Экзамен зачет учебный год 2023 / Ramaekers, EU Property Law

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provides access to the land registers of the connected countries.53 However, until this project is completed, it may not be fair to expect third parties to respect the property rights created by others under foreign law if they cannot know of their existence or content. Swiss law has tried to solve this problem by making such a choice of property law only valid inter partes.54 Van der Weide questions the usefulness of such a choice of law if it cannot be made erga omnes.55 Flessner argues the contrary. He presents a theory according to which the use and protection of a property right must be governed by the lex rei sitae but the creation or transfer of property rights should be governed by the law chosen by the parties or by the law that is otherwise applicable to the parties’ agreement.56 I must agree with Van der Weide, though, that if a choice of property law is only valid between the parties to the agreement and cannot be invoked against third parties, then it only has a limited meaning. Between the parties to the agreement, the choice is meaningful, particularly as long as the debtor does not become insolvent (which is true for most cases). However, if the debtor does become insolvent then the choice of law that he and the creditor have made, to govern a security right created in favour of the creditor, will be of no avail to the creditor if he cannot invoke it against third parties, e.g. other (secured) creditors of the debtor.57 In any event, it must be noted that choice of law in property law only solves the problems currently caused by the application of the lex rei sitae rule if it is accepted in all the Member States.58 Otherwise, ‘limping’ proprietary relationships will again arise.59 One country applying the lex rei sitae could negate the choice of property law made by parties under the law of another country which does permit such a choice of property law.

3.1.5. Mutual Recognition and Country of Origin Principle

EU law might already provide a conflicts rule that could replace the lex rei sitae, namely the country of origin principle. The country of origin principle and the principle of mutual recognition are often discussed together, but it is not entirely

53At the time of writing (June 2012) there are 5 connected countries and 15 pending countries.

54Art. 104 Bundesgesetz über das Internationale Privatrecht (IPRG):

‘1 Die Parteien können den Erwerb und den Verlust dinglicher Rechte an beweglichen Sachen dem Recht des Abgangsoder des Bestimmungsstaates oder dem Recht unterstellen, dem das zugrundeliegende Rechtsgeschäft untersteht.

2 Die Rechtswahl kann Dritten nicht entgegengehalten werden.’

55Van der Weide 2006, p. 233.

56Flessner 2010, p. 145. An English version of this contribution has been published as A. Flessner, ‘Choice of Law in International Property Law - New Encouragement from Europe’ in R. Westrik & J. van der Weide, Party Autonomy in International Property Law (München: Sellier, 2011). Other contributions in this publication on choice of law in property law include: J. van der Weide, ‘Party Autonomy in Dutch International Property Law’; J. von Hein, ‘Party Autonomy in International Property Law: A German Perspective’; and V. Sagaert, ‘Party Autonomy in French and Belgian Law’.

57In the words of Bouckaert, this would be a ‘lame duck security’; Bouckaert 2006, p. 189.

58Cf Polak 2006, p. 125.

59Van der Weide 2006, p. 235: ‘hinkende goederenrechtelijke rechtsverhoudingen’. ‘Limping’ legal relationships are legal relationships that may have a different legal effect in one country than in another, because a different law applies from country to country; cf Saarloos 2010, p. 3; Knot 2008, p. 6; Carruthers 2005, p. 199.

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clear what these two principles entail. Are they two sides of the same coin or must they be regarded separately? Do the differences in interpretation of these principles stem from a difference in point of view, i.e. do some people interpret them from an EU law point of view and other people from a private international law (PIL) point of view and is that the cause of differing interpretations? Is the country of origin principle a private international law rule or is it an obligation to mutually recognize, which replaces national private international law rules?60 This study is not the place to go into an in-depth analysis of the discussion on these principles; they deserve a more detailed study in future research. I will try to capture the essence of the debate here, focusing on the main question of this section, which is whether there are viable alternatives to the lex rei sitae. The country of origin principle may be such an alternative.

