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The Europeanisation of Contract Law

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Downloaded by [University of Defence] at 20:52 09 May 2016 The Europeanisation of Contract Law A process of Europeanising contract law has been driven by the legislative activity of the European Union (EU), which has adopted a string of Directives touching on various aspects of contract law, mainly consumer law. Many of these Directives have dealt with a fairly isolated aspect of contract law. Consequently, the European infl uence has hitherto been rather fragmented, and lacks overall coherence. This book traces the process of Europeanisation of contract law by critically examining the developments to date and their impact on English law, in particular, as well as the implications of the EU’s desire to move towards greater coherence. The arguments for and against greater convergence in the fi eld of contract law are also covered. This second edition has been fully updated to refl ect the most recent developments in EU contract law. It includes coverage of the Principles, Defi nitions and Model Rules of European Private Law (the Draft Common Frame of Reference), and the Consumer Rights Directive and its likely impact on consumer contracts as well as the proposed Common European Sales Law. Christian Twigg-Flesner LLB (Hons) PCHE PhD is Professor of Commercial Law and Head of the Law School at the University of Hull. He is also a member of the Acquis Group, working on the Principles of existing EC Private Law, and on the Consulting Board of the Society of European Contract Law (SECOLA). Downloaded by [University of Defence] at 20:52 09 May 2016 This page intentionally left blank Downloaded by [University of Defence] at 20:52 09 May 2016 The Europeanisation of Contract Law Current controversies in law Second Edition Christian Twigg-Flesner Downloaded by [University of Defence] at 20:52 09 May 2016 First published 2013 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2013 Christian Twigg-Flesner The right of Christian Twigg-Flesner to be identifi ed as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice : Product or corporate names may be trademarks or registered trademarks, and are used only for identifi cation and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been requested ISBN 978–0–415–57403–7 (hbk) ISBN 978–0–203–54937–7 (ebk) Typeset in Garamond by Refi neCatch Ltd, Bungay, Suffolk Downloaded by [University of Defence] at 20:52 09 May 2016 This book is dedicated to my parents, David and Antje Twigg-Flesner. Downloaded by [University of Defence] at 20:52 09 May 2016 This page intentionally left blank Downloaded by [University of Defence] at 20:52 09 May 2016 Contents Table of cases ix Table of legislation xiv Preface to the second edition xviii 1 The concept(s) of Europeanisation 1 Introduction 1 The context for Europeanisation 2 Europeanisation by the EU – themes and arguments to be explored 18 2 Framework of Europeanisation 23 Introduction 23 National contract rules and free movement 23 Europeanisation and competence 26 Europeanisation by Directives 37 Role of the CJEU 45 Conclusion 51 3 Europeanisation – the story so far 52 Introduction 52 Downloaded by [University of Defence] at 20:52 09 May 2016 Areas not covered 53 Overview – key Directives 55 Pre- contractual phase 67 Contract formation and validity 80 Substance of the contract 91 Performance 101 Remedies for non- performance 107 Beyond contract law – enforcement by injunction 114 Conclusion 115 viii Contents 4 Impact on national law 117 Introduction 117 Implementation into domestic law – general considerations 118 Post- implementation issues 122 Implementing EU law in the UK 126 Interpretation and application by national courts 131 Impact on contract law generally 145 Conclusion 150 5 Deeper Europeanisation – the common frame of reference 151 Introduction 151 Commission’s trilogy on European contract law 151 EU-wide standard contract terms 153 CFR 155 DCFR and beyond 170 Conclusion 174 6 Towards an optional instrument on EU contract law 176 Introduction 176 An optional instrument 176 Competence – the perennial problem 181 From an optional instrument to a CESL? 