private law: glossary chapter 8: european law

acquis communautaire

• set of rights, legal obligations and policy objectives set out by the EU

• candidate countries must abide to acquis to join EU and for full integration must incorporate it into national laws => adapting and reforming them according to it

acquis commune

common core of general principles and rules shared among the national laws of European countries => legacy of belonging to same legal tradition stemming from Roman law

acquis principles

• ACQP

• compilation of model rules and principles belonging to the EU private law

• drafting performed by a group of European scholars = Acquis group

• objective = source for the drafting, transposition and interpretation of the European community law

American law institute

• ALI

• encourage clarification and simplification of US common law + adapt it to changing and arising social needs

• members elected among judges, lawyers and legal scholars

antitrust law

• field of law

• general protection for competition by preventing companies (individually or jointly) from impairing regular economic competition by means of restrictive practices, abuses of dominant position or concentrations capable of creating or strengthening a monopoly position

arbitration

• alternative method of dispute resolution => no recourse to judicial proceedings

• entrusting one or more third parties (arbitrators) with resolving a dispute by means of an award which is binding on the parties and capable of being enforced (even by force)

arbitration clause

• specific agreement contained within contract or in separate act

• parties settle that any dispute relating to interpretation or execution of the same contract shall be decided by arbitrators

arblade case

• ECJ judgement

• most favorable social legislation of a MS applies to protect all employees working in its territory

• additional social and administrative obligations imposed on undertakings by the legislation of the host MS are justified only if the workers temporarily employed in that MS enjoy equivalent protection in their home MS

  = administrative compliance rules—while important—must be proportional, justified, and non-duplicative under EU law.

audiolux case

• ECJ judgement

• existence of general principle of equal treatment of minority shareholders oupon transfer of control

  => dourt denied existence of princeple by which person purchasing control of a company should offer all other shareholders same opportunity to sell their shares inasmuch it cannot be inferred from specific provisions of derivative EU law beyond their scope of application

• imposing a duty to purchase all outstanding shares on the acquirer of corporate control would require specific legislative decision with the aim ow weighing all involved interests

brasserie du pêcheur and factortame III joined cases

• ECL judgement

• better deliniation content previous ECJ decision on francovich case

• obligation of MS to compensate victims constitutes a general remedy whether or not rule infringed could have direct effect or not

• infringement giving rise to compensation for damage may relate to both specific legal provision and principle, fundamental right or judgement of the ECJ

==> for the first time liability systems of member states and EU assimilated = conditions of the two remedies must not be different in the absence of a specific justification

Brussels I regulation

• EU regulation

• international jurisdiction and the recognition and enforcement of judgements in civil and commercial matters

brussels II bis regulation

• EU regulation

• jurisdiction and recognition and enforcement of judgements in matrimonial matters and matters of parental responsibility

• aim: ensuring equality for all children, covering all decisions on parental responsibility, measures for protection of the child, irrespectively of eventual links with matrimonial proceeding

business-to-business transactions

• B2B

• bilaterally commercial

• between businesses generally on the same footing

• ≠B2C and B2G

business-to-consumer transactions

• B2C

• unilaterally commercial

• business = provider of good or service; consumer = client

• contractual relationship characterized by structural asymmetry between the parties => legislative protection of weaker one

centros case

• ECJ judgement

• if company exercises freedom of establishment under EC treaty => MS cannot discriminate against said company which was established in accordance with law of another member state in which it has its registered office but does not perform any business

• state cannot diminish freedom of establishment to protect creditors or prevent fraud if there are alternative ways of doing this

charter of fundamental rights of the EU

• CFREU

• supranational legal text

• entry into force lisbon treaty = same legal value as the Treaties (art 6 TEU) => fully binding on European institutions and MS, virtually at the apex of the EU legal system

code européen des contrats

• set of model rules on contract law drafted by accademia dei giusprivatisti europei under guidance of Giuseppe gandolfi

• 2 different models:

  • italian civil code: synthesis of two most relevant European codifications (German and French)

  • draft contract code drawn up in UK by Harvey McGregor on behalf of english law commission