Basedow sees in the concept of mutual recognition a versteckte Kollisionsnorm – a hidden conflict of laws rule.61 The Commission’s 1985 White Paper on Completing the Internal Market62 led him to ask the question whether the programme for the internal market, as expressed through the case law and the policy of the EU institutions, contains hidden conflict of laws rules that set aside the private international law of the Member States as a result of the supremacy of EU law.63 Mutual recognition – stemming originally from the ECJ’s judgment in Cassis de Dijon64 – means having to recognize the regulatory system of another Member State under which a product was marketed, a service was provided, a company established.65 That also means accepting the existence of foreign legal concepts within the territory of the host Member State.66 As a result, mutual recognition is a hidden conflict of laws rule that indicates the law of the country of origin as the applicable law.67 Basedow’s analysis does not stop here. According to him, the application of the country of origin principle does not just entail a decision on the applicable law but also the application of a favor offerentis or Günstigkeitsprinzip: the law of the country of origin of a good or service (or company) has to be respected in the host Member State, unless the law of the host Member State provides more favourable conditions for the good, service or company from the original Member State.68

60Heiderhoff 2007, p. 223 at no. 259.

61Basedow 1995, p. 15.

62COM(85) 310 final.

63Basedow 1995, p. 4-5: ‘Und hinzu kommt zweitens die Frage, ob nicht das Kriterium für die Auswahl der maßgeblichen Rechtsordnung gerade durch den Grundsatz der gegenseitigen Anerkennung gleichwertiger Lösungen determiniert ist, ob also das in Rechtsprechung und Politik der Gemeinschaftsorgane ausformulierte Binnenmarktprogramm versteckte Kollisionsnormen enthält, die wegen des Vorrangs des Gemeinschaftsrechts das IPR der Mitgliedstaaten verdrängen.’

64Case 120/78, Rewe v Bundersmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649.

65Cassis de Dijon, para. 14. See also Basedow 1995, p. 14; Roth 2003; Kieninger 2002, p. 354; Von Wilmowsky 1998, p. 12.

66Cf Kuipers 2009, p. 68.

67Basedow 1995, p. 13-15. See also Verhagen 2007a, p. 32.

68Basedow 1995, p. 16. See also Michaels 2006a, p. 13.

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requirements.76 From an internal market perspective, could the country of origin form an alternative to the lex rei sitae so as to reduce obstacles to free movement? Certainly, if mutual recognition and the country of origin principle, as interpreted here, were to be extended to include mutual recognition of property regimes, then that would negate the application of the lex rei sitae rule.77 The benefits of using the country of origin as a connecting factor to determine the applicable law is that it provides more legal certainty and prevents additional costs for the seller to compensate for a potential loss of a property right in cross-border trade. The seller will not have to create separate security rights for every Member State that his goods might travel to or through and will not have to make use of alternative means of providing security that will be recognized in other Member States to cover the risk of non-recognition of the original security right of his choice. Of course, courts would be faced with 26 foreign property regimes,78 with all the difficulties that this entails, although it is a matter of opinion whether this would be more or less problematic than courts facing 26 foreign company regimes as they now do as a result of the CJEU’s judgments in Centros, Überseering and Inspire Art.79

If the country of origin principle is not accepted as a conflict of laws rule and the lex rei sitae rule continues to be applied, then the development of a European property law may nevertheless necessitate a new interpretation of this rule. One could ask the question: what is still the lex now that there is so much (directly effective) EU law? The cases of Van Gend & Loos and Costa v E.N.E.L. have established that European law has direct effect within the national legal systems and supremacy over any national law conflicting with European law, provided certain criteria are met.80 The four freedoms certainly meet those criteria81 and are therefore part of the national law. Therefore, even if the lex (i.e. the applicable law) is national law, the rules on freedom of movement have become part of national law and have to be applied as the lex rei sitae. Consequently, national courts – which are after all also Community courts82 – could no longer just apply national law as the lex rei sitae

76Cf Heiderhoff 2007, p. 227; Kuipers 2009, p. 79.

77Basedow 1995, p. 5: ‘[…] ob also das in Rechtsprechung und Politik der Gemeinschaftsorgane ausformulierte Binnenmarktprogramm versteckte Kollisionsnormen enthält, die wegen des Vorrangs des Gemeinschaftsrechts das IPR der Mitgliedstaaten verdrängen’. See also Michaels 2006a, p. 13: ‘[The country of origin principle] would be a challenge only for strictly territorialist conceptions of private international law.’ The lex rei sitae is of course such a territorialist conception of PIL.

78In the EU-27.

79Roth 2003. See also Michaels 2006a, p. 10; Kuipers 2009, p. 68-75.

