Institutional competition of optional codes in European contract law

The Common European Sales Law (CESL) is the European Commission’s most recent policy initiative for European contract law. It aims to address the problem that differences between the national contract laws of the Member States may constitute an obstacle for the European Internal Market. This paper develops a model of the institutional competition in European contract law and uses it to addresses the question as to whether an optional European contract code and the CESL are economically desirable for European contract law. To do so I examine the transaction costs involved in the process of choosing an applicable law that European businesses face when they conduct cross-border transactions in the European Internal Market. I then describe how these transaction costs shape the competitive environment, i.e. what I refer to as the “European market for contract laws” in which the contracting parties choose a law to govern their cross-border contracts. Having identified this environment and the competitive forces operating within it, I propose a model, the “Cycle of European Contract Law”. I use this model to analyze the competitive processes that take place in the European market for contract laws. Based on my results I make recommendations for the optimal implementation of an optional European contract code and the CESL in European contract law.     

The Freedom to Circulate Documents: Regulating Contracts in Europe

Abstract:  Evidence collected by the European Commission indicates that insofar as the diversity between laws of national legal systems presents an obstacle to trade in the Internal Market, the problem consists of the inability of businesses to use their standard terms of business in cross-border trade with confidence. It is suggested that the solution to this problem lies not in legal integration through harmonisation of the private law of contract, but rather through the creation of procedures for autonomous agreements under which representatives of parties to standard types of contracts can agree upon model contracts containing fair ancillary terms.     

Internal Market Rationality,Private Law and the Direction of the Union: Resuscitating the Market as the Object of the Political

This paper proposes a concept of ‘internal market rationality’ for the analysis of the political, legal and economic consequences of European integration. Internal market rationality refers to a specific pattern of political action in the field of internal market, which has emerged gradually due to the confluence of three main factors: first, the EU's functional institutional design; second, the processes of post‐national juridification; and third, a more contingent influence of ideas. In the interplay of those three factors, the interpretation of internal market has become overdetermined, restricting thereby the space of (democratic) politics in its regulation. This reification of internal market rationality has had a direct influence on the content of European law, as I demonstrate through the example of European private law. Internal market rationality has transformed the very concept of justice underpinning private law, the concept of the person or subject of law, the (re)distributive pattern of private law as well as the normative basis on which private law stands. I argue, finally, that a close examination of the legal, institutional and ideological arrangement behind internal market rationality provides clues for the democratisation of the EU.     

A Shift in Focus: Systematisation in European Private Law through EU Law

The discourse on the Europeanisation of private law appears gradually to be moving into new territory in which the central debate on convergence of private laws in Europe makes place for structural questions on private law development in a multi‐level European legal order. With the realisation that private law is and will remain complementary regulated at EU level and in national laws, a re‐orientation is called for that, in the words of Micklitz, ‘allows one to determine which norms shall be elaborated and enforced at what level and by whom’. This article accepts that such a re‐orientation is needed in relation to substance, process, instruments and enforcement; a more fundamental question needs to be addressed, however, in order to ensure coherence in the development of private law in Europe. As can be gleaned from existing practice in EU consumer law, competition law, and financial market regulation, a deeply engrained tension between market integration and protectionist policies in Community law has resulted in incoherent regulation at EU level, which filters through into national legal systems. This puts at risk fundamental values of private law, such as certainty and fairness. A solution for this is proposed by shifting the focus from national private laws to the political and doctrinal structure of EU private law, and the normative framework it provides. General principles of EU private law, it is argued, could and should provide a counterweight to the problem of conflicting policies and set out a guideline for the future development of European private law.     

In-Between Worlds: Marleasing and the Emergence of Interlegality in Legal Reasoning

Abstract Lawmakers and scholars are so busy looking for new ways to develop a European private law that they are failing to see the virtues of an already existing private law harmonisation tool. This tool is the requirement of interpretation in conformity with directives as it has been designed by the Court of Justice in Marleasing and its progeny. In this paper, it is submitted that this case law operating at the level of rules on legal reasoning, and not at the level of substantive law, is a far more sophisticated means of private law harmonisation than all the measures discussed in the last years. Namely, the requirement of interpretation in conformity with directives is allowing the Common Market to develop coherently without neglecting the significance of national legal cultures. How this difficult equilibrium between harmonisation and legal pluralism might be maintained by the tool the Court of Justice developed in Marleasing is explained in this paper with the help of evolutionary jurisprudence.     

