Guide on Drawing Up International Contracts for the Construction
of Industrial Works, adopted in New York, in 1987.

Status:

Not legally binding.

2.

UNIDROIT (THE INTERNATIONAL INSTITUTE FOR THE UNIFICATION OF
CONTRACT LAW) INSTRUMENTS.

UNIDROIT Principles for International Commercial Contracts adopted in 1994.

Status:

Not legally binding.

46

CONVENTION RELATING TO A UNIFORM LAW ON THE INTERNATIONAL
SALE OF GOODS signed in the Hague, in 1964.

Status:

In force in the UK (ratified on 31.08.1967). Denounced by Italy (11.12.1986), Germany
(1.01.1990),
and Luxembourg
(20.01.1997)).

(1.01.1991), Belgium (1.11.1996)

the Netherlands

Signed by Greece (ad referendum, 3.08.1964) and France (31.12.1965).

CONVENTION RELATING TO A UNIFORM LAW ON THE FORMATION OF
CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS signed in the Hague,
on 1 July 1964.

Status:

In force in the UK (ratified on 31.08.1967), and denounced by Italy (11.12.1986), Germany
(1.01.1990),
and Luxembourg
(20.01.1998).

(1.01.1991), Belgium (1.11.1996)

the Netherlands

Signed by Greece (ad referendum, 3.08.1964) and France (31.12.1965).

CONVENTION ON AGENCY IN THE INTERNATIONAL SALE OF GOODS signed
in Geneva, on 17 February 1983.

Status:

Ratified by Italy (16.06.1986) and France (7.08.1987).

Has not been signed by other EU Member States.

The Convention will only enter into force when accepted by ten contracting States (article
33).

UNIDROIT CONVENTION ON INTERNATIONAL FINANCIAL LEASING adopted
in Ottawa, on 28 May 1988.

Status:

The Convention is in force.

Ratified by France (with declaration, 23.09.1991) and Italy (29.11.1993).

Signed by Finland (30.11.1990) and Belgium (21.12.1990).

UNIDROIT CONVENTION ON INTERNATIONAL FACTORING adopted in Ottawa,
on 28 May 1998.

Status:

The Convention is in force.

47

Ratified by France (with declaration, 23.09.1991),
(20.05.1998)

Italy (29.11.1993) and Germany

Signed by Finland (30.11.1990), Belgium (21.12.1990) and the UK (31.12.1990).

3.

COUNCIL OF EUROPE INSTRUMENTS

EUROPEAN CONVENTION ON COMPULSORY INSURANCE AGAINST CIVIL
LIABILITY IN RESPECT OF MOTOR VEHICLES signed in Strasbourg, on
20.04.1959.

Status:

The Convention entered into force 22.09.1969.

Ratified by Austria (10.04.1972), Denmark (24.06.1969), Germany (5.01.1966), Greece
(29.05.1961) and Sweden (22.06.1969).

Signed by Belgium (20.04.1959), France (20.04.1959), Italy (20.04.1959) and Luxembourg
(20.04.1059).

CONVENTION ON THE LIABILITY OF HOTELKEEPERS CONCERNING THE
PROPERTY OF THEIR GUESTS signed in Paris, on 17.12.1962.

Status:

The Convention entered into force 15.02.1967.

Ratified by Belgium (14.09.1972), France (19.09.1967), Germany (14.11.1966), Ireland
(7.05.1963), Italy (11.05.1979), Luxembourg (25.01.1980) and the UK (12.07.1963)

Signed by Austria (17.12.1962), Greece (17.12.1962) and the Netherlands (17.12.1962).

CONVENTION ON THE UNIFICATION OF CERTAIN POINTS OF SUBSTANTIVE
LAW ON PATENTS FOR INVENTION signed in Strasbourg, on 27.11.1963.

Status:

The Convention entered into force 1.08.1980.

Ratified by Belgium (23.09.1999), Denmark (29.09.1989), France (27.02.1980), Germany
(30.04.1980),
(14.09.1977),
Netherlands (2.09.1987), Sweden (3.03.1978) and the UK (16.11.1977).