80Case 26/62, NV Algemene Transporten Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration [1963] ECR 3; case 6/64, Flaminio Costa v E.N.E.L. [1964] ECR 1141. Treaty provisions are directly effective where they specifically grant rights or impose obligations on individuals and Member States. The supremacy of EU law follows from the transfer of powers from the Member States to the Union, limiting the Member States’ powers and creating a new, supranational legal order.

81Free movement of goods: case 74/76, Ianelli & Volpi SpA v Ditta Paolo Meroni [1977] ECR 557, para. 13; free movement of persons and services: case 41/74, Van Duyn [1974] ECR 1337, para. 8, and case 33/74, Van Binsbergen [1974] ECR 1299, para. 27 respectively; free movement of capital: joined cases C-163/94, C-165/94 and C-250/94, Sanz de Lera and others [1995] ECR I- 4821, para. 48.

82Claes 2006, p. 58 et seq.

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but would also have to apply the rules on free movement, which is not new in general, it may just be new for property law. In case of a conflict between the free movement rules and rules of national law, the free movement rules must be given priority as a result of the supremacy of EU law. Along similar lines it could be argued that the situs is no longer any individual Member State but the entire – boundary-free – internal market.

3.2.Preliminary Conclusions

Changing the connecting factor from the location of the object to the registration, origin or destination of the object, or to the law governing the underlying contract of a property relationship, would only solve the problems that currently occur in the internal market due to the application of the lex rei sitae rule if all the Member States would adopt the new connecting factor. Say, for instance, that Germany and the Netherlands both adhere to the lex registrationis rule. If person A registers a car in Germany and then transfers ownership of the car in accordance with German law to person B in the Netherlands, then that transfer would be valid in the Netherlands as well as in Germany under German law as the lex registrationis. However, if only Germany applied the lex registrationis, but the Netherlands still applied the lex rei sitae, then the validity of the transfer of ownership of the car, once the car reached the Netherlands, would be decided under Dutch law, not German law. Uniform use of one connecting factor to decide on the law applicable to transfer and creation of property rights throughout the EU would therefore be necessary. Such a change from the lex rei sitae rule to another private international law rule would therefore have to be made through mandatory EU legislation, preferably a regulation.83 Article 81 TFEU (ex Art. 65 EC) could provide the legal basis for this and speaks of ‘measures’, leaving it up to the EU legislature to choose between a regulation or a directive. PIL measures may be enacted ‘particularly when necessary for the proper functioning of the internal market’ (Art. 81(2)). This wording deviates slightly from the wording of Article 65 EC, which stated: ‘in so far as necessary for the proper functioning of the internal market’. The new wording seems to suggest that measures based on Article 81 could be enacted for other purposes than the proper functioning of the internal market.84 Measures taken under Article 81 are however restricted to cross-border situations. The question is whether this is a problem for the creation of rules of private international law. Rules of PIL only come into play in cross-border situations, not in purely internal ones. The fact that Article 81 is limited to cross-border situations should therefore not be problematic for the creation of European rules of PIL. What might however be a problem is the limitation of Article 81 in a territorial sense. The United Kingdom, Ireland and Denmark will only be bound by measures taken on the basis of Article 81 if they opt into them.85 As

83Johnston and Unberath point out that ‘Regulations are also preferred in private international law’; Johnston & Unberath 2010, p. 91.

84Cf Basedow et al. 2011, p. 17.

85Protocol (No. 21) on the Position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, [2010] OJ C 83/295; Protocol (No. 22) on the Position of Denmark with Annex, [2010] OJ C 83/299. See also Basedow et al. 2011, p. 18.

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explained above, replacing the lex rei sitae rule with another rule of PIL can only solve the problems within the internal market if the new rule is adopted EU-wide. If such a measure is adopted on the basis of Article 81, an EU-wide adoption could be at risk if any of the aforementioned three countries decides not to take part.

