Tuesday, 29 November 2011
Saturday, 26 November 2011
Consultation period started on 28 October 2011 and Commission would like to end it by 8 January 2012. As all patients and health professionals prescribing medicinal products or medical devices belong to target groups, everybody may take part (online questionnaire).
It all started with the Directive 2011/24 which requires that the Commission adopts the measures enabling a health professional to verify the authenticity of the prescription and whether the prescription was issued in another Member State by a member of a regulated health profession who is legally entitled to do so (in other words something like “standard format”). What is worth mentioning, prescriptions would include e.g. elements to enable contact between the prescribing party and the dispensing party in order to understand the treatment.
Stakeholder input will feed into the impact assessment as announced on the European Commission's impact assessment webpage
Friday, 25 November 2011
The key note speeches were given by Katharina Boele-Woelki (Utrecht), Jan Wouters (Leuven) and Martijn Hesselink (Amsterdam):
Boele-Woelki spoke about the different existing and possible future legal regimes concerning property relations between spouses in Europe. She addressed the European Commission's proposals in this field (on these proposals, see also an earlier post on this blog) and commented on the possible ways forward: bilateral agreements, harmonisation (for instance according to the suggestions of the Commission on European Family Law, which reduce the number of regimes to 2 as opposed to the currently existing 5), unification, or the introduction of an optional regime.
Wouters looked into the relations between private law, the EU and global governance. Taking the examples of food safety standards, forest certification (e.g. taking action against the illegal harvesting of timber) and credit default swaps, he argued that the EU legislature can sometimes use standards developed by private bodies to pursue a certain public policy or 'common good' (e.g. the protection of public health or forests in the first two examples), while at other times it will replace these kinds of rules with mandatory legislation in order to serve certain public policy goals (e.g. market integrity in the third example).
Hesselink reflected on the question of how many systems of private law there are in Europe. He focused on the normative dimension of this dilemma, starting from the value of a 'sense of belonging' to a system. At this point, he distinguished between five views: nationalism, Europeanism, cosmopolitanism, dualism (meaning 'normative agnosticism'), and pluralism. He then went on to consider which of these (not mutually exclusive) loyalties could be the right one, and whether it would be possible to determine a hierarchy of values on the basis of them. In his view, the most plausible model for the current state of European contract law would be one of 'Europeanism as post-nationalism and proto-cosmopolitanism' (the latter term being based on the work of Habermas, in particular his new book on Europe's Constitution). Still, other values (especially justice) in Hesselink's view may trump Europeanism and system thinking, which means for instance that (on a less abstract level) an optional Common European Sales Law (CESL) may be a welcome instrument, but should not be pursued at any price.
In the smaller workshops, a wide range of more specific questions related to the idea of a 'ius commune' were discussed. I attended the workshops on 'contract law' and 'constitutional processes'. The first one focused on the merits of the proposed CESL (including the historical background to some rules, the expected usefulness of the remedies in case of non-performance, rules on digital content, and the pros and cons of optional regimes in private law) and considered the likely (economic) effects of the recently adopted Consumer Rights Directive. The workshop on 'constitutional processes' presented some of the research done within the scope of the 'European national and constitutional law' research project (Eunacon) led by Monica Claes, e.g. regarding the foundation of the EU on an 'uncommon principle' of federalism, and the impact of judicial networks (such as international associations of courts) on the development of law and its consequences for the conceptualisation of the constitutional order. Furthermore, attention was paid to the need for and possibility of establishing a constitutional ius commune, taking into account both institutional and substantive aspects of the theme. As Leonard Besselink, who chaired the second part of the workshop, remarked, the fact that this difficult query could not be easily solved did not diminish the beauty one could find in the unanswered question (a proposito, the beauty of the system was one of the values that Martijn Hesselink would refer to in his speech as well). Therefore, what could be a more appropriate ending to this post than a link to the piece Besselink based his observation on? Here it is.
