Index

Accademia dei Giusprivatisti (Pavia Group) Code 15–16

acquis communautaire 51–101; areas excluded 52–4; background 51–2; conclusion 100–1; consumer see consumer acquis review; formation see formation; injunctions 99–100; key directives 54–64; nonperformance see non-performance; performance see performance; pre-contractual see pre-contractual information duties; substance 80–9; validity 79

Acquis Group (Research Group on the Existing EC Private Law) 15, 152; and CFR 152, 153–5

agency, commercial 61, 79 approximation 9

autonomous interpretation 109–10, 128–9

Beale, H 184

Bussani, M 16

caveat emptor 134

CFR see Common Frame of Reference

civil law: and common law 185–7; systems 3, 4

Collins, H 183–4 commercial agency 61, 79;

implementation in UK 124–30; performance/remuneration 92–4; termination payments 98–9

commercial debts, late payment 62, 87–8

Commission see European Commission (EC)

Common Core Project (Trento project) 16–17

Common Frame of Reference (CFR) 139, 144–59, 190–2; and arbitration 151; conception 144–5; and consumer law 147–8; critiques 144–6, 191; definitions 145–6; and ECJ 151; and EU contracts 151; functions 148–51; and implementation 149–50; model rules 146–7, 148–9, 154; as national guidance 150; and social justice Manifesto 165–6; terminology 145, see also Draft Common Frame of Reference (DCFR)

common/civil law divide 185–7 compensation and indemnity 124–30 competence 25–7, 34, 166–72;

background 166–7; judicial co-operation in civil matters 167–9; legal basis 171–2, 176; open method of co-ordination (OMC) 172; residual 169–71

competition law 52 conferred competence 26 connected lender liability 98

consumer acquis review 54–5, 172–9; current acquis 54–61; evaluation 178–9; good faith/fair dealing 177; information duties 177; legal basis 176; minimum to maximum harmonisation 175–6; remedies 178; right of withdrawal 178; vertical to horizontal 173–4

208 Index

consumer confidence 31–3 consumer contract law 30–3 consumer credit 60–1, 66, 76–7, 98;

early repayment 92, see also unfair credit terms

consumer goods, sale of 59–60 consumer guarantees 59–60, 86–7 consumer protection 28, 33–4; acquis

54–61; and CFR 147–8; directorate

51

consumer sales 91

contract: definitions 2; EU impact on UK law 133–7; standard terms, EU-wide 142–3; uberrimae fidet 134

convergence 9

CoPECL network 151–3, 156, 157, see also Principles of European Contract Law (PECL)

credit terms, unfair 58

damages 95, see also remedies DCFR see Draft Common Frame of

Reference

DG SANCO/MARKT 52 direct e ect 112

directives 34–43; background 34–5; and Europeanisation 42–3, 138; and harmonisation see harmonisation; implementation see implementation; legislative procedure 35; state liability 39–40

distance selling 57, 64, 73–4, 89; financial services 57–8, 64, 74–6, 77–8

domestic courts see national courts doorstep selling 55–6, 64, 69, 71–3,

77; implementation in UK 116–18 Draft Common Frame of Reference (DCFR) 151–9; and Acquis Group

152, 153–5; critique of research 156; final/follow-up versions 158–9; interim version 157; and minimum harmonisation 154; model rules 154; policy choices 155–6; research network 152–3, see also Common Frame of Reference (CFR)

EC see European Commission (EC) ECJ see European Court of Justice electronic commerce 61–2, 66, 78–9

English law 3

European Civil Code, Study Group 152–3

European Commission (EC): A More Coherent European Contract Law - An Action Plan 141; Communication on European Contract Law 140

European Contract Code, debate 181–90; background 181–2; common/civil law divide 185–7; economic benefits/comments 182–5; and European legal culture 187–9; political vision 190; and social justice 189

European Court of Justice (ECJ) 43–50; and CFR 151; enforcement action 48–9; preliminary rulings 43–8, 130–3; role 49–50

European legal culture 187–9 Europeanisation: background 8; and

directives 42–3, 138; EU’s contribution 10–11, 139, 179–80; and legal education 17–19; and regulatory competition 11–12; as scholarly endeavour 12–17; spontaneous 11; terminology 9

fair dealing 177 fairness see unfairness

financial services, distance selling 57–8

formation 71–9; by electronic means 78–9; post-formation information duties 78; withdrawal see right of withdrawal