Private Damages Actions Under EU Competition Policy: An Exploration of the Ongoing Sea Change in Respect of Such Actions Concerning Articles 101 and 102 TFEU Infringements

The EU has an established history of public enforcement concerning antitrust infringements under what are now Articles 101 and 102 of the Treaty of the Functioning of the European Union (TFEU). Yet, until recently, this has not been true in respect of private compensatory damages actions in relation to the said articles. Hence, these actions are now seen as reinforcing the existing deterrent provided by pubic enforcement fines. This paper focuses upon the ongoing sea change that aims to enable and encourage compensatory damages claims in relation to harm caused by breaches of 101 and 102 TFEU. It reveals that both the Court of Justice of the European Union (CJEU) and the European Commission have played pioneering roles in advancing this sea change. It further asserts that, although the rulings of the CJEU have created a hybrid architecture that makes possible private actions in relation to the said breaches under Member state procedural laws before national courts, the architecture itself is problematic as it fails to guarantee that Member states’ procedural rules have a high degree of uniformity, thereby failing to guarantee a regulatory level playing field across the Union concerning the said damages actions. Moreover, not only is the architecture problematic, but it needed further development in respect of rules and requirements in several key areas, such as the right of evidential disclosure, the limitation period issue, collective redress and the quantification of harm, so as to facilitate and encourage claims. The Commission was aware of these concerns, and this paper explores its response. The issues could have been addressed by the establishment of a set of EU procedural rules which national courts would apply in the said actions but the Commission decided upon a different way forward. Working with the said hybrid architecture, and through the vehicle of the 2014 Directive on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union, the Commission has amended and created rules and requirements which will form part of Member states’ domestic procedural law—and therefore will be applied by national courts—in order to establish a more level regulatory playing field across the Union which should facilitate and encourage private compensatory damages actions for harm caused by EU antitrust breaches. Of course, a more level playing field means that differences will still remain. Moreover, it will be some time before the success of the Directive can be gauged, and further measures may be required in the future.     

Three Principles of Transnational Corporate Bankruptcy Law: A Review

Abstract: After having discussed the weaknesses of the universalist and territorialist approaches to transnational corporate bankruptcy law, this article argues that a free‐choice régime could combine the advantage of ex post value maximisation of the firm's assets with a comparatively higher degree of ex ante predictability to investors. In addition, it could lead to a better alignment between corporate ownership structures and corporate bankruptcy régimes. Moreover, a free‐choice régime could potentially open the door for regulatory competition in corporate bankruptcy law. However, EC Regulation 1346/00 on insolvency proceedings implements a system of modified universalism, which allows for strategic ex post forum shopping by debtors while keeping the national legislatures’ monopoly in the field of corporate bankruptcy in place. It is suggested that even though it cannot be predicted that a free‐choice régime will pressure state lawmakers to improve their corporate bankruptcy laws, a system of free choice could redirect the law‐making agenda in the EU by focusing the coordination efforts of lawmakers on those issues—such as security interests in property and statutory priority rights—which could negatively affect the proper functioning of the Internal Market, while enabling Member States to customise corporate bankruptcy laws to local preferences and needs.     

美国与欧洲竞争法的差异与联系

美国对于欧洲制定竞争法虽然产生了重要影响,但是欧洲竞争法根植于欧洲本土的反垄断法律思想,体现着大陆法系法律发展的特有特征,是与美国反托拉斯法在本质上相互区别的另一种法律模式.然而随着欧洲经济一体化的加速,欧盟竞争法日益呈现出司法化的倾向,在对竞争评价以及限制竞争效果的评估方式上呈现出趋同于美国反托拉斯法的倾向,并且积极引入竞争法私人执行机制,所以,二者之间之间在法律渊源、实施机制和垄断衡量标方面既存在着差异又具有一定的联系.     

