European Commercial Law
Week 1: Introduction European Commercial Law
- Notion of ECL 3
- Legal Significance of ECL 4
- Development of Commercial Law in Europe in a Nutshell 4
- Overview: ECL in Primary Law 4
- Overview: ECL in Secondary Law 8
- Consequences of the Present Regulatory Approach 9
Week 2: Product Liability Law
- Background of Product Liability 10
- Tortious Liability v. Contractual Liability 10
- Producer Liability 10
- Boston Scientific Medizintechnik 13
Week 3: Unfair Commercial Practices
- The Unfair Commercial Practices Directive 17
- The General Test (Art. 5(2)) 18
- Misleading and Agressive Practices (Arts. 5(4) and 6-9) 18
- Black List (Art. 5(5) and Annex I) 22
- Enforcement 24
- Cambridge Analytica 25
Week 4: E-Commerce
- Background of the Regulatory Framework 28
- eCommerce Directive 29
- L’Oréal v. eBay (C-324/09) 31
- Digital Content Directive 33
- Proposal for the Digital Services Act (DSA) 35
Week 5: Civil and Commercial Litigation
- Jurisdiction in Civil and Commercial Matters 37
- Recognition and enforcement of Judgments 40
- Other instruments of European Civil Procedure: The example of the European Account
Preservation Order 41
Week 6: United Nations Convention on Contracts for the International Sale of Goods I
- Introduction and CISG History 46
- CISG Applicability 46
- General Provisions of the CISG 49
Week 7: United Nations Convention on Contracts for the International Sale of Goods II
- Formation of Contracts 52
- Obligations of the Parties 53
- Remedies 55
,Week 8: Future Challenges for European Commercial Law
- Political challenges – further harmonization of ECL 59
- Technological challenges – the example of digitalization 60
- “Sociological” challenges – the example of COVID-19 62
2
,Week 1: Introduction European Commercial Law
Notion of ECL
The term ‘European private law’ does not have an established meaning.
When used in a narrow sense, it is taken to include the influence of the law of the European Union
on private law, but not the influence of the ECHR.
When used in a wider sense, it is understood to also include:
a. Rules adopted within the context of the EU and relating to matters of international
procedure and private international law. Such rules were originally adopted in the form of
treaties and subsequently transformed into Regulations.
b. Treaties in the field of private law concluded within a broader context than the ‘regional’
European context, where all or virtually all MS of are signatories to such a treaty. Most
important one: the Vienna Sales Convention/CISG.
c. Regulations that have not yet entered into force and of which it is not certain that they will
ever do so.
The foundation of this system of ‘soft law’ 1 was laid by the Principles of European Contract
Law: a text drafted by a group of legal scholars, containing general provisions on contract
law. The project shows that is is quite possible to harmonise the general part of contract law
if the task is approached from an academic perspective instead of a political one.
Two complications:
1. The Principles have been drawn up in a fairly rough outline. For the purposes of actual
codification many subjects would have to be supplemented and worked out in greater
detail.
2. The Principles consist almost exclusively of provisions that are non-mandatory law in the
national context.
Other projects:
- The revision of directives (in the field of consumer law), since they have gaps, lack conceptual
constistency and sometimes contain contradictory provisions.
- Drafting a:
Common frame of reference (CFR): intended as a means to improve the quality of
EU legislation and possibly also an inspiration for national legislators drafting
legislation in the field of the law of contracts and obligations.
Optional instrument: refers to a set of rules which parties can choose to be the law
applicable to their contract, in particular to cross-border contracts.
Principles of Private Law:
General principles shared by the legal systems of the MS used to play and still play an important role
in the expansion of EU law by the Court of Justice. Within the scope of private law this development
has taken place in the field of unlawful acts and to a lesser extent in the areas of reasonableness and
fairness, condictio indebiti (undue payment) and unjust enrichment.
1
Soft law: refers to quasi-legal instruments which do not have any legally binding forse, or whose binding forse
is somewhat weaker than the binding force of traditional law (“hard law”).
3
, Legal Significance of ECL
Very high significance.
Delors, Former President of European Commission:
50% of national law, and 80% of commercial law is influenced by EU law (e.g. Competition Law). EU
law triggers often national reforms of private/commercial law, e.g. in Germany: Modernisation of
the law of obligations (2002).
Development of Commercial Law in Europe in a Nutshell
From 11th century: reception of Roman Law (Continental Europe).
Ius commune: common law for continental Europe.
From 18th/19th century: fragmentation of private/commercial law due to rise of nation states.
Codification of private/commercial law as expression of national pride.
Developments in private/commercial law drifting further apart.
Effect of two world wars.
Foundation of European Economic Community (1957, later EU then): Hallstein (1st President of the
European Commission (1964): Private law unification is urgently needed, including commercial law.
Development of ECL since the mid-1980s (esp. Directives). Rapidly increasing number (and details) of
private/commercial law rules. Regnotion as a separate area of law.
Overview: ECL in Primary Law
EU law covers private/commercial law matters in:
- Primary law
- Secondary law
- ECJ jurisprudence
Primary Law:
Note: Primary law often has a public law nature, which means that primary law is directed at the MS
and the obligations and probitions that they need to comply with, while secondary law can also
entail obligations and rights for individuals (of course with the side note that directives put an
obligation on MS to implement the directive into national law).
- Treaty on the European Union (TEU)
- Treaty on the Functioning of the European Union (TFEU)
This only contains a small number of provisions that relate expressly to private law.
o Art. 101(2): provides that agreements that distort competition (101(1)), shall be
automatically void.
o Art. 340: concerns the liability of the Union.