Even if all the Member States would adopt one of these new connecting factors, it remains to be seen whether the problems originally caused by the lex rei sitae would really be solved. Adhering to the lex registrationis would imply recognizing property rights validly created under the lex registrationis as such, i.e. without changing them into the nearest equivalent under the receiving Member State’s own numerus clausus, even if they are foreign. This is exactly what countries are currently unwilling and/or unable to do and why they adhere to the lex rei sitae. Having to accommodate property rights from potentially 2686 foreign legal systems would put an enormous strain on the national courts and can certainly be called undesirable. Applying the lex destinationis does not lead to this problem, provided that the parties actually create a property right that is valid under the lex destinationis. Furthermore, given that many proprietary issues in relation to transported goods often occur upon delivery of the goods,87 an added advantage of the lex destinationis would be that the court asked to adjudicate these issues can apply its own national law. Other problems may arise, though. A first problem is the interpretation of the lex destinationis. If this rule is interpreted in the sense that the property right created by the parties under the lex destinationis only comes into existence once the object actually reaches the country of destination then it is unclear what – if any – property right exists in relation to the object if it does not reach the country of destination. The lex destinationis could also be interpreted as meaning that the property right created under the lex destinationis comes into existence immediately, before the object has actually reached the country of destination. Application of the lex destinationis in this manner could, however, be susceptible to fraud. If party A and party B, both living in France, decide to create an Italian right of pledge on a car that will supposedly be exported to Italy, what guarantee is there that the car will actually be exported to Italy?88 A rule could be made, stating that the property right does not come into being unless and until the object is actually put on transport. Nevertheless, such a rule remains very much open to interpretation. These objections lead to the conclusion that replacing the lex rei sitae with the lex registrationis or the lex destinationis does not necessarily improve the situation within the internal market. Whether it would be more helpful to replace the lex rei sitae with a mutual recognition and country of origin principle remains difficult to say, as long as there is no definitive interpretation of these two concepts.

It must be concluded that if EU measures of PIL are considered as a replacement for the lex rei sitae rule, they must be uniformly applied throughout the EU and it must be carefully considered whether the new measure is actually an

86In an EU-27. There may be more foreign legal systems than there are Member States, given that, for instance, Scottish law differs from English law within the UK.

87Verhagen 2007a, p. 13-14.

88Cf Carruthers 2005, who signals a similar potential for abuse as regards the lex rei sitae rule itself – p. 209.

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improvement to the lex rei sitae. As was shown above in the discussion of the lex registrationis, Europeanization of not just the PIL rules but also of substantive rules of property law may be necessary.89

4.Cross-Border or Purely Internal Situations90

After listing the seven policy options, the Commission went on to consider whether any instrument adopted should be applicable to cross-border situations only or also to purely domestic situations.91 The Commission differentiates between B2C and B2B contracts. It believes that in B2C contracts, an instrument applicable to both cross-border and domestic situations, ‘would impact on consumers who may not wish to venture into the internal market and prefer to preserve national levels of protection’.92 For B2B contracts, on the other hand, the Commission favours an instrument applicable to both cross-border and domestic situations, as it opens up the possibility for business to trade everywhere in the internal market on the basis of a single set of rules.93 While the Commission’s considerations with regard to consumers are understandable, there may be no need for concern. In the case of an optional instrument (policy Option 4 in the Green Paper), the consumer is left free to choose national law as the applicable law to the transaction, so that he does not have to ‘venture into the internal market’ if he prefers not to.94 Furthermore, creating separate instruments for B2B contracts and B2C contracts would mean that businesses could still not trade on the basis of a single set of rules, regardless of whether these instruments applied only to cross-border trade or also to domestic trade.95 As Basedow et al. point out, ‘[p]arallel regimes [...] are not only uneconomical from the point of view of legislative technique, but are also a potential source of inconsistencies and contradictions’.96

If the decision – whether or not to apply an instrument also to purely internal situations – is left to the Member States, voluntary harmonization97 might arise

89Cf Kieninger 2004b, p. 18.

90This section pertains to the concepts of ‘cross-border’ and ‘purely internal’ situations as used in EU law. Private international law also distinguishes between national and international cases but the line drawn by PIL is not necessarily the same as the line drawn by EU law. Furthermore, the EU categories of cross-border and purely internal are redefined regularly by CJEU case law (see fn. 91 below) and will also, for that reason, not always overlap with the PIL categories of national and international. This section is restricted to the EU concepts of cross-border and purely international situations, and does not discuss the PIL distinction between national and international cases.

91For the difference between cross-border and purely internal (or domestic) situations, see the case law discussed in Chapter 2, section 1. Cross-border or purely internal situation?

922010 Green Paper, p. 12.

93Hesselink et al. put forth a similar opinion already in 2007: Hesselink, Rutgers & Booys 2007, p. 27. See also Schulte-Nölke 2007, p. 349.

94See supra, note 92.

95Basedow et al. 2011, p. 51; Smits 2011, p. 29.

