In search of coherence and consistency in European contract law: a way forward

摘要

In 2001 the European Commission began a far reaching consultation to ascertain whether obstacles arise for the proper functioning of the internal market and for crossborder trade from the existing divergent and fragmentary state of European contract law at the EU and national levels. This question was answered in the affirmative. Action was needed to simplify the regulatory environment for cross-border trade; to provide businesses and consumers with a single, comprehensive, and directly applicable contractual framework for cross-border transactions in the internal market. This thesis offers a solution to the current obstacles to cross-border trade on the basis of the Commission’s principal proposals for future action; the review of the acquis communautaire, the creation of a Common Frame of Reference, and the adoption of optional instruments of European contract law. It undertakes a chronological and critical assessment of the proposals and progress to date, in order to determine the most appropriate way forward for European contract law. It seeks to do so against a wider debate which highlights the economic, socio-cultural and political issues and interests which bear on the suitability and desirability of the Commission’s proposals and which must be accommodated within the final response. It also draws on existing examples of trade regulation, in particular, harmonised instruments, which share the objective of facilitating cross-border trade, at the international level. Such examination assists the understanding of the regulatory approach that must be taken to European contract law, and more particularly determines the extent to which the objectives of action at the European level can be realised within the internal market. It is against this background, and at a time when the EU is looking to the internal market, and the facilitation of cross-border trade as a means for Europe to emerge from economic crisis, that this thesis presents necessary action for the immediate development of the European contract law project. It concludes that the adoption of optional instruments present the most appropriate way forward. This is not, however, an absolute solution. The review of the acquis and the resulting proposal for a Consumer Rights Directive has an integral part to play moving forward. In search of coherence and consistency in European contract law however the CFR, both as a legislative toolbox and basis for the optional instruments, must underpin the future regulatory response. It is clear that all three of the Commission’s proposals must figure in the way forward