Brussels, 3 April 2002
Feedback on Commission's European Contract Law initative now published
In July 2001, the European Commission published its Communication on European contract law to gather information on the need for fartherreaching Community action in this area. The consultation procedure it launched has generated a lively debate on European contract law and the future approach to legislation in this field on Community level. Stakeholders and interested parties responded in large numbers; Member States presented their opinions. The European Parliament and the Council have adopted reports which set an agenda for further action in a number of areas. The Commission will come forward with a follow-up of its Communication before the end of this year and published a synthesis of all contributions at: http://ec.europa.eu/consumers/policy/developments/contract_law/comments/summaries/sum_en.pdf
The Communication has so far yielded more than 160 comments from governments and all sections of society, including businesses, legal practitioners, academics and consumer organisations. Health and Consumer Protection Commissioner David Byrne, also speaking on behalf of his colleagues Frits Bolkestein and Erkki Liikanen, said: "The reaction to the Communication has shown that the debate on the future work in the area of European contract law is now also taking place outside the academic world. We now have a clearer picture of the problems of cross-border contracts and how to tackle them. European Parliament and Council agree that something needs to be done where contract law problems remain. They have invited the Commission to submit its recommendations, if necessary, in the form of a Green or White Paper by the end of 2002 and to suggest an action plan." He added: "A lot of work lies ahead of us and the Commission intends to come forward with a follow-up of its Communication before the end of the year."
Of all comments received, only a very small minority responded in favour of the first of four options offered by the Commission's Communication, which is to leave solutions to problems identified to the market. There is considerable support for the second option, i.e. the development via research - of common principles of European contract law. A large majority emphasised the need to review the existing acquis in order to achieve a greater degree of coherence and simplification (third option). A majority is, at least at this stage, against the fourth option, i.e. a new instrument on European contract law. However a strong body of opinion suggests further thought might be given to this in the light of development in the second and third options.
During the last 20 years, the harmonisation of EC contract law has progressed considerably, particularly in the area of consumer contract law. In doing so, the Community legislature has followed the approach of harmonising certain types of contracts or certain forms of marketing and Community action has not gone beyond this. The Commission asked the addressees of its Communication to report any problems existing despite, or perhaps as a result of, this approach. Two areas of potential problems were mentioned in the Communication. First, the diversity of national contract laws which may result in barriers to the smooth functioning of the Internal Market. Second, that the uniform application of Community law, in particular, the consistency amongst EU legislative instruments might be affected.
The Communication suggested four options if the "case-by-case approach" followed by existing EU legislation does not fully solve the problems. Those options were not exhaustive and could be combined:
Option I: To leave the solution of any identified problems to the market.
Option II: To promote the development - via research - of non-binding common contract law principles, useful for contracting parties in drafting their contracts, for national courts and arbitrators in their decisions and for national legislators when drawing up legislative initiatives.
Option III: To review and improve existing EC legislation in the area of contract law in order to make it more coherent or to adapt it to cover situations unforeseen at the time when the legislation was adopted.
Option IV: To adopt a new instrument at EC level. Different elements could be combined concerning the nature of the act to be adopted (regulation, directive or recommendation), its relationship with national law (which could be replaced or with which it could co-exist) and whether the contracting parties would choose to apply the EC instrument or apply the European rules automatically as a safety net of fallback provisions if the contracting parties had not agreed on a specific solution.
European Parliament Resolution responding to the Communication on 15 November 2001: http://europarl.europa.eu/plenary/default_en.htm
Council report of 16 November 2001:
Commission's analytical document:
Communication from the Commission to the Council and the European Parliament on European Contract Law, COM (2001) 398 final, Official Journal (2001/C255/01).