Friday, 18 November 2011
'The European Law Institute will help build a European legal culture. More consistency between Europe's different legal systems will help strengthen mutual trust and our citizens' confidence in the EU's legal system, strengthening confidence in the European rule of law, which is the cement binding the European Union together. It will make the European area of justice concrete and real so that people can exercise their rights and take advantage of the Single Market's opportunities. The Institute will also bring added value to research on how EU law is implemented across the Union. It will engage in projects that will have concrete results for the daily lives of European citizens and legal practitioners.'
As regards European legal culture, the Oxford conference that I referred to in last Friday's post is now being advertised on the website of the Institute of European and Comparative Law.
Thursday, 17 November 2011
The Court answers with an unequivocal 'yes'. It states at para. 55 of the judgment:
'in a situation such as that in the main proceedings, in which a consumer who is a party to a long-term mortgage loan contract, which includes the obligation to inform the other party to the contract of any change of address, renounces his domicile before proceedings against him for breach of his contractual obligations are brought, the courts of the Member State in which the consumer had his last known domicile have jurisdiction, pursuant to Article 16(2) of that regulation, to deal with proceedings in the case where they have been unable to determine, pursuant to Article 59 of that regulation, the defendant’s current domicile and also have no firm evidence allowing them to conclude that the defendant is in fact domiciled outside the European Union'.
Therefore, the allocation of jurisdiction to the courts of the Member State in which the consumer has his domicile - guaranteed by Article 16 in order to protect consumers from costly, far-away proceedings in the professional party's court of choice - is also valid in situations where we only know the consumer's last domicile. It is noteworthy, however, that in this case the persuasive arguments are not based on consumer protection. Rather, the CJEU refers to wider objectives of the Regulation which apply to the consumer and his counterparty alike:
- 'strengthening the legal protection of persons established in the European Union, by enabling the applicant to identify easily the court in which he may sue and the defendant reasonably to foresee before which court he may be sued' (at para. 44);
- avoiding a situation 'in which the fact that it is not possible to identify the current domicile of the defendant precludes determination of the court having jurisdiction, thereby depriving the applicant of his right to bring proceedings' (para. 45);
- and: 'the criterion of the consumer’s last known domicile ensures a fair balance between the rights of the applicant and those of the defendant precisely in a case such as that in the main proceedings, in which the defendant was under an obligation to inform the other party to the contract of any change of address occurring after the long-term mortgage loan contract had been signed' (para. 46).
'52. As regards the requirement relating to the need to avoid a disproportionate interference with the rights of the defence, it must be pointed out that this applies in particular for the interpretation of Article 26(2) of Regulation No 44/2001. That provision must be understood as meaning that a court having jurisdiction pursuant to that regulation may reasonably continue proceedings, in the case where it has not been established that the defendant has been enabled to receive the document instituting the proceedings, only if all necessary steps have been taken to ensure that the defendant can defend his interests. To that end, the court seised of the matter must be satisfied that all investigations required by the principles of diligence and good faith have been undertaken to trace the defendant.
53. It is true that, even if those conditions are satisfied, the possibility of taking further steps in the proceedings without the defendant’s knowledge by means, as in the case in the main proceedings, of notification of the action served on a guardian ad litem appointed by the court seised constitutes a restriction of the defendant’s rights of defence. That restriction is, however, justified in the light of an applicant’s right to effective protection, given that, in the absence of such proceedings, that right would be meaningless.'
The application and interpretation of the Charter in this context gives some insight into the role that fundamental rights play in the EU legal order. It is however not immediately obvious what the 'rights of defence' include, even after the Court's decision. One may for instance still argue about the outcome - the AG, after all, considered that the appointment of a guardian without the consumer's knowledge and consent is not enough to assume submission to the jurisdiction of the court under Article 24 of the Regulation. The Court seems to attach greater emphasis to the need for someone to be there and represent the consumer, even in the consumer's absence.