96Basedow et al. 2011, p. 49. The Commission itself signals this potential problem: p. 11-12 of the 2010 Green Paper.

97That voluntary harmonization can be successful may be illustrated by the 1988 United Nations Convention on Contracts for the International Sale of Goods (CISG): ‘The Convention

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among those Member States that make the European option available for purely internal situations, either as an alternative to their own rules or as a replacement for their own rules.98 One could envisage a situation in which the European rules are the default option for cross-border situations, leaving it up to the parties to opt out of them, and in which the national rules are the default option for a purely internal situation, leaving it up to the parties to opt into the European rules.99 This could however lead to demarcation problems: it is not always easy to establish when a situation is a cross-border situation or a purely internal situation.100 These demarcation problems can be avoided by applying the instrument to both situations or, in the case of an optional instrument, by making the European regime available to parties in both situations. That would also prevent instances of reverse discrimination, which would arise if the instrument were only available for parties trading cross-border.

In conclusion, any instrument adopted by the Commission should be applicable to both cross-border and purely internal situations and to both B2B and B2C transactions. Otherwise, both consumers and businesses will be subject to two parallel regimes, something which could greatly reduce the attractiveness of the instrument.101 The problem of being subject to several regimes was one of the main reasons for drafting an instrument on European contract law,102 and is a similarly important reason for developing an instrument on EU property law. This problem will not be solved by introducing a new regime that cannot be relied on throughout the entire Union, for all transactions.

5.Non-Binding Options

Policy options 1-3 of the 2010 Green Paper are non-binding options of a nonlegislative nature. Options 1 and 3 suffer from similar disadvantages. Option 1 – Publication of the results of the Expert Group – is not a very effective option. In general, Option 1 would not help to remove the obstacles in the internal market caused by the divergences of the national laws, given that it would have no formal authority or status.103 More specifically, the results of the Expert Group in the area of property law are far fewer than in the area of contract law. The most recent achievement – the publication of the feasibility study104 – does not contain any parts on property law. As far as property law is concerned, therefore, the Expert Group has not yet produced the ‘practical and user-friendly text’105 that could serve as inspiration for legislatures and contracting parties. Indeed, the Commission’s

when it came into force did not represent the law of any nation state. But since 1988 it has been enacted as law in 54 countries’; Watson 2000, at section VI.

98Cf Drobnig 1997, p. 493.

99Cf Wagner 2002, p. 1023. See also infra at section 6.3. Opt-in or opt-out.

100See supra note 91. See also Basedow et al. 2011, p. 53.

101Basedow et al. 2011, p. 52 at footnote 172, and p. 53.

1022010 Green Paper, p. 2; Smits 2011, p. 29.

1032010 Green Paper, p. 8.

104To be found at: <http://ec.europa.eu/justice/policies/consumer/docs/explanatory_note_re sults_feasibility_study_05_2011_en.pdf>.

1052010 Green Paper, p. 7.

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Proposal for a Regulation on a Common European Sales Law (CESL),106 which was adopted in October 2011 as a result of the 2010 Green Paper, does not contain any property law.107 Option 3 – an instrument of European Contract Law (or Property Law) attached to a Commission Recommendation addressed to the Member States – could either encourage the Member States to replace their national law with the recommended instrument or offer it as an optional regime to contracting parties.108 Option 3 suffers from a similar deficiency as Option 1, namely that a Recommendation is not binding for the Member States109 who would be free to choose whether, how and when to implement it. As a result, the discrepancies between the national laws would not be remedied.110

Option 2 – an official ‘toolbox’ for the EU legislature – also has the downside of not being able to remove divergences between national laws.111 Nevertheless, it is an interesting option in the sense that it could compel the EU institutions to be more consistent and coherent when legislating in the area of European contract law (or property law). Such a toolbox could be adopted in the form of a Communication or Decision, which would make the instrument immediately effective upon adoption by the Commission but it would not have to be considered by the Parliament and Council when proposing amendments.112 A toolbox binding both the Commission as well as the Parliament and the Council could be laid down in an interinstitutional agreement.113

5.1.Inter-Institutional Agreement on a ‘Toolbox’ for European Property Law

Inter-institutional agreements (IIAs) are a type of soft law within the EU. They are agreements between EU institutions and can form the basis for subsequent hard law.114 They may be of a binding nature.115 Whether an IIA containing a ‘toolbox’ would be binding upon the Institutions would highly depend on the wording.116 An advantage of using an IIA could be that the Institutions should motivate any deviation from it.117 Whether they are actually under an obligation to do so is not

106COM(2011) 635 final.

