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TENDENCY TO CONCEPTUALISE EUROPEAN CONSUMER LAW

100%

Stefanicki R.

nr 3

683-711

This article relates developments in consumer law where there is still a tendency to conceptualise consumer law as private law. The existing EU consumer protection rules are fragmented basically: firstly, the current directives allow Member States to adopt more stringent rules in their national laws and many of them have made a higher level of consumer protection and secondly, many issues are regulated inconsistently between directives or have been left open. The EU proposes, in a Green Book on possible changes in contractual law directives, a total harmonization of consumer legislation. The need for national courts to ask rather detailed questions may increase with the recent trend to total harmonisation of EC consumer law. The EU legislator believes that the future horizontal instrument should apply to all consumer contracts. That will prevent regulatory fragmentation at European level and help to streamline European legislation. The article examines the merit of the test of the average consumer as a basis for judicial and regulatory action. Contract law attempts in various ways to regulate the information that contracting parties exchange. Increasing the transparency information available to consumers is de lege lata undoubtedly beneficial. Current practices however, be reflected by author in concrete legislative and proposed legislation. The Commission intends to create a European Contract Law, that would in the not so near future replace the national contract laws.

THE PRINCIPLES OF EUROPEAN CONTRACT LAW (PECL)

100%

Stefanicki R.

nr 3(165)

109-125

The present state of contract law in the European Community is still characterized by the coexistence of national contract laws. The functioning of the internal market would attempt to achieve convergence in national contract law by promoting the development of common Principles of European Contract Law (PECL). They should reflect solutions common to all national legal orders in the European Union. Common contract law principles would serve as guidelines for Member States when new legislation is going to be drafted in a situation where the legislative measures at the European level were mainly related to consumer law. The principles clearly embrace freedom of contract as their main rule. Terms which have been individually negotiated take preference over those which are not. Remedies for non-performance may be excluded or restricted unless it would be contrary to good faith and fair dealing to invoke the exclusion or restriction. The principles include a fundamental terminology e.g. meaning of terms 'non-performance' or a 'material' matter (it is one which a reasonable person in the same situation as one party ought to have known would influence the other party in its decision whether to contract on the proposed terms or to contract at all). PECL are intended to be applied as general rules of contract law in Community. The principles will apply when the parties have agreed to incorporate them into their contract or that their contract is to be governed by them.