Common European Sales Law

• CESL

• proposal for regulation published 2011 and approved by large majority in EP

• aim: create second, additional system of contract law within the legal order of each MS intended to serve as alternative to national rules

• vigorously debated => withdrawn by commission

common frame of reference

• CFR

• set of principles and definitions of european private law to improva quality of acquis communautaire

  => ensure greater consistency within European contract law

jcommon market

• a trade area within which there is free movement of capital and services

• normally provides for common external tariffs on imorts from non-member states

• often identified with specific geographical area

• European Common Market = goal pursued by EEC from 1957 Rome treaty until 1992-1993 treaty of Maastricht

European Commission

• EU’s politically independent executive institution

• 1 commissioner from each EU county + Commission president who is empowered to establish who is responsible for which policy area

• tasks:

  • sole body empowered to proposed EU legislation

  • enforce ecisting legislation

  • implement decisions of the Ep and the Council of the EU

  • sets EU spending priorities together with Council and Parliament

  • formulates annual budgets for approval by Parliament and Council

  • supervises how money is spent under scrutiny of the court of auditors

  • ensures together with CJEU that EU law is properly applied in all MS

common core project

• commenced 1994 at Tento University by Ugo Mattei and Mauro Bussani

• collective scholarly enterprise

• aim: unearth what is already common to legal systems of EU MS

• case studies => draw main lines of a reliable map of the law of EUrope

• in long run: projuct contributes to building common European legal culture

company law

• branch of commercial law

• traverses corporate life and legal relationships intrafirm (between company and its members)

• regulates formation, management and dissolution of corporate structures formed by the union of a number of natural persons or legal entities (public or corporate entities)

• aim: achieving common goal with collaboration of all members and pooling of assets

competition between MS’ legal systems

opportunity for European citizens to choose to subject certain legal relationships to the rules of the law Which they consider most favourable

competition law

• branch of the law

• promotes market competitiveness and regulates anti-competitive agreements made by companies

• essential pillar of European integration

• enable businesses to compete on a level playing field in the EU single market

• ensures global competitiveness of EU businesses’ products and services

• best prossible protection for european consumers

consumer rights directive

• imposes extensive duties on contracting businesses to disclose information during pre-contractual negotiations and during execution of contract

• stringent regime for off-premises and distance contracts => right to withdrawal also granted to consumer

consumers

• natural persons

• acting outside their trade, business, craft or profession

  <=> in case of dual-purpose contracts (contact stipulated for purposes partly within and partly outside person’s trade), if trade purpose is so limited as to not be predominant in overall context of the contract => person also considered consumer

• weaker party in commercial relationship => european law ensures pervasive legislation to protect these subjects

  => historically directives have established concepts such as corporate liability for damage caused by defective products, misleading advertising, consumer protection of price indications, consumer guarantees and product safety

costa v enel case

• ECJ judgement 1964

• EU legislative act prevails over national law even if the second was enacted after the first

• relationship between two legal systems cannot be solved applying lex posterior derogat priori

the Council

• EU institution

• non permanent members: ministers of the governments of each EU country

• tasks

  • discuss, amend and adopt supranational legislation +coordinate policies

    => authorized to commit their respective governments to pursue the actions agreed upon

  • main decision-making body of the EU together with EP

    => negotiates and adopts EU laws together with parliament on proposals formulated by EC

  • coordinates the policies of EU countries

  • draws up EU’s foreign and security policy on the basis of guidelines from the European Council

  • signs agreements between EU and other countries or international organizations

  • issues final approval for the annual EU budget together with EP

directive

• one of the secondary sources of European Union law

• ≠ regulations (directly applicable in MS’ legal systems) => directives need to be ratified within given deadline

• bind MS with reference to the result they aim to achieve => MS can choose form and methods by which objective is actually achieved

draft common frame of reference

• DCFR

• subtitle = definitions and model rules of european private law

• large number of scholars => joint project of study group on european civil code and the acquis group

• model rules based on comparative research acquis communautaire and relevant internaitonal instruments

• 10 books which cover contract law, tort law, unjustified enrichment, acquisition and loss of ownership, proprietary security rights in movable assets and trusts