4
Week 1: Introduction European Commercial Law
- Notion of ECL 3
- Legal Significance of ECL 4
- Development of Commercial Law in Europe in a Nutshell 4
- Overview: ECL in Primary Law 4
- Overview: ECL in Secondary Law 8
- Consequences of the Present Regulatory Approach 9
Week 2: Product Liability Law
- Background of Product Liability 10
- Tortious Liability v. Contractual Liability 10
- Producer Liability 10
- Boston Scientific Medizintechnik 13
Week 3: Unfair Commercial Practices
- The Unfair Commercial Practices Directive 17
- The General Test (Art. 5(2)) 18
- Misleading and Agressive Practices (Arts. 5(4) and 6-9) 18
- Black List (Art. 5(5) and Annex I) 22
- Enforcement 24
- Cambridge Analytica 25
Week 4: E-Commerce
- Background of the Regulatory Framework 28
- eCommerce Directive 29
- L’Oréal v. eBay (C-324/09) 31
- Digital Content Directive 33
- Proposal for the Digital Services Act (DSA) 35
Week 5: Civil and Commercial Litigation
- Jurisdiction in Civil and Commercial Matters 37
- Recognition and enforcement of Judgments 40
- Other instruments of European Civil Procedure: The example of the European Account
Preservation Order 41
Week 6: United Nations Convention on Contracts for the International Sale of Goods I
- Introduction and CISG History 46
- CISG Applicability 46
- General Provisions of the CISG 49
Week 7: United Nations Convention on Contracts for the International Sale of Goods II
- Formation of Contracts 52
- Obligations of the Parties 53
- Remedies 55
,Week 8: Future Challenges for European Commercial Law
- Political challenges – further harmonization of ECL 59
- Technological challenges – the example of digitalization 60
- “Sociological” challenges – the example of COVID-19 62
2
,Week 1: Introduction European Commercial Law
Notion of ECL
The term ‘European private law’ does not have an established meaning.
When used in a narrow sense, it is taken to include the influence of the law of the European Union
on private law, but not the influence of the ECHR.
When used in a wider sense, it is understood to also include:
a. Rules adopted within the context of the EU and relating to matters of international
procedure and private international law. Such rules were originally adopted in the form of
treaties and subsequently transformed into Regulations.
b. Treaties in the field of private law concluded within a broader context than the ‘regional’
European context, where all or virtually all MS of are signatories to such a treaty. Most
important one: the Vienna Sales Convention/CISG.
c. Regulations that have not yet entered into force and of which it is not certain that they will
ever do so.
The foundation of this system of ‘soft law’ 1 was laid by the Principles of European Contract
Law: a text drafted by a group of legal scholars, containing general provisions on contract
law. The project shows that is is quite possible to harmonise the general part of contract law
if the task is approached from an academic perspective instead of a political one.
Two complications:
1. The Principles have been drawn up in a fairly rough outline. For the purposes of actual
codification many subjects would have to be supplemented and worked out in greater
detail.
2. The Principles consist almost exclusively of provisions that are non-mandatory law in the
national context.
Other projects:
- The revision of directives (in the field of consumer law), since they have gaps, lack conceptual
constistency and sometimes contain contradictory provisions.
- Drafting a:
Common frame of reference (CFR): intended as a means to improve the quality of
EU legislation and possibly also an inspiration for national legislators drafting
legislation in the field of the law of contracts and obligations.
Optional instrument: refers to a set of rules which parties can choose to be the law
applicable to their contract, in particular to cross-border contracts.
Principles of Private Law:
General principles shared by the legal systems of the MS used to play and still play an important role
in the expansion of EU law by the Court of Justice. Within the scope of private law this development
has taken place in the field of unlawful acts and to a lesser extent in the areas of reasonableness and
fairness, condictio indebiti (undue payment) and unjust enrichment.
1
Soft law: refers to quasi-legal instruments which do not have any legally binding forse, or whose binding forse
is somewhat weaker than the binding force of traditional law (“hard law”).
3
, Legal Significance of ECL
Very high significance.
Delors, Former President of European Commission:
50% of national law, and 80% of commercial law is influenced by EU law (e.g. Competition Law). EU
law triggers often national reforms of private/commercial law, e.g. in Germany: Modernisation of
the law of obligations (2002).
Development of Commercial Law in Europe in a Nutshell
From 11th century: reception of Roman Law (Continental Europe).
Ius commune: common law for continental Europe.
From 18th/19th century: fragmentation of private/commercial law due to rise of nation states.
Codification of private/commercial law as expression of national pride.
Developments in private/commercial law drifting further apart.
Effect of two world wars.
Foundation of European Economic Community (1957, later EU then): Hallstein (1st President of the
European Commission (1964): Private law unification is urgently needed, including commercial law.
Development of ECL since the mid-1980s (esp. Directives). Rapidly increasing number (and details) of
private/commercial law rules. Regnotion as a separate area of law.
Overview: ECL in Primary Law
EU law covers private/commercial law matters in:
- Primary law
- Secondary law
- ECJ jurisprudence
Primary Law:
Note: Primary law often has a public law nature, which means that primary law is directed at the MS
and the obligations and probitions that they need to comply with, while secondary law can also
entail obligations and rights for individuals (of course with the side note that directives put an
obligation on MS to implement the directive into national law).
- Treaty on the European Union (TEU)
- Treaty on the Functioning of the European Union (TFEU)
This only contains a small number of provisions that relate expressly to private law.
o Art. 101(2): provides that agreements that distort competition (101(1)), shall be
automatically void.
o Art. 340: concerns the liability of the Union.
4