185 7 The future of Europeanisation 196 Introduction 196 Europeanisation – summary and evaluation 196 A European Contract Code? 199 An alternative? – the open method of co- ordination 207 Europeanisation – conclusions 207 Bibliography 210 Downloaded by [University of Defence] at 20:52 09 May 2016 Index 223 Table of cases European cases Case 28–30/62 Da Costa en Schake NV v Nederlandse Belastingsadministratie [1963] ECR 31 . .45 Case 8/74 Procureur de Roi v Dassonville [1974] ECR 837 . .23 Case 41/74 Van Duyn v Home Offi ce [1974] ECR 1337 . .124 Case 152/84 Marshall v Southampton & South West Hampshire Area Health Authority (Teaching) [1986] ECR 723 . 124 Case 33/76 Rewe [1976] ECR 1989 . 121 Case 120/78 Rewe v Bundesmonopolverwaltung für Branntwein (Cassis de Dijon) [1979] ECR 649 . 24 Case 283/81 CILFIT SrL v Ministerio della Sanita [1982] ECR 3415 . 45 Case 327/82 Ekro v Produktschap voor Vee en Vlees [1984] ECR 107 . .122 Case 16/83 Prantl [1984] ECR 1299 . 43 Case 29/84 Commission v Germany [1985] ECR 1661 . .39 Case 363/85 Commission v Italy [1987] ECR 1733 . .39 Case 60/86 Commission v UK (Dim-Dip Lights) [1988] ECR 3921 . .43 Case 382/87 Buet v Ministere Public [1989] ECR 1235. 57 C-59/89 Commission v Germany [1991] ECR I-2607 . 39 C-106/89 Marleasing SA v La Comercial Interacional de Alimentacion SA [1990] ECR I-4135 . .125 C-188/89 Foster v British Gas plc [1990] ECR I-3461 . .124 C-339/89 Alsthom Atlantique v Compagnie de construction mechanique Downloaded by [University of Defence] at 20:52 09 May 2016 Sulzer SA [1991] ECR I-107 . .24 C-6 and 9/90 Francovich v Italy [1991] ECR I-5357 . .41 C-267/91 Keck and Mithouard [1993] ECR I-6097 . 24 C-91/92 Faccini Dori v Recreb SRL [1994] ECR I-3325 . 125 Opinon 1/94 [1994] ECR I-5267 . 185 C-93/92 CMC Motorradcenter GmBH v Pelin Baskiciogullari [1993] ECR I-5009 . 25 C-334/92 Wagner Miret v Fondo de Garantira Salaria [1993] ECR I-6911 . .125 C-46 and 48/93 Brasserie du Pecheur SA v Germany / Factortame v UK [1996] ECR I-1029 . .41 x Table of cases C-392/93 R v HM Treasury ex parte British Telecommunications plc [1996] ECR I-1631 . .46, 121 C-178/94 Dillenkofer and others v Federal Republic of Germany [1996] ECR I-4845 . .47 C-192/94 El Corte Ingles SA v Rivero [1996] ECR I-1281 . 125 C-28/95 Leur Bloem v Inspecteur der Belastingdienst [1997] ECR I-4161 . .46 C-104/95 Georgios Kontogeorgas v Kartonpak AE [1996] ECR I-6643 . 105 C-261/95 Palmisani [1997] ECR I-4025 . .121 C-296/95 R v Commissioners of Customs and Excise ex parte EMU Tabac SARL [1998] ECR I-1605 . 123 C-300/95 Commission v UK [1997] ECR I-2649 . .39 C-45/96 Bayerische Hypotheken- und Wechselbank AG v Dietzinger [1998] ECR I-1199 . .58 C-319/96 Brinkman Tabakfabriken v Skatteministeriet [1998] ECR I-5255 . .121 C-140/97 Rechberger and Greindl v Republic of Austria [1999] ECR I-3499 . .42 C-215/97 Bellone v Yokohama SpA [1998] ECR I-2191 . .90 C-423/97 Travel Vac SL v Sanchis [1999] ECR I-2195 . 58 C-240–244/98 Oceano Grupo Editorial SA v Rocio Quintero and others [2000] ECR I-4941 . .97, 121 C-287/98 Luxembourg v Linster [2000] ECR I-6917 . .122 C-376/98 Germany v Parliament and Council [2000] ECR I-8419 . .31–2 C-381/98 Ingmar GB Ltd v Eaton Leonard Technologies Inc [2000] ECR I-9305 . .65 C-456/98 Centrosteel SrL v Adipol GmbH [2000] ECR I-6007 . 90 C-144/99 Commission v Netherlands [2001] ECR I-3541 . 40, 92 C-203/99 Veedfald v Arhus Amtskommune [2001] ECR I-3569 . .123 C-372/99 Commission v Italy [2002] ECR I-819 . 40 C-441/99 Riksskatterverket v Soghra Gharehveran [2001] ECR I-7686 . .124 C-478/99 Commission v Sweden [2002] ECR I-4147 . 94 C-481/99 Heininger v Bayerische Hypo- und Vereinsbank AG [2001] ECR I-9945 . .58 C-52/00 Commission v France [2002] ECR I-3827 . 43, 50,119 C-168/00 Simone Leitner v TUI Deutschland [2002] ECR I-2631 . .48, 107, 123, 160 Downloaded by [University of Defence] at 20:52 09 May 2016 C-183/00 Sanchez v Medicina Asturiana SA [2002] ECR I-3901 . .43 C-400/00 Club Tour, Viagens e Turismo SA v Alberto Carlos Goncalves Garrido [2002] ECR I-4051 . .63 C-473/00 Cofi dis SA v Jean-Louis Fredout [2002] ECR I-10875 . .121 C-206/01 Arsenal Football Club v Reid [2002] ECR I-10273 .
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