EU law

• legal system laid down by EU

• sources divided:

  1. primary = the treaties => normative basis for all EU actions

  2. secondary = regulations, directives and decisions => stems from principles and objectives laid down in treaties

European atomic energy community

• EURATOM

• international organization created by treaties of rome 1957

• legally distinguished from EU

• original purpose = coordinate research projects about nuclear energy, dissemination of technical information and regular supply of nuclear materials

• later = embraced numerous other areas such as radiation shielding,…

European Coal and Steel Community

• ECSC

• organization established by treaties of Paris 1951 on initiative of Robert Shuman inspired by Jean Monnet

• Belgium, Italy, France, Luxemburg, the Netherlands and West Germany

• first international organization driven by the goal of overcoming a rigid concept of nationalism

• general objectives art 2 = economic expansion, employment growth,…

• specific outcomes = more efficient combination of the production of coal and steel within Europe, prohibition of customs duties and elimination of quantitative restriction of coal and steel products

• expired 2002

European community

• established 1957

• 3 international organizations: ECSC, EURATOM and EEC

  => governed by identical set of institutions

• Belgium, Italy, France, Luxemburg, the Netherlands and West Germany

European convention on Human Rights

• ECHR

• international convention drafted by Council of Europe and signed in 1950 in Rome

• 47 council of Europe MS

• goal: protect human rights and political freedoms in Europe

• enforced by European Court of Human Rights

European Council

• collective body

• defines EU’s overall policy priorities and orientations

• no legislative powers => sets EU’s political agenda generally by adopting conclusions at its meetings identifying problematic issues and actions to be taken

• members:

  • Heads of State or government of 27 EU MS

  • president of European Council

  • President of the EP

  • foreign policy issues => also High Representative of the Union for Foreign Affairs and Security Policy

European Court of Justice

• jurisdictional entity of the European Union

• located in Luxemburd

• set up in 1952

• task = ensure compliance with the whole European Union law in the process of its interpretation and application

  => different kinds of actions

• one judge assisted by General-advocates per EU MS

European Economic Community

• EEC

• established by treaties of Rome 1957

• Belgium, Italy, France, Luxembourg, the Netherlands and West Germany

  ==> expanded to UK, Denmark and Republic of Ireland 1973, later Spain, Greece and Portugal

• main objective = achievement of economic union through process of integration supported by common market and creation of a customs union

  => preamble = preserving peace and liberty and laying the foundations of an ever closer union among the peoples of Europe

european economic constitution

• enshrined in founding treaties

  + historically marked by foundation of the overall EU law

• draws on German ordo-liberalism = protection of economic freedoms incorporated into a strong regulation of the market to prevent firms and any individuals from gaining private power over the others

European Union

• political and economic union between 27 countries that are subject to the obligations and privileges of the membership

• every MS part of the founding treaties of the Union + subject to binding laws within the common legislative and judicial institutions

• internal single market developed through standardized system of laws that apply to all MS in those matters and only those matters where members have agreed to act as one

• EU policies

  • ensure free movement of people, goods, services and capital within the internal market

  • enact legislation in justice and home affairs

  • maintain common policies on trade, agriculture, fisheries and regional development

• monetary union = into full force 2002, 19 EU MS

Europeanization of private law

legislative, jurisprudential and doctrinal process of progressively reducing divergences between the national laws of MS

faccini dori case

• ECJ judgement

• exclusion of non-executing directives as directly applicable to horizontal relationships <=> national laws must be interpreted in accordance with such directives

family law

• sector of private law which governs family relationships in their broadest sense

• dealing with issues relating to marriage, filiation, adoption and even kinship and affinity

• not only interest of the individual but of the whole family groups

• numerous public policy rules which can not be derogated from => limits on the principle of the autonomy of individuals

forum shopping

the opportunity granted to a party to elect the national jurisdiction which best suits her own interests also in terms of taxation

foster case

• ECJ judgement

• self-executing directives

  => direct application = state is not identified on the basis of the legal nature of the person acting but on the basis of the public nature of the functions or of the activity it performs

francovich case

• ECJ judgement

• obligation of each MS to compensate the victims caused by an infringement of EU law if some specific criteria are met