free movement, and national rules 21–5

Gandolfi, Professor 15 gift, as contract 2

good faith: concept 81–2; consumer acquis 177; implementation in UK 121–4, 137

Green Paper on the Review of the Consumer Acquis 172–9

guarantees, consumer 59–60, 86–7

harmonisation 9, 25, 27–8, 29–30; directives 38–9, 54–5; maximum

see maximum harmonisation; minimum see minimum harmonisation

horizontal approach 173 horizontal direct e ect 112

implementation 36–9, 103–8; ambiguities 107–8; background 103–4; general issues 104–8; minimum harmonisation 41–2, 105–6; regulatory options 106; resolution by member states 106–7, see also post-implementation

implementation, in UK 113–19; and courts see national courts; evaluation 119; framework 113–15; minimum harmonisation 115–16; open issues 116–18, see also post-implementation

indemnity 124–30 indirect e ect 112

information duties 177; postinformation 78; pre-contractual see pre-contractual information duties

injunctions 99–100

insurance mediation 62, 67, 69 intelligible language 85–6 internal market 25–6, 28–30; and

consumer contract law 30–3; protectorate 51; role of law 184–5

ius commune 3; casebook project 18–19

Kenny, M 152, 179

Lando Commission 13–14, 15, 151 Lando, O 186, 187, 188

late payment of commercial debts 62, 87–8

legal bases 27–34, 171–2, 176 legal culture 187–9

legal education, and Europeanisation 17–19

Legrand, P 186

life assurance 62, 67, 70, 77

McGregor contract code 16

Mance, J 152

Mattei, U 16

Index 209

maximum harmonisation 40–1; and minimum harmonisation 175–6

mediation, insurance 62, 67, 69 minimum harmonisation 41–2, 105–6,

115–16; and DCFR 154; implementation 41–2, 105–6; and maximum harmonisation 175–6; in UK 115–16

misrepresentation 134–5

national courts: challenges 110–13; and commercial agency 124–30; interpretation/application 119–21; preliminary reference to ECJ 43–8, 130–3; and unfair contract terms 121–4

national rules, and free movement 21–5

non-conforming goods 95–8; inconvenience 97; price-reduction 98; reasonableness test 96–7; repair/replacement 95–6; rescission 98

non-discrimination law 53 non-performance 95–9; commercial

agency see commercial agency; connected lender liability 98; damages 95; non-conforming goods see non-conforming goods, see also performance

OMC (open method of co-ordination) 172

open method of co-ordination (OMC) 172

optional instrument (OI) 159–64; background 159–60; and CFR 163, 164–5; optionality 160–2, 163–4; scope 162–3; and social justice

Manifesto 165–6

package travel 58–9, 65, 69, 90, 95

Pavia Group Code 15–16 payment services 63, 68, 70;

information/performance 94 PCIDs see pre-contractual

information duties

PECL see Principles of European Contract Law

210 Index

performance 89–94; commercial agency see commercial agency; consumer credit see consumer credit; and information 89; payment services see payment services; sale of goods 91–2; specific 136–7; substitute 89; timing 89; variation 90, see also non-performance

plain language 85–6 post-formation information duties

78

post-implementation 108–13; autonomous interpretation 109–10; background 108–9; defective implementation 111–12; direct/ indirect e ect 112; national courts see national courts; terminology 111, see also implementation; implementation, in UK

pre-contractual information duties (PCIDs) 63–71, 134–5; background 63–4; conclusion 71; content of information 64–8; form/style 69–70; language 70; misrepresentation 134–5

preliminary rulings (ECJ) 43–8

Principles of European Contract Law

(PECL) 13–17, 147, see also CoPECL network

private international law 4–8; applicable law 5–8; jurisdiction 5

proportionality principle 27

regulatory options 106 remedies 178, see also damages

Research Group on the Existing EC Private Law see Acquis Group

restraint of trade 88–9 retention of title 88

right of withdrawal 71–7; comment 77–8; consumer acquis review 178

Rott, WH 105–6

sale of consumer goods 59–60 sale of goods 91–2

services 62–3, 67, 70; payment 63, 68, 70

SGECC (Study Group on a European Civil Code) 14–15

social justice: and CFR 165–6; and European Contract Code 189

specific performance 136–7 standard contract terms, EU-wide

142–3

Study Group on a European Civil Code (SGECC) 14–15

Study Group on Social Justice in European Private Law, Manifesto 165

subsidiarity principle 26–7 substance of contract 80–9

timeshare 59, 65, 70 title, retention of 88

travel law 52–3; package travel 58–9, 69

Trento project 16–17 Tuori, K 187–8

unfair commercial practices 53–4 unfair contract terms 80–6;

implementation in UK 121–4; plain/intelligible language 85–6; scope of directive 80–1

unfair credit terms 58 unfairness: consequences 85; test

81–4, 121–4 unification 9

validity 79

vertical approach 173 vertical direct e ect 112

Wilhelmsson, T 1

withdrawal see right of withdrawal

Zimmerman, R 4