As indicated by the Commission, 'the studies will feed into the Commission’s ongoing work aimed to ensure a stepped up enforcement of the existing legislation also to purchases of digital content and to assess the need for further possible adaptation of EU consumer legislation to changing markets'. In this field, the recently adopted Consumer Rights Directive and the proposal for an optional Common European Sales Law are of importance.
Monday, 14 November 2011
Sunday, 13 November 2011
Friday, 11 November 2011
Recital (1) of the proposed Regulation states:
'(...) From the range of obstacles to cross-border trade including tax regulations, administrative requirements, difficulties in delivery, language and culture, traders consider the difficulty in finding out the provisions of a foreign contract law among the top barriers in business-to-consumer transactions and in business-to-business transactions. (...)' (emphasis added)
And the conclusions of the Communication accompanying the proposal say:
'It is also an innovative approach because, in line with the principle of proportionality, it preserves Member States’ legal traditions and cultures whilst giving the choice to businesses to use it.'
It shows that the current initiatives in the field of European contract law steer clear, as far as possible, from interference with the legal traditions and cultures of the Member States. This is confirmed by the fact that the proposed CESL does not include any provisions on topics that generally engage (culturally determined) values, in particular the morality of contracts. It differs in this respect from previous academic proposals for comprehensive sets of contract law rules, such as the PECL and DCFR.
Does this mean that the CESL should be considered not to touch upon any questions of legal culture? Interestingly, in a speech that Commissioner Viviane Reding gave in Leuven in June of this year (on which we posted earlier) she remarked that:
'In the long run, the optional instrument on European Contract Law needs to become embedded in a European legal culture where lawyers, judges and academics progressively develop a joint understanding of the principles of private law as they are common to the legal systems of our Member States and of the evolving acquis communautaire.'
But what then is meant by a 'European legal culture'? In this context, more food for thought can be found in a recent article by Jürgen Habermas on 'Europe's post-democratic era', in which he submits that:
'A Europe-wide civic solidarity cannot emerge if social inequalities between the member states become permanent structural features along the fault lines separating poor from rich nations. The union must guarantee what the constitution of the German Federal Republic calls the "uniformity of living standards". This "uniformity" refers only to a range of variation in social living conditions that is still acceptable from the perspective of distributive justice, not to the levelling of cultural differences.' (emphasis added)
To be continued...
And as a final note here: European legal culture will be the theme of a conference that is being organised in Oxford mid December (more information will follow on this blog), which promises an interesting discussion and - talking about culture & consumers - presents an excellent opportunity to go and see Leonardo in London.
Thursday, 10 November 2011
The text of Commissioner Reding's speech at the currently ongoing conference on the future of European Contract Law, organised by the Polish presidency, is now available on the website of the European Commission. Reding emphasises the potential role of the recently proposed Regulation on a Common European Sales Law:
'The optional Common European Sales Law will provide companies with an easy and cheap way to expand their business to new markets. It will bring more choice, security and a better deal to consumers. In the Commission's analysis, it's a win-win situation: for businesses and consumers who want to take advantage of our Single Market. Europe needs to develop and exploit such win-win situations. Because we have no time to lose in our fight for stability, growth and competitiveness of this marvellous continent. Some say in these days that Europe is in danger. I do not share this negative view. I believe Europe is full of opportunities and of potential that we just need to unlock with determination. And the optional Common Sales Law is one of these opportunities.'
Some first-hand news on the conference proceedings will probably follow next week when Joasia, who is attending the conference, will be back from Warsaw. Furthermore, Eric Clive promised to post on the conference on the Edinburgh European Private Law blog.
Wednesday, 9 November 2011
The proposed Consumer Programme aims at improving possibilities for consumers to actively take part in the internal market, in particular by:
- enhancing product safety through effective market surveillance;
- improving consumers' information, education and awareness of their rights;
- consolidating consumer rights and strengthening effective redress, especially through alternative dispute resolution;
- strengthening enforcement of rights cross-border.
In relation to these points, the Commission indicates that it intends to enhance consumer awareness of available rights under EU law, for instance through giving more publicity to the work of the ECC-net (network of European Consumer Centres).