The Development of European Private Law in a Multilevel Legal Order

Transcription

1 The Development of European Private Law in a Multilevel Legal Order

2 Esther van Schagen The Development of European Private Law in a Multilevel Legal Order

3 Ius Commune Europaeum Intersentia Ltd Sheraton House Castle Park Cambridge CB3 0AX United Kingdom Tel.: Fax: Distribution for the UK and Ireland: NBN International Airport Business Centre, 10 Thornbury Road Plymouth, PL6 7 PP United Kingdom Tel.: Fax: orders@nbninternational.com Distribution for Europe and all other countries: Intersentia Publishing nv Groenstraat Mortsel Belgium Tel.: Fax: mail@intersentia.be Distribution for the USA and Canada: International Specialized Book Services 920 NE 58th Ave. Suite 300 Portland, OR USA Tel.: (toll free) Fax: info@isbs. com The Development of European Private Law in a Multilevel Legal Order Esther van Schagen 2016 The author has asserted the right under the Copyright, Designs and Patents Act 1988, to be identified as author of this work. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form, or by any means, without prior written permission from Intersentia, or as expressly permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries concerning reproduction which may not be covered by the above should be addressed to Intersentia at the address above. Cover image: Pitju Thinkstock ISBN D/2016/7849/8 NUR 822 British Library Cataloguing in Publication Data. A catalogue record for this book is available from the British Library.

4 CONTENTS Chapter 1. Introduction Introduction Multilevel governance Pluralism Multilevel governance and pluralist perspectives compared Detrimental coexistence: Multilevel governance, interdependence and methodological nationalism Beneficial coexistence: Pluralist perspectives The need for deliberation Limitations Outlook Methodology Chapter 2. Predictability, Consistency, Accessibility and Responsiveness Introduction Benchmarks for good law Benchmarks for European private law Legal certainty Predictability Accessibility Consistency Overlaps between predictability, consistency and accessibility Responsiveness Private law should be responsive to society s legal views on justice Private law should be responsive to practice Relations between responsiveness and legal certainty Justice, legitimacy, coherence, and legal equality Justice Legitimacy v

5 Coherence Legal equality Just, legitimate, coherent and equal European private law? Conclusion Chapter 3. Studying Interdependence in the Law on STCs Introduction Coexistence of actors developing the law on STCs Multilevel governance perspectives Pluralist perspectives Conclusion and outlook Chapter 4. The Development of the Law on Allgemeine Geschäftsbedingungen Introduction The law on Allgemeine Geschäftsbedingungen The development of the law on STCs through the BGB Codification or Sonderprivatrecht? A national choice for Sonderprivatrecht Comparative law and the continued existence of Sonderprivatrecht The Schuldrechtsreform and the choice for incorporation Conclusion on the choice for codification The existence of well-developed legislation and harmonisation The debate in the development of the Directive The implementation of the Directive The application of the Directive by the courts The discussion on the revision of Directive 93/ Conclusion on the development of German law on STCs and harmonisation German law on STCs and international trade Regulatory competition Regulatory competition: undesirable in the law on STCs Interaction with non-state actors The private initiative for regulatory competition Conclusion on regulatory competition The interpretation of international contracts Negotiating STCs The valid inclusion of STCs Adequately making STCs available vi

6 The interpretation of clauses in international contracts Conclusion on the interpretation of international contracts Conclusion on the development of German law and international trade Conclusion on the development of the law on STCs through the BGB Blanket clauses Competence to interpret blanket clauses The CJEU on the competence to interpret article 3 Directive 93/ The BGH and the interpretation of article 307 BGB Conclusion on the competence to interpret blanket clauses Model lists The development of the German and European model lists The implementation of the European model list The application of the European model list by the German courts The approach of the BGH towards the European model list The approach of lower courts: referring to the Directive Conclusion on the application of the European model list by German courts Conclusion on the development of the law on STCs through model lists The evaluation of clauses in international contracts The evaluation of international business contracts Preliminary questions: comprehensive international regimes? The evaluation of clauses under the Montréal Convention The evaluation of clauses under the CMR The evaluation of clauses under the CISG and German law Conclusion on the evaluation of clauses in international business contracts The evaluation of clauses in international consumer contracts The evaluation of clauses in domestic business contracts Conclusion on the evaluation of clauses in international contracts Conclusion on the development of the law on STCs through blanket clauses Principles The development of the German law on STCs The development of the European law on the basis of principles? vii

7 Principles underlying the development of the law on STCs: similarities Principles underlying the development of the law on STCs: divergences Conclusion on principles underlying the law on STCs Conclusion on the development of the law on STCs through national techniques The development of the law on STCs and insights from multilevel governance The development of the law on STCs and pluralist insights Facilitating deliberation? The use of additional or alternative techniques Techniques to support the legislative process The development of the DCFR The DCFR and the private law acquis The DCFR and national practice The DCFR and other soft laws Conclusion on the DCFR as an additional technique Techniques in addition to blanket clauses The use of self-regulation The use of lower regulation Conclusion on the use of techniques in addition to blanket clauses Studying the use of STCs Optional regimes Collectively