• has to be proposed to national courts whose ompetence is established by their own provisions of civil procedural law and who may directly order the state to compensate for damages

• case = Italy’s failure to implement EEC directive on the protection of employees in the even of insolvency of their employer

freedom of choice of law governing the contract

• parties of a contract are free to choose the law applicable to it

• expression of prominent principle of parties’ autonomy => recognized by both laws and codes of main countries of civil law and of common law

  <=> specific limitations (public policy, overriding mandatory provisions)

(fundamental) economic freedoms

• set of freedoms enshrined in TFEU

• goal = safeguarding and enhancing the free movgement of goods, persons, services and capital and payments

• seen as separate body of law teleologically designed to pursue the constitutional model

general part of EU contract law

• set of rules entailed in EU law => apply to a contract irrespective of its type

• address marketing techniques or commercial practices that may impair the informed and genuine consent of consumers to enter into a contract

general principles of civil law

• principles underpinning national or supranational legal system with regard to civil law

• national and European level

• ensure that specific disciplines governing several areas of civil law are uniform by filling gaps, helping to interpret legal text,… according to the needs of the circumstance

• part of the rules “common to the legal system of the MS”

harmonization (approximation) of laws

• process aimed at establishing a standardized set of law, regulations and practices accross the internal market

• => appliation of such instruments to business operating in more than one member state

• aim = prevent one business taking economic advantage of the divergent instruments operating in the MS

intellectual property

• IP

• field of law

• gives creators and inventors legal monopoly in the exploitation of their creations or inventions

  => are given legal instruments required to protect themselves from any use for profit by unauthorized parties

köbler case

• ECJ judgement

• specified principles francovich and brasserie de pêcheur

• apply to all public organs the acts which can trigger the liability of the state

  => including judiciary = only when domestic court has “manifestly” infringed the applicable law

kücükdeveci case

• ECJ judgement

• case of unfair treatment based on employee’s age => non-discrimination derived from CFREU

labor law

• employment law

• focused on aspects and problems related to the discipline of work, the employment relationship and all issues intertwined with it

• regulation of employer-employee relations, labor relations and social security

late payment directive

• shift towards culture of prompt payment = require debtors to pay interest and reasonable recovery costs to the creditor if not payed for goods or services on time

• 60 days for companies and 30 days for public authorities

legal pluralism

• coexistence and competition of different jurisdictions and legal systems within the same community

• historically = market beginning of western legal tradition + extraordinary driver of political and economic development for Europe

Leonesio case

• ECJ judgement

• EEC/EC/EY regulation has direct effect and is capable of creating individual rights which national courts must protect

level playing field

• hallmark of market regulation pursued by EU private law

• directed to lay down unique regulatory framework for trade of goods and services within the single market

• goal: foster fair competition among businesses and professionals of the MS

Lisbon treaty

• EC+EURATOM=EU

• 3 pillars EU abolished

• community method extended to all its competences

• procedure of co-decision => ordinary legislative procedure

• amendments maastricht treaty => TEU

• amendments rome treaty => TFEU

• treaty EURATOM amendedm

lissabon urteil and maastricht ruling

• german constitutional tribunal

• establishing compatibility of treaties with german constitution

maastricht treaty

• creation of the EU

• into force 1993

• some competences EEC extended to sectors of social and political importance ==> EC

• EU characterized by three-pillar structure

• EMU = economic and monetary union with currency euro

• created EU citizenship

• procedure of co-decision = EP effective power in law-making shared with Council upon initiative commission

market failures

• inefficient distribution of goods and services within the free market

• typically = individual incentives for rational behavior do not lead to rational outcomes for the group => market failure if individuals deciding to act in rational self-interest generate less than optimal or economically inefficient result

market of rules

opportunity granted to European citizens to freely choose among different rules offered by each MS thus generating competition between them

mangold case

• ECJ judgement

• principle of non-discrimination applies in labor law => unlawfulness of unequal treatment on the grounds of a workers age

marleasing case

• ECJ judgement

• broadend scope Von colson and kamann case principle

• all national legislative acts (adopted before or after directive) must be construed in accordance with the directive = regard to wording and ultimate purpose

marshall case

• ECJ judgement

• direct applicability of directive which requires MS to comply with unconditioned and sufficiently precise obligation