(17.02.1981), Luxembourg

(25.01.1968),

Ireland

Italy

EUROPEAN CONVENTION ON ESTABLISHMENT OF COMPANIES signed in
Strasbourg, on 20.01.1966.

Status:

The Convention is not in force. 5 ratification actions are needed.

Signed by Belgium (20.01.1966), Germany (5.11.1968), Italy (24.03.1966) and Luxembourg
(18.09.1968).

48

EUROPEAN CONVENTION ON FOREIGN MONEY LIABILITIES signed in Paris,
on 11.12.1967.

Status:

The convention is not in force. 3 ratification actions are needed.

Ratified by Luxembourg (9.02.1981).

Signed by Austria (11.12.1967), France (11.12.1967) and Germany (11.12.1967).

EUROPEAN AGREEMENT ON "AU PAIR" PLACEMENT signed in Strasbourg, on
24.11.1969.

Status:

The agreement entered into force 30.05.1971.

Ratified by Denmark (29.04.1971), France (5.02.1971), Italy (8.11.1973), Luxembourg
(24.07.1990) and Spain (11.08.1988).

Signed by Belgium (24.11.1969), Finland (16.07.1997), Germany (2.10.1976) and Greece
(22.08.1979).

EUROPEAN CONVENTION ON THE PLACE OF PAYMENT OF MONEY
LIABILITIES signed in Basle, on 16.05.1972.

Status:

The Convention is not in force. 5 ratification actions are needed.

Signed by Austria (16.05.1972), Germany (16.05.1972) and the Netherlands (16.05.1972).

EUROPEAN CONVENTION ON THE CALCULATION OF TIME-LIMITS signed in
Basle, on 6.05.1974.

Status:

The Convention entered into force 28.04.1983.

Ratified by Austria (11.08.1977) and Luxembourg (10.10.1984).

Signed by Sweden, Portugal, Spain, Germany, Belgium, Italy and France.

EUROPEAN CONVENTION ON CIVIL LIABILITY FOR DAMAGE CAUSED BY
MOTOR VEHICLES signed in Strasbourg, on 14.05.1973.

Status:

The Convention is not in force. 3 ratification actions are needed.

Signed by Germany (14.05.1973).

49

EUROPEAN CONVENTION ON PRODUCTS LIABILITY IN REGARD TO
PERSONAL INJURY AND DEATH signed in Strasbourg, on 27.01.1977.

Status:

The Convention is not in force. 3 ratification actions are needed.

Signed by Austria (11.08.1977), Belgium (27.01.1977), France (27.01.1977) and Luxembourg
(27.01.1977).

CONVENTION ON CIVIL LIABILITY FOR DAMAGE RESULTING FROM
ACTIVITIES DANGEROUS TO THE ENVIRONMENT signed in Lugano, on
21.06.1993.

Status:

The Convention in not in force. 3 ratification actions are needed.

Signed by Finland (21.06.1993), Greece (21.06.1993), Italy (21.06.1993), Luxembourg
(22.06.1993), the Netherlands (21.06.1993) and Portugal (06.03.1997).

EUROPEAN CONVENTION RELATING TO QUESTIONS ON COPYRIGHT LAW
AND NEIGHBOURING RIGHTS IN THE FRAMEWORK OF TRANSFRONTIER
BROADCASTING BY SATELLITE signed in Strasbourg, on 11.05.1994.

Status:

The Convention is not in force. 7 ratification actions are needed.

Signed by Belgium (6.08.1998), Germany (18.04.1997), Luxembourg (11.05.1994), Spain
(11.05.1994) and the UK (2.10.1996).

CIVIL LAW CONVENTION ON CORRUPTION signed in Strasbourg, on 4.11.1999.

Status:

The Convention is not in force. 14 ratification actions are needed.

Signed by Belgium (8.06.2000), Denmark (4.11.1999), Finland (8.06.2000), France
Italy
(26.11.1999), Germany (4.11.1999), Greece
(4.11.1999), Luxembourg (4.11.1999), Sweden (8.06.2000) and the UK (8.06.2000).

Ireland (4.11.1999),

(8.06.2000),

CONVENTION RELATING TO STOPS ON BEARER SECURITIES
INTERNATIONAL CIRCULATION signed in the Hague, on 28.05.1970.