Why Do Labour Lawyers Ignore the Question of Social Justice in European Contract Law?

Abstract: Over recent years, a heated debate about social justice in European contract law has been taking place. Great emphasis is placed on ideological assumptions. For example, the over‐individualistic interpretation of European private law, its market‐led orientation and the insufficient attention paid to the idea of the protection of the weaker party. This discussion considers the traditional conflict between the meta‐principles of market‐oriented efficiency and solidarity‐based action. The whole debate, it seems to me, now calls for a more rules‐based approach. In endeavouring to validate such an approach, this article starts by illustrating the various facets connected to the theme of ‘European contract law’. Then as a preliminary step, I shall briefly examine the question as to why labour lawyers have remained silent and take no part in the discussion on European social contract law. There is ample reason to believe that the contrary is necessary. It has been generally acknowledged that labour contracts are not outside private law—individual contract law in particular—and that it represents one of the most important examples of long term incomplete contracts. The idea of labour law as autonomous is dead and it appears simple to promote the reintegration of labour law into modern social contract law. In the context of the debate on European contract law, three different strategies can be envisaged to achieve this end. The first strategy tests the degree to which provisions under the contractual regime, not all of which are legally binding, effectively meet the needs of the weaker party in the contractual relationship, in terms of his/her security—what might for short be termed the social validity of the contract regime—(the Principles of European Contract Law, the EU rules affecting contract law, etc which are analysed and proposed in the various workshops that are currently examining them), from the specific point of view of labour law. A second strategy is to codify European or Community labour law. Lastly, another strategy is to introduce an intermediate category of long‐term social contracts. What makes this last trend particularly significant for the future is that today globalisation is progressively diminishing the income earned from labour contracts and in this sense creating insecurity. In a globalised economy, where levels of remuneration are lower than in the past, the individual's sense of security must be ensured also in the context of other social or long‐term contracts (outside the workplace), which enable people to obtain other sources of finance (such as consumer credit, for example), or to make arrangements necessary for living (such as tenancy contracts). A need exists for consumers to be granted similar rights to those which historically have been granted to workers. To take just one example: if the borrower under a consumer credit agreement loses his/her job for objective reasons, or falls ill and is therefore temporarily unable to pay the instalments under the agreement, why should there not be a mechanism which limits the credit‐providing institution from terminating the credit arrangement?     

An optional European contract law code: Advantages and disadvantages

Should the EU introduce an Optional European Contract Law Code and what should it look like? By applying economic theories of federalism and regulatory competition (legal federalism), it is shown why an Optional Code would be a very suitable legal instrument within a two-level European System of Contract Laws. By allowing private parties’ choice of law to a certain extent, it can combine the most important advantages of centralisation and decentralisation of competences for legal rules. Through differentiated analyses of three kinds of contract law rules (mandatory substantive rules, mandatory information rules and facilitative law), important conclusions can be reached: which kinds of contract law rules are most suitable to be applied on an optional basis (e.g. facilitative law) and which might be less so (e.g. a core of information regulations). Furthermore a number of additional general conclusions about the design and scope of an Optional EU Code and some conclusions in regard to sales law are derived.     

欧洲共同体竞争法实施过程中面临的冲突及对策

竞争法是欧共体法律体系中影响较大的一个部门。它的形成与发展,使共同体内并存着两种相互独立的竞争法及其执行机制。因此,竞争法在实施过程中,出现了一系列的冲突和矛盾。共同体通过二次立法,采取了一系列相应的措施:重新调整竞争法主管机构的权限,平衡竞争法管辖上的矛盾;确立共同体竞争法的效力优于成员国竞争法的原则,协调共同体竞争法适用上的冲突;加强竞争法实施的国际合作,化解欧共体竞争法域外适用过程中产生的困难。这些措施有效地清除了竞争法实施的障碍,推动了欧洲经济一体化的进程。     

A European Legal Method? On European Private Law and Scientific Method

This article examines the relationship between European private law and scientific method. It argues that a European legal method is a good idea. Not primarily because it will make European private law scholarship look more scientific, but because a debate on the method of a normative science necessarily has to be a debate on its normative assumptions. In other words, a debate on a European legal method will have much in common with the much desired debate on social justice in European law. Moreover, it submits that, at least after the adoption of the Common Frame of Reference by the European institutions, European contract law can be regarded as a developing multi-level system that can be studied from the inside. Finally, it concludes that the Europeanisation of private law is gradually blurring the dividing line between the internal and external perspectives, with their respective appropriate methods, in two mutually reinforcing ways. First, in the developing multi-level system it is unclear where the external borders of the system lie, in particular the borders between Community law and national law. Second, because of the less formal legal culture the (formerly) external perspectives, such as the economic perspective, have easier access and play an increasing role as policy considerations.     