  => helpful solution to prevent defaulting states from violating the founding treaties as a basis for resolving the disputes with individuals

• rule applies only to the state (vertical relations) even if acting iure privatorum

maximum harmonization

• approximation of national laws of MS

• directives do not empower MS to exceed the level of consumer protection they provide

minimum harmonization

• approximation of national laws of MS

• directives set threshold which must be met by MS

  => MS entitled to exceed level of consumer protection provided by EU legislation

Montanza Claro case

• ECJ judgement

• unfair terms directive = on unfair terms in consumer contracts

• national court which is called upon to rule on an appeal against an arbitration award must find arbitration ageement void and set aside award if it onsiders that agreement contains unfair term

  => even if consumer only relied on that invalidity for the appeal of the award and not in the arbitration proceeding

multi-levelled system

• staple of European law

• both supranational level of legislature and judiciary (EU) and national (MS)

negative integration

• function pursued by EU private law

• erasing national barriers or obstacles which restrict and compress movement of goods, services and key elements for production and excercise of economic freedoms founding treaties

• EU private law ‘purges’ rules impeding trading within the EU from the national laws of MS

• ‘confrontational part’ of EU private law

overriding mandatory provisions

• provisions of each MS => safeguard public interests = political, social or economic organization

• EU private international law = apply to any situation falling within their scope irrespective of law otherwise applicable to the contract according to the Rome I regulation

Pammer and Hotel Alpenhof joint cases

• ECJ judgement

• is special consumer protection regulation applicable to contracts that have been concluded through online activities?

• concept of the crucial prerequisite of ‘directing activities’

  => trader whose activity is presented on its website or on that of an intermediary can be considered to be “directing its activity to the MS of the consumer’s domicile

  <=> important to ascertain whether trader was envisaging doing business with the consumer in question => non-exhaustive list of matters to be considered for such ascertainment

European parliament

• 1 of 7 institutions of the EU

• legislative power but not legislative initiative => together with commission and council

• 705 members elected every five years by EU citizens through universal suffrage

• headquarters in Brussels, Luxembourg and Strasbourg

positive integration

• function pursued by EU private law

• re-regulation of market and society

• EU private law creates legislative framework that unifies legal systems of the MS

• ‘constructive part’ of EU private law

preliminary ruling

• ECJ decision about interpretation of EU law

• response to request from court or tribunal operating in EU MS

• art 267 TFEU

• no scope for appeal + referring court obliged to implement the ruling

principle of proportionality

• one of general principles of the EU

• legal, political and administrative dimension

• art 5 TFEU = any action by the EU should not go beyond what is necessary to achieve the objectives of the treaties

• tightly connected to subsidiarity

principle of subsidiarity

• one of general principles of the EU

• legal, political and administrative dimension

• art 5 TFEU = decisions should be taken as closely as possible to the citizen while determining the most relevant level of intervention

• tightly connected to proportionality

principles of European contract law

• PECL

• set of model rules on contracts elaborated by group of European academics in working commission

• aim = building uniform framework of European contract law by detecting common core of the rules proper of the systems of the different MS

• instrument of soft law seen as part of Europeann lex mercatoria

• 2 parts

• strict procedure for drafting:

  1. presentation of single provisions by rapporteurs

  2. discussion in plenary meeting

  3. adoption of the provision by plenary with amendments where necessary

principles of european tort law

• PETL

• compilation of guidelines drafted by European Group of Tort Law

• aim = harmonizing european tort law

• principles serve as common framework of reference for development of tort law at both domestic and European level => to avoid further drifting apart of the legislation proper to the different national systems

• not meant to serve as model code = form, structure and aims typical of american model of the restatement of law

principles of international commercial contract

• PICC

• set of model rules on commercial contracts drawn up by UNIDROIT (institute for the unification of private law)