IN

Status:

The Convention entered into force 11.02.1979.

Ratified by Austria (11.08.1977), Belgium (23/05/73), France (23/05/73) and Luxembourg
(23/05/73).

Signed by Germany (28/05/70), Ireland (23/04/74), the Netherlands (23/04/74) and the UK
(28.05.1970).

50

EUROPEAN CONVENTION ON CERTAIN INTERNATIONAL ASPECTS OF
BANKRUPTCY signed in Istanbul, on 5.06.1990.

Status:

The Convention is not in force. 3 ratification actions are needed.

Signed by Belgium (13.06.1990), France (5.06.1990), Germany (5.06.2000), Greece
(5.06.1990), Italy (15.01.1991) and Luxembourg (5.06.1990).

51

ANNEX III
STRUCTURE OF THE ACQUIS AND RELEVANT BINDING INSTRUMENTS

1.

THE CONTRACT

1.1.

General

The Directive 90/314/EEC on Package Travel is the only one giving a legal definition of the
term ‘contract’: ‘contract means the agreement linking the consumer to the organiser and/or
the retailer’ (Art.2.5).

There are pre-formulated standard contracts and individually negotiated ones. Directive
93/13/EEC on Unfair Terms in Consumer Contracts stipulates when a contract term shall be
regarded as not
individually negotiated (Art. 3.2) and therefore is submitted to control
according to this Directive.

Directive 2000/35/EEC on Late Payments, too, provides for some elements to be taken into
consideration in determining whether an agreement is unfair (Art.3.3-5).

As an expression of a general principle in Consumer Protection Law, contract terms must be
drafted in plain and intelligible language (cf. Directives 93/13/EEC on Unfair Terms (Art.5),
90/314/EEC on Package Travel (Art.3.2), 1999/44/EC on Sales of Consumer Goods
(Art.6.2), 97/7/EC on Distance Contracts (Art.4.2) as well as the proposal for a Directive on
Distance Contracts in Financial Services (Art.3.2)).

Unfair terms used in a consumer contract shall not be binding on the consumer (Art. 6.1 of
Directive 93/13/EEC on Unfair Terms).

A few Directives contain provisions reflecting common principles such as the principle of
good faith (cf. Directive 86/653/EEC on Self-employed Commercial Agents (Art.3) and
93/13/EEC on Unfair Terms (Art.3)) and the principle of the most favourable interpretation
of contractual provisions (cf. Art.5 of the Directive 93/13/EEC on Unfair Terms).

1.2.

Conclusion of a contract: offer and acceptance

The UN Convention on Contracts for the International Sales of Goods (CISG) contains
provisions dealing with the formation of the contract (Art. 14-24).

The CISG describes the circumstances under which a proposal for concluding a contract can
be regarded as an offer. Furthermore, it addresses issues of effectiveness, withdrawal and
rejection of an offer as well as the issue of acceptance of an offer.

According to Art.9 of Directive 97/7/EC on Distance Contracts as well as Art.9 of the
proposal for a Directive on Distance Contracts in Financial Services, the supply of goods and
services without being ordered by the consumer is prohibited (inertia selling). The absence of
a response does not constitute consent.

1.3.

Form

According to Directive 2000/31/EC on Electronic Commerce, Member States shall ensure
that their legal systems allow contracts to be concluded by electronic means.

52

Directive 86/653/EEC on Self-employed Commercial Agents stipulates that each party is
entitled to receive from the other on request a signed written document. But in general,
contracts might also be validly concluded only verbally (Art.13).

Other Directives in the consumer protection area prescribe the written form (cf. Directives
87/102/EEC on Consumer Credit (Art.4 and 6.1), 90/314/EEC on Package Travel (Art.4.2b)
and 94/47/EC on Timesharing (Art.4)).

Directive 99/93/EC on a framework for Electronic Signatures sets criteria for according the
same status to electronic signatures as to hand-written signatures.

1.4.

Termination

The CISG confirms that a contract can be terminated by agreement of the parties (Art.29).

According to Art.15 of Directive 86/653/EEC on Self-employed Commercial Agents, each
party may terminate a contract concluded for an indefinite period but only by notice (1 to 3
months depending of the duration of the contract).

