EU Private Law and the CISG

The Effects for National Law

Zvonimir Slakoper, Ivan Tot, Zvonimir Slakoper, Ivan Tot

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000431407
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

EU Private Law and the CISG examines selected EU directives in the field of private law and their effects on the national private law systems of several EU Member States and discusses certain specific concepts of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in light of the CISG's recent fortieth anniversary.

The most prominent influence of EU law on national private law systems is in the area of the law of obligations, thus the book focuses on several EU private law directives that cover the issues belonging to contract and tort law, as interpreted in the case law of the Court of Justice of the EU. EU private law concepts need to be interpreted autonomously and uniformly rather than through the lens of national private law systems. The same is true for the CISG which has not only been one of the most successful instruments of the international trade law unification but had also influenced both the EU private law and domestic laws. In Part I, focused on the EU private law and its effects for national laws, chapters examine the recent Digital Content and Services Directive and its likely impact on the contract law of the UK and Ireland, the role aggressive commercial practices play in EU banking and credit legislation, the applicability of the EU private international law rules to collective redress, the unfair contract terms regime of the Late Payment Directive and its transposition into Croatian law, the implementation of the Commercial Agency Directive in Denmark, Estonia and Germany, and disgorgement of profits as remedy provided in the Trade Secrets Directive. In Part II, dealing with selected CISG issues, chapters discuss the autonomous interpretation of CISG's concept of sale by auction and its notion of intellectual property, as well as the CISG's principle of freedom of form and the possibility for reservations with the effect of its exclusion.

The book will be of interest to legal scholars in the field of EU private law and international trade law, as well as to the students, practitioners, members of law reform bodies, and civil servants in Europe, and beyond.

1 EU private law and the CISG

An introduction

Zvonimir Slakoper and Ivan Tot

DOI: 10.4324/9781003080602-1

1. Introduction

The gradual emergence of EU private law is undoubtedly one of the most significant developments in the contemporary European legal landscape. Despite the EU not having a general competence to regulate private law, its continued reliance on elements of private law as an instrument for establishing the internal market has resulted with an increasingly growing body of EU law governing the private relationships of natural and legal persons. EU private law predominantly consists of EU secondary legislation, particularly of directives which require national transposition measures to achieve the objectives set out in them. Thus, EU private law is not a self-reliant legal system, as the effectiveness of the EU legislative acts largely depends on their implementation in the national private law systems of the now twenty-seven Member States. EU secondary legislation frequently employs private law concepts which to some extent correspond to the concepts found in the national law of the Member States. However, EU private law concepts are autonomous concepts of EU law which need to be interpreted uniformly and autonomously, without resorting to the concepts applied in the national private law systems. While the national legislators are required to ensure that EU directives are transposed in the national laws properly and in a timely manner, national courts are tasked with ensuring that EU private law is properly applied. The Court of Justice of the European Union (CJEU) plays a crucial role in the further development of the autonomous EU private law concepts, primarily through preliminary rulings of the Court of Justice (ECJ)¹ concerning the interpretation of EU secondary legislation. Thus, along with EU secondary legislation, ECJ case law interpreting EU secondary legislation is likewise an intrinsic part of EU private law. As this brief outline of the interactions between EU law and the national laws of the EU Member States shows, the relationship between EU private law and the national private law systems is a complex one. Hence, it is not surprising that a vast body of legal literature was published on the subject, especially in the last fifteen years,² and that EU private law quickly emerged as an independent legal discipline.

1 The Court of Justice of the European Union (CJEU) is a judicial institution consisting of two separate courts: the Court of Justice and the General Court. In this volume, when referring to the Court of Justice, also informally known as European Court of Justice, the abbreviation ECJ is used, while the abbreviation CJEU is used when referring to the Court of Justice of the EU as the judicial institution. 2 With reservation that this is by no means intended as a definitive and exhaustive list of works on the EU private law and its impact on the national private law systems, see eg the following important contributions to the field: Fabrizio Cafaggi (ed), The Institutional Framework of European Private Law (OUP 2006); Stefan Vogenauer and Stephen Weatherill (eds), The Harmonisation of European Contract Law: Implications for European Private Laws, Business and Legal Practice (Hart Publishing 2006); Arthur S Hartkamp and others (eds), Towards a European Civil Code (4th edn, Kluwer Law International 2010); Christian Twigg-­Flesner (ed), The Cambridge Companion to European Union Private Law (CUP 2010); Roger Brownsword and others (eds), The Foundations of European Private Law (Hart Publishing 2011); Reiner Schulze and Hans Schulte-Nölke (eds), European Private Law – Current Status and Perspectives (SELP 2011); Jürgen Basedow, Klaus J Hopt, and Reinhard Zimmermann (eds), Max Planck Encyclopedia of European Private Law (OUP 2012); Pia Letto-­Vanamo and Jan Smits (eds), Coherence and Fragmentation in European Private Law (SELP 2012); Lucinda Miller, The Emergence of EU Contract Law: Exploring Europeanization (OUP 2012); James Devenney and Mel Kenny (eds), The Transformation of European Private Law: Harmonisation, Consolidation, Codification or Chaos? (CUP 2013); Dorota Leczykiewicz and Stephen Weatherill (eds), The Involvement of EU Law in Private Law Relationships (Hart Publishing 2013); Leone Niglia (ed), Pluralism and European Private Law (Hart Publishing 2013); Norbert Reich, General Principles of EU Civil Law (Intersentia 2013); Christian Twigg-Flesner, The Europeanisation of Contract Law: Current Controversies in Law (2nd edn, Routledge 2013); Jacobien Rutgers and Pietro Sirena (eds), Rules and Principles in European Contract Law (Intersentia 2015); Arthur Hartkamp, European Law and National Private Law: Effect of EU Law and European Human Rights Law on Legal Relationships between Individuals (2nd edn, Intersentia 2016); Christian Twigg-Flesner (ed), Research Handbook on EU Consumer and Contract Law (Edward Elgar 2016); Stephen Weatherill, Contract Law of the Internal Market (Intersentia 2016); Geraint Howells, Christian Twigg-Flesner, and Thomas Wilhelmsson, Rethinking EU Consumer Law (Routledge 2017); Hans-Wolfgang Micklitz and Carla Sieburgh (eds), Primary EU Law and Private Law Concepts (Intersentia 2017); Reiner Schulze and Fryderyk Zoll (eds), European Contract Law (2nd edn, CH Beck – Hart – Nomos 2018).