Controlling market power in the digital economy: The EU and Asian approaches

Since the turn of the millennium, digitalisation has not only radically changed economies across the world but also allowed for the rise and proliferation of digital platforms. While clearly adaptable, a perception has emerged that existing competition laws are inadequate to accommodate tech giants’ unique market positions and market power, feeding calls to not rely solely on these. The European Union (EU) has replied by adopting the Digital Markets Act (DMA), allowing for the designation of digital gatekeepers based on turnover and user numbers. In contrast, Asian countries like Korea and Japan have opted to rely on the notion of ‘superior bargaining power’ to check market power in the digital realm. While serving the same objective, the Asian approach differs by replacing the need to identify dominance as a precondition for enforcement actions. In contrast, the DMA will be applicable on an ex-ante basis but allow for concurrent policing under traditional competition law ex-post. This paper explores the matter of market power in the digital sphere and the different paths chosen to control it in Europe and Asia, focusing on the example of Korea with respect to the latter. Through a comparative study, we conclude that they are perhaps less different than initially perceived, diverging mostly in their form rather than their content or reach. However, the DMA also serves to suppress the proliferation of national legislation thwarting the European Single Market and debasing competition law. The latter could be a consequence of pressing competition laws to accommodate the special particularities of the digital economy.     

Horizontal Liability for Damages in EU Law—the Changing Relationship of EU and National Law

The article focuses on damages liability between private parties—referred to as horizontal liability—that is based on EU law. Generally, this kind of liability may be based on EU secondary legislation or be derived from substantive EU law and legal principles. The article seeks to analyse the latter: liability in an area of EU law where so‐called procedural autonomy still, at least apparently, prevails. Special attention is paid to the lively interface between EU law and national remedies and to the increasing EU law requirements for the enforcement of EU law in national courts. Recent case‐law on private liability for damages caused by competition infringements is discussed as part of a more general question concerning the ways in which the relationship of EU law and national enforcement frameworks is developing.     

In Search of Better Quality of EU Regulations for Prompt Transposition: The Brussels Perspective

Abstract:  Better regulation cannot be achieved without serious attention to transposition. The quality of EU regulation is crucial to ensuring that Community law is promptly transposed into national law within the prescribed deadlines. But good quality transposition (clear, simple, and effective) goes beyond pre-legislative consultation processes and more frequent use of impact assessments as agreed in the 2003 Interinstitutional Agreement on Better Lawmaking. Presenting new data that covers the full population of all EU transport directives from 1995 to 2004—including the national implementing instruments of France, Germany, Greece, Italy, Ireland, Spain, Sweden, the Netherlands and the UK—this study shows that elements of the EU directives delay transposition. The binding time limit for transposition, the EU directive's level of discretion, its level of detail, its nature and further characteristics of the directive's policy-making process are all factors. These determining factors are crucial to explaining why Member States miss deadlines when transposing EU Internal Market directives. Brussels' efforts to simplify and improve the regulatory environment have to go beyond more preventive action to strengthen the enforcement of EU legislation at the member-state level if they want to address the Internal Market constraining effects of Member States' non-compliance. This study argues that far-reaching decisions made in the European Commission's drafting and EU policy-making phase have the greatest effect on the European regulatory framework in which businesses operate and the free movement of goods, persons, services, and capital is at stake. Implementation should be part of the design.     