Some consumer protection Directives give a right of withdrawal without penalty and without
giving any reason (cf. Directive 97/7/EC on Distance Contracts (Art. 6: period of 7 days) as
well as in the proposal for a Directive on Distance Contracts in Financial Services (period of
14 to 30 days), 85/577/EEC on Contracts negotiated away from Business Premises (Art.5,
period of 7 days), and 94/47/EC on Timesharing (Art.5, period of 10 days)). Rules in this
respect also can be found in Directive 90/619/EEC on Life Insurance (Art. 15, period of 14 to
30 days).

2.

PRECONTRACTUAL AND CONTRACTUAL OBLIGATIONS

2.1.

Obligations of the party providing the service or the goods

2.1.1.

Information requirements

2.1.1.1. General/Form

Many directives stipulate that the information has to be given in writing (cf. Directives
85/577/EEC on Contracts negotiated away from Business Premises (Art.4), 87/102/EEC on
Consumer Credit (Art.4 and 6.1), 90/314/EEC on Package Travel (Art.4.1a and b), 94/47/EC
on Timesharing (Art. 3.1 and 2,4), 97/7/EC on Distance Contracts (Art. 5) as well as the
proposal for a directive on Distance Contracts in Financial Services (Art.3)).

The information must be given in a clear and comprehensible way (cf. Directives 2000/31/EC
on Electronic Commerce (Art.10.1), 97/7/EC on Distance Contracts (Art.5), 85/577/EC on
Contracts negotiated away from Business Premises (Art.4), 90/314/EEC on Package Travel
(Art.4.1), 94/47/EC on Timesharing (Art.3.2)).

The information given becomes an integral part of the contract and binds the supplier of the
service in case of the Directives 94/47/EC on Timesharing (Art.3.2) and 90/314/EEC on
Package Travel (Art.3.2).

53

There are provisions concerning modifications of the information and the communication of
(cf. Directives 94/47/EC on Timesharing (Art.3.2),
these to the consumer as well
90/314/EEC on Package Travel (Art.3.2) and 87/102/EEC on Consumer Credit (Art.6.2)).

2.1.1.2. Examples of information requirements and time at which the information is to be

given

aa) prior to the conclusion of the contract

There are many directives with regard to consumer protection providing for information
requirements to be given prior to the conclusion of the contract. Basically, such information,
i.a., regards the main characteristics of the goods or services, price and additional costs,
arrangements for payment, rights and obligations of the consumer, as well as procedures to
terminate the contract and to take redress (cf. Directives 97/7/EC on Distance Contracts
(Art.4; the information might also be given in good time during the performance of the
contract or at the latest at the time of delivery (Art.5)), 87/102/EEC on Consumer Credit
(Art.6 ; the information might also be given only at the time of the agreement), 94/47/EC on
Timesharing (Art.3.1), 90/314/EEC on Package Travel (Art.3 and 4.1a), 92/96/EEC on Life
Insurance ( Art. 31.1 and Annex II, with specific information on benefits, surrender and paid-
up values), 97/5/EC on Cross Border Credit Transfer ( Art.3, with specific information on the
execution time, commission fees and charges).

According to Directive 2000/31/EC on Electronic Commerce, information has to be given on
the different technical steps to follow to conclude a contract, how the contract will be filed,
and the languages offered to conclude the contract, as well as on existing codes of conduct
(Art.10.1 et 2).

bb) at the time of the conclusion of the contract

The Directive on Legal Assistance 87/344/EEC obliges the insurer to inform the policyholder
about his right to ask for an arbitration procedure and to acknowledge him of his right of free
choice of a lawyer.

Directive 90/314/EEC on Package Travel stipulates in Art. 4.2 that certain elements listed in
the Annex have to be part of the contract.

cc) after conclusion of the contract

According to the Third Life Insurance Directive 92/96/EEC, in a given case the insurer has to
provide the insured with an update of information concerning the insurance company and the
policy conditions. He has to inform the insured about benefits and bonuses (Art.31.2 and
Annex II). Similar, according to Directive 87/102/EEC on Consumer Credit, the consumer
shall be informed of any change in the annual rate of interest and other relevant charges
(Art.6.2).

