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European contract law
With this communication, the European Commission aims to broaden the debate on European contract law by involving the European Parliament, the Council and the other stakeholders, including businesses, legal practitioners, academics and consumer groups.
Communication from the Commission to the Council and the European Parliament on European contract law [COM(2001) 398 final - Official Journal C 255 of 13.9.2001].
The approximation of certain specific areas of contract law at Community level has covered an increasing number of issues. The Community legislator has followed a selective approach, adopting directives on specific contracts or marketing techniques where a particular need for harmonisation was identified. The Commission is interested in gathering information on the need for wider-reaching Community 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 these problems are. In particular, it asks whether the proper functioning of the internal market may be hindered by problems relating to the conclusion, interpretation and application of cross-border contracts. It is also interested in whether different national contract laws discourage cross-border transactions or increase the related costs.
The communication also seeks views on whether the existing approach of sectoral harmonisation of contract law could lead to possible inconsistencies at Community or national level as regards application of the transposition measures.
If concrete problems are identified, the Commission would also like to receive views from the private sector and civil society 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. However, other solutions may be suggested by any interested party.
The proposed solutions are:
- to leave the solution of any problems identified to the market;
- to promote the development of non-binding, common contract law principles. These principles could be useful for contracting parties in drafting their contracts, for national courts and arbitrators in their decisions and for national legislators in drawing up legislative initiatives;
- to review and improve existing Community legislation in the area of contract law so as to make it more coherent or to adapt it to cover situations not foreseen at the time of adoption;
- to adopt a new instrument at Community level, combining rules on general aspects of contract law and on specific questions.
If the best solution envisaged is the adoption of a consistent and comprehensive instrument, the Commission recalls that several variables must be taken into consideration. In this connection, it will be appropriate to discuss:
- the nature of the instrument to be adopted (regulation, directive or recommendation);
- the link with the national legislation (which might be replaced or which might co-exist alongside Community legislation);
- the possibility of distinguishing between mandatory and non-binding rules;
- whether the contracting parties would choose to apply the Community instrument or whether certain rules apply automatically as a safety net of fallback provisions if the contracting parties have not agreed a specific solution.
The communication merely intends to stimulate a debate.