Although EU private law is a wide field covering not only areas of contract and tort law but also matters belonging to property law, family law, the law of succession, and other branches of private law, the most prominent influence of EU law on national private law systems is in the area of the law of obligations. For this reason, the interaction of EU private law and the national law of obligations of the EU Member States was selected as one of the main topics of the Zagreb International Conference on the Law of Obligations,³ where contributors to this volume presented the early drafts of their chapters. To mark the fortieth anniversary of the United Nations Convention on Contracts for the International Sale of Goods (CISG),⁴ a special topic of the Zagreb Conference was also devoted to the autonomous application of the CISG and its influence on both EU private law and the national private law systems. Thus, this volume is also structured in two parts: Part I, containing six chapters focused on EU private law and its effects for the national private law systems, and Part II, consisting of three chapters that discuss certain concepts of the CISG and its fundamental principle of autonomous interpretation.

3 For more details about the Zagreb International Conference on the Law of Obligations, see the conference website: https://lawofobligations.net.efzg.hr (accessed 17 July 2020). 4 United Nations Convention on Contracts for the International Sale of Goods (Vienna, 11 April 1980) 1489 UNTS 3, entered into force on 1 January 1988. Among the most significant contributions to the rich literature on the CISG, see Cesare Massimo Bianca and Michael Joachim Bonell (eds) Commentary on the International Sales Law: The 1980 Vienna Sales Convention (Giuffré 1987); Bruno Zeller, CISG and the Unification of International Trade Law (Routledge-Cavendish 2006); John O Honnold and Harry M Flechtner, Uniform Law for International Sales under the 1980 United Nations Convention (4th edn, Kluwer Law International 2009); Peter Schlechtriem and Petra Butler, UN Law on International Sales: The UN Convention on the International Sale of Goods (Springer 2009); Ingeborg Schwenzer (ed), Schlechtriem & Schwenzer: Commentary on the UN Convention on the International Sale of Goods (CISG) (4th edn, OUP 2016); Stefan Kröll, Loukas Mistelis, and Maria del Pilar Perales Viscasillas (eds), UN Convention on Contracts for the International Sale of Goods (CISG): A Commentary (2nd edn, CH Beck – Hart – Nomos 2020).

2. EU private law and the national private law systems

While there are also notable instances of the influence of EU primary law on the relationships between private parties,⁵EU private law predominantly consists of EU secondary legislation as interpreted by the ECJ. Of the different binding legal acts belonging to the category of the EU secondary law, EU private law is mostly based on directives which require national transposition measures,⁶ and to a lesser extent on regulations which have a direct effect without needing to be transposed into national law.⁷ Whereas EU directives in the field of private law were initially based on a model of minimum harmonization, allowing the Member States to set stricter national standards above the necessary level required by the directives,⁸ the standard of harmonization in recent years, especially in the field of consumer law, moved to a model of maximum harmonization, which prohibits the Member States from maintaining or introducing in their national law provisions diverging from the standard adopted in the directives.⁹ Regarding the scope of the harmonization, EU directives are regularly aimed at piecemeal harmonization: they cover only certain aspects of the private law relationships and specific private law concepts, while the aspects unaffected by them remain exclusively governed by the national law of the Member States. Thus, EU directives appear like ‘an archipelago of small islands in the wide seas of national private law systems’.¹⁰

5 The most iconic example of a provision of the Treaty on the Functioning of the European Union [2012] OJ C326/47 (TFEU) that has a direct horizontal effect in private law relationships is probably Art 101(2) TFEU which declares nullity of any agreements between undertakings that have as their object or effect the prevention, restriction, or distortion of competition within the internal market. For an analysis of the effects of EU primary law in contract law, tort law, and the law of restitution, see eg Arthur S Hartkamp, ‘The Influence of Primary European Law on Private Law’ in Arthur S Hartkamp and others (eds), Towards a European Civil Code (4th edn, Kluwer Law International 2010) 127–48. See also Hans-Wolfgang Micklitz, ‘Überlegungen zu dem schwierigen Verhältnis von EU-­Privatrecht und nationalem Privatrecht’ (2016) 24 ERPL 579 (warning that the influence of EU primary law on private law is often neglected in the academic debate on EU private law); Micklitz and Sieburgh (n 2) (analyzing the main private law concepts in the context of EU primary law and ECJ case law). 6 See especially Peter-Christian Müller-Graff, ‘EU Directives as a Means of Private Law Unification’ in Arthur S Hartkamp and others (eds), Towards a European Civil Code (4th edn, Kluwer Law International 2010) 149–84; Angus Johnston and Hannes Unberath, ‘European Private Law by Directives’ in Christian Twigg-Fles...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Table of cases
• Table of legislation
• Preface
• Abbreviations
• Notes on contributors
• 1 EU private law and the CISG: An introduction
• Part I EU private law and the national private law systems
• Part II The forty years of the CISG
• Index