• ≠ PECL => UNIDROIT principles go beyond European dimension and aim at helping to harmonize commercial contract law at international level

• not binding => principles are instrument of soft law

• very successful in international contractual practice and often called upon by agreements concluded in international trade

• together with PECL also considered as part of lex mercatoria

prohibition of discrimination

• art 18 TFEU

• specified with regard to special policy areas through various provisions of the same treaty

• entitles Council to perform appropriate actions to contrast discrimination based on sec, racial or ethnic origin, religion or belief, disability, age or sexual orientation

protection of human (or fundamental) rights

• cardinal need underlying currend idea of the EU

• case law of ECJ => increased significance by establishing that fundamental rights are enshrined in general principles of communnity law protected by court

• rights inspired by constitutional traditions common to the MS and by international treaties to which MS are parties for the protection of human rights

public procurements

contract concluded by public authorities in order to guarantee provision of works and services

=> significant and prominent role in economies of MS

public policy

• bundle of principles and rules of a political entity

• explicitly state and safeguard the basic options adopted by that entity with regard to political, economic, social order

• variety of content in relation to different branches of law

• as value of social order also guarantee of peace and collective security

ratti case

• ECJ judgement

• non-implemented directive directly applied only when it requires MS to comply with an obligation that is unconditioned and sufficiently precise

recommendations and opinions

secondary sources of EU law => not legally binding on MS

regulation

• secondary source of EU law

• general application and legally binding for and directly applicable in MS

• can be enforced by individuals, notwithstanding the provisions of national law

restatements of the law

• in US

• legal treatise published by American Law Institute

• systematize common-law principles according to specific subjects

• compilations of case law

• not formally binding

• serve to inform case-law developed for a certain area

  => cannot substitute the law or repeal it

• secondary authority (≠ primary and binding authority of statutes and case-law)

  => reflect the consensus of the American legal community on what the law is ==> highly persuasive as courts often rely on them to solve their cases

Rome I regulation

• regulation on international private law

• governs choice of law for contractual obligations and applies within the MS of the EU when applicable law to an international contract is to be determined

rome II regulation

• regulation on international private law

• identification of the la applicable in the event of a conflict of laws regarding a non-contractual obligation in civil or commercial matters

rome III regulation

• regulation on international private law

• aim = establish a clear and comprehensive legal framework in matters of the law applicable to divorce and legal separation in the participating MS

  => giving citizens adequate solutions as regards legal certainty, predictability and flexibility

  + prevents situations where one spouse applies for divorce before the other in order to ensure that proceedings governed by law which he or she considers more favourable to his or her own interests

sales of goods directive

• EU directive

• applies to all goods, embracing products distinguished by digital element

• provides that seller is obliged to guarantee for a minimum period of 2 years that the goods delivered to the consumer conform with the contract between the parties

• burden of proof is reversed in favour of the consumer

simmenthal case

• ECJ judgemeent

• challenging opinion of Italian constitutional court

• need for general judiciary review => each national court when applying community legislation shall ensure its highest effectiveness

• each court should cease the application of national law which is contrary to community law without the need for a judgement of unconstitutionality issued by the constitutional court

single (or internal) market

• trade bloc embracing 27 MS

• fully-fledged freedom of movement of capital and persons as well as of goods and services

• adoption of legislative measures pursuing that aim based on qualified majority in Council (not unanimity)

• one of most important features European single market = absence of internal borders and regulatory prohibitions

social market economy

• socioeconomic model

• merging free market capitalist economic system with social policies which establish both fair competition within the market and a welfare state

• inspired by ordo-liberalism, social democratic reformism and the political ideology of Christian democracy

• often designed to represent an alternative to laissez-faire economic liberalism and socialist economics

society based on private law

• doctrinal conception by Franz Böhm

• german ordo-liberalism

• contributed to creation and expansion of the EU

• constitutional principle of individual freedoms protection incorporated into a strong regulation of economy

soft law

• range of quasi-legal instruments

• no actual legally binding force

• <=> hard law (= ordinary binding legal provisions)

• strong persuasive power => often used by judges both as a guideline and as an integrative criterion for the interpretation of ordinary legal provisions