The Impact of European Integration on Private Law: Reductionist Perceptions, True Conflicts and a New Constitutional Perspective

If private law is defined simply as a matter of core areas such as substantive contract, torts, property or family law, it may be doubted whether European law has significantly affected national private law systems; or conversely, whether national private law is relevant to European integration. However, this paper argues that such conclusions are misleading: while there have been very few European interventions into the core areas of civil codes or the common law, the integration process has impacted forcefully upon deeper structures of national legal systems. Challenging the institutional embeddedness of national private law, European primary and regulatory law has remodelled (public) concepts of private autonomy, the realm of private governance and the social responsibility of private actors. How then to present and evaluate this indirect impact? Drawing upon concrete examples, this paper seeks first to understand this European challenge to the interdependence of national private law, borrowing from political science's analytical tool of multi-level governance to highlight the complex interrelations between European rights and regulatory law and national private law; and secondly attempts actively to assess the legitimacy of the impact of integration upon private law with the aid of the explicitly normative theory of deliberative supranationalism. However, precisely because Europe remains in a state of flux, and dependent upon contingent political processes, no final conclusions are drawn: as is the case with so many areas subject to integrationist logic, the contours of the ‘new European private law’ cannot be laid down in advance, and are instead a long and weary matter of cooperation and fine-tuning between national and European judiciaries.     

欧盟私法法典化与我国民法典的制订

随着欧盟一体化进程的加快,客观上要求欧盟在私法领域制定一部内部协调统一、具有宏观性、体系性的民法典,经过法学家的理论准备,欧盟官方对学术研究的响应和对私法发展方向的正确选择,最终促使《共同参考框架（草案）》（DCFR）的完成。欧盟私法法典化进程中,虽然具有浓厚的工具色彩,但融合了不同的法律文化与传统,体现出了现代私法的最新理念与精神。欧盟私法法典化在法典的制定、法典的精神以及法典的结构、内容、统一性方面,无疑对我国民法典的制定具有很大的借鉴意义。     

公平竞争权与科斯定律的潜在前提——论公平竞争权的应然性及其本质属性

科斯与萨缪尔森关于交易双方对在交易费用为零且事先不确定利润在当事人间如何划分的前提下,使双方利润总量最大化的结果是否一定出现的问题曾进行一场论战,通过两种假设及推理,可以得出科斯定律成立且能普遍适用的条件———以公平竞争权起码在一定程度上的存在为潜在的前提。在对物权、债权、公平竞争权的本质作深入的分析后可得知,公平竞争权属于商事主体的人格权的范畴。结合社会现实,我国应从私法角度强化公平竞争权的保护。     

The European Commission's Guidance on Article 102TFEU: From Inferno to Paradiso?

The European Commission has for the first time issued a document expressing its official position on the enforcement of Article 102TFEU which prohibits the abuse of a dominant position on the Common Market. The Commission Guidance on enforcement priorities in applying Article 102TFEU to exclusionary abuses (adopted in December 2008) has ended a review of about four years. Given the increased enforcement of Article 102TFEU at the European level and the fact that many national provisions in the EU on unilateral conduct are modelled after Article 102TFEU, how the Commission intends to enforce Article 102TFEU is crucial for the application of competition law and the undertakings subject to it under European and/or national laws. The review period was preceded by severe criticisms of the Commission's approach to Article 102TFEU for protecting competitors instead of competition and for being insufficiently grounded in modern economic thinking. At the heart of the review and the discussions surrounding it lay the question of the objective of Article 102TFEU. Some, including the Directorate General for Competition claimed the objective to be ‘consumer welfare’, whereas some argued that ‘consumer welfare’ cannot be adopted as the objective at the expense of the protection of the competitive process. This article critically reviews the Commission Guidance, with an eye to assessing the ultimate objective of and the test of harm under Article 102TFEU. After discussing whether the Guidance indeed sets priorities, it examines the general approach of the Guidance to exclusionary conduct. It points out that despite there being some welcome novelties in the Guidance, there are also suggestions therein whose legitimacy and legality are questionable. Reflecting on the Guidance as a soft‐law instrument, the article argues that although regarding the objective of Article 102TFEU, the Commission's apparent tendency towards ‘consumer welfare’ is not unlawful, the reform of Article 102TFEU to bring it more in line with modern economic and legal thinking seems to be far from complete.