107Recital 27.

1082010 Green Paper, p. 8-9.

109Art. 288 TFEU: ‘Recommendations and opinions shall have no binding force.’

110Cf Basedow et al. 2011, p. 14-15.

1112010 Green Paper, p. 8.

1122010 Green Paper, p. 8.

113Basedow et al. 2011, p. 10.

114Craig & De Búrca 2008, p. 87 and 129.

115Art. 295 TFEU.

116Cf Case C-25/94, Commission v Council [1996] ECR I-1469, para. 49: ‘It is clear […] from the terms of the Arrangement, that the two institutions intended to enter into a binding commitment towards each other.’ See also Basedow et al. 2011, p. 11; Hesselink, Rutgers & Booys 2007, p. 68.

117Cf European Parliament resolution of 3 September 2008 on the common frame of reference for European contract law, B6-0374/2008, at 10: ‘Suggests that, if used as a non-binding legislative tool, the relevant parts of the CFR should be appended to any future legislative proposal

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entirely clear. Article 296 TFEU (ex Art. 25 EC) states that ‘[l]egal acts shall state the reasons on which they are based and shall refer to any proposals, initiatives, recommendations, requests or opinions required by the Treaties.’ It cannot be said with certainty whether the duty to state reasons – in this case the reasons for deviating from the IIA – as laid down in Article 296 TFEU also applies to IIAs as well. The duty to state reasons applies to legal acts, but Article 289(3) TFEU indicates that there is a difference between legal acts and legislative acts: ‘Legal acts adopted by legislative procedure shall constitute legislative acts’. An IIA is not a legislative act but it is a legal act. As a result, the duty to state reasons as laid down in Article 296 also applies to IIAs.118

An IIA containing a framework of definitions and basic principles could ensure more coherence in future legislation.119 As was shown in Chapter 4, the use of property law terminology in European legislation is for the moment still very incoherent and inconsistent. Such an IIA may also be an ‘adequate follow-up’120 to the Interinstitutional Agreement on Better Lawmaking. This IIA ensures that the legislative institutions shall ‘promote simplicity, clarity and consistency in the drafting of laws and the utmost transparency of the legislative process’.121 An IIA on property law may moreover form an interpretation guideline for the ECJ. It has been suggested on several occasions that the DCFR should be adopted in the form of an IIA.122 The DCFR – particularly for property law books VIII, IX and X – could certainly provide a basis or source of inspiration to shape the content of an IIA. However, Hesselink, Rutgers and De Booys warn that this may ‘raise issues of competence creep’.123 The DCFR covers such an extensive area that it may go beyond the competences of the EU legislature to enact it as a regulation or a directive. To then enact it as an IIA might be to circumvent the principle of attributed competence (Art. 5 TFEU) through the back door.

Nevertheless, an IIA might be suitable to solve certain problems encountered in the development of EU property law. It could, for instance, be used to shape certain basic property law concepts in a European-autonomous way, such as a

or communication made by the Commission which touches on contract law, so as to ensure that this is considered by the Community legislature’.

118‘The ABC of European Union law’, a document produced by Klaus-Dieter Borchardt and published on the Eur-Lex website (<http://eur-lex.europa.eu/en/editorial/OA8107147C_00 2.pdf>) provides clarity in this matter. Under the heading ‘The EU Legal Instruments as the Secondary Source of Union Law’, p. 82, he writes the following:

‘Finally, there is a whole set of “other legal acts” which the Union institutions can use to issue non-binding measures and statements or which regulate the internal workings of the EU or its institutions, such as agreements or arrangements between the institutions or internal rules of procedure.’

119Karsten & Petri 2005, p. 38-39.

120Karsten & Petri 2005, p. 39.

121[2003] OJ C 321/1, point 2.

122Summary of responses to the 2003 Action Plan for a more coherent European contract law: <http://ec.europa.eu/consumers/cons_int/safe_shop/fair_bus_pract/cont_law/analyticald oc_en.pdf>, p. 10.

See also Hesselink 2009, p. 41; Hesselink, Rutgers & Booys 2007, p. 66 and footnote 128, and Karsten & Petri 2005, p. 38.

123Hesselink, Rutgers & Booys 2007, p. 68.

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