The Cross Border Credit Transfer Directive 97/5/EC stipulates that after a cross-border credit
transfer has been carried out, institutions must provide information on a reference to enable
the customer to identify the transfer, the actual amount of the transfer, the amount of charges,
etc. (Art. 4).

According to Art.12 of Directive 86/653/EEC on Self-employed Commercial Agents, a
commercial agent shall be supplied with a statement of the commission due,
including
components used for the calculation.

54

According to directive 90/314/EEC on Package Travel,
additional information on the journey (Art.4.1b).

the consumer has to be given

According to Directive 85/577/EEC on Contracts negotiated away from Business Premises,
information has to be given on the right of cancellation together with the co-ordinates of the
person against whom the right may be exercised (Art.4).

2.1.2. Commercial guarantees

There is a special Directive dealing with commercial guarantees: Directive 99/44/EC on Sales
of Consumer Goods with provisions defining a guarantee, describing the content, etc. (Art.6).

2.1.3.

Execution of the obligations

The CISG stipulates the seller’s obligation to deliver the goods and provides rules on the
definition of the place and time of delivery (Art.30, 31).

According to Art.7.1 of Directive 97/7/EC on Distance Contracts, the supplier must execute
the order within a maximum of 30 days from the day following that one on which the
consumer forwarded his order.

The proposal for a Directive on Distance Contracts in Financial Services provides an express
consent of the consumer concerning the execution of the contract before the end of the period
of notice of his right of withdrawal (Art. 5). The CISG leaves it to the buyer to decide if to
take delivery or refuse to take delivery if the seller delivers the goods before the date fixed.

2.1.4. Conformity of the performance with the contract

The Directive 99/44/EC on Sales of Consumer Goods stipulates the seller’s obligation to
deliver goods in conformity with the contract and his consequent liability in case of lacking
conformity (Art. 2 and 3 as well as Art. 35-44 CISG).

Directive 90/314/EEC on Package Travel, too, requires Member States to ensure that the
organiser and/or retailer are liable for the proper performance of its obligations (Art.5.2).

2.2.

Obligations of the other party of the contract

As far as the obligations of the buyer are concerned, the CISG stipulates that the buyer has to
pay the price of the goods and take delivery of them (Art.53 and 60). The Convention
provides rules on the definition and place and time of the payment as well (Art.55 - 59).

Directive 86/653/EEC on Self-employed Commercial Agents distinguishes between a
negotiated remuneration and a customary commission and gives rules on the entitlement to it
(Art. 6 – 8) as well as on the extinction of the right (Art.11). If there is no agreement and no
customary practice, the agent shall be entitled to reasonable remuneration (Art.6.1).

3.

CONSEQUENCES
OBLIGATIONS

OF

IN-EXECUTION

OF

CONTRACTUAL

3.1.

Withdrawal, rescission and cancellation

The relevant Directives give different options to terminate a contract.

55

According to Directive 90/314/EEC on Package Travel, the consumer has the right
to
withdraw from the contract without penalty in case the organiser of the travel arrangement
altered significantly an essential term of the contract.

Some directives expressly stipulate rights of cancellation (cf. Directive 94/47/EC on
Timesharing (Art.5.1, period of 3 months, and Art.7 for contracts on credit)).

In others, provisions in this regard are missing (cf. Directive 87/102/EEC on Consumer
Credit).

In cases of withdrawal by the consumer as well as in cases of cancellation by the supplier for
another cause than the fault of the consumer, some directives provide for the consumer a right
to be repaid all sums paid by him under the contract (cf. Directives 97/7/EC on Distance
Contracts (Art.7.2) and 90/314/EEC on Package Travel (Art.4.6)).

3.2.

Contract-specific rights

Due to the specific objective of the directive, various rights of the consumer in case of a
performance being not in conformity with the contract are stipulated in the most detailed way
in Directive 99/44/EC on Sales of Consumer Goods (cf. Art. 3 : repair or replacement, price
reduction (cf. also Art. 5 of Directive 90/314/EEC on Package Travel), rescission). Along the
same lines Directive 2000/35/EC on Late Payments provides for retention of title before the
delivery of the good (Art.4).

The CISG contains a certain number of remedies for breach of contract by the seller (e.g. the
buyer may require under certain conditions performance by the seller of his obligations,
delivery of substitutes, or to remedy the lack of conformity by repair; he may also declare the
contract avoided or may reduce the price (cf. Art.46-52)).

3.3.

Compensation

Provisions on compensation in case of non-delivery or delivery of goods and services in a
way not respecting contractual requirements can also be found in the CISG (Art.45.1b,74-77),
Directive 86/653/EEC on Self-employed Commercial Agents ( Art.17), the Cross Border
Credit Transfer Directive 97/5/EC ,and Directive 90/314/EEC on Package Travel (Art.4.6
and 7).

A specific compensation in case of an unlawful processing operation is provided for in
Directive 95/46/EC on the Protection of Individuals with regard to the Processing of Personal
Data (Art.23.1). Directive 2000/35/EC on Late Payments provides that unless the debtor is
not responsible for the delay, the creditor shall be entitled to compensation for all costs
incurred due to the late payment (Art.3e). Moreover, interest rates as a penalty are provided
for in Directive 2000/35/EC on Late Payments in case of a fixed date for a payment as well as
in case the date is not fixed (Art.3).

4.

EXTRA-CONTRACTUAL LIABILITY

4.1.

Liability for defective products

Directive 85/374/EC on the Responsibility for Defective Goods defines the notion of a
defective good and sets common liability rules in case of damages caused to individuals by
defective goods. The producer or importer is liable to compensation whether or not he is

56

negligent. The directive introduces joint and several liability in case several persons are liable
for the same damage.

4.2.

Protection of the right of privacy

Under Directive 95/46/EC concerning the Protection of Individuals with regard to the
Processing of Personal Data, specific requirements and conditions for the data subject’s
consent to the processing of the data are given (Art.7), while the Directive 97/66/EC on the
Processing of Personal Data and the Protection of Privacy in the Telecommunications Sector
(Art. 12.1) and the Directive 97/7/EC on Distance Contracts (Art.10) only allow the use of
automated calling systems or fax machines for the purpose of direct marketing in case of prior
consent. The latter provision also subordinates other means of distance communication which
allow individual communications only where there is no clear objection from the consumer.

According to Art. 10,11,12,14 of Directive 95/46/EC,
in cases of collection of data,
information has to be given, i.a., with regard to the purposes of the processing for which the
data are collected and the data subject’s right to access and rectify the data concerning him.

5.

MANDATORY NATURE OF THE PROVISIONS

The consumer is not allowed to waive his rights according to most of the consumer protection
Directives such as 85/577/EEC on Contracts negotiated away from Business Premises
(Art.6), 87/102/EEC on Consumer Credit (Art.14), 90/314/EEC on Package Travel (Art.5.3),
94/47/EC on Timesharing (Art.8), 97/7/EC on Distance Contracts (Art.12.1), 99/44/EC on
Sales of Consumer Goods (Art.7), 93/13/EEC on Unfair Clauses, the proposal for a Directive
on Distance Contracts in Financial Services (Art.11), as well as the Directive 85/374/EEC on
the Responsibility for Defective Goods (Art.12), and Directive 86/653/EEC on Self-
employed Commercial Agents (Art.19).

6.

MINIMUM HARMONISATION

According to a number of consumer protection Directives, the Member States are allowed to
introduce rules being more strict than agreed on for the Directives (cf. Directives 85/577/EEC
on Contracts negotiated away from Business Premises (Art.8), 87/102/EEC on Consumer
Credit (Art.15), 90/314/EEC on Package Travel (Art.8), 94/47/EC on Timesharing (Art.11),
97/7/EC on Distance Contracts (Art.14), 99/44/EC on Sales of Consumer Goods (Art.8) and
93/13/EC on Unfair Terms (Art.8)).

Many directives only give options for provisions, while in other directives similar issues are
regulated in a binding way (e.g., for the provision on burden of proof Directive 97/7/EC on
Distance Contracts on the one hand and Directive 99/44/EC on Sales of Consumer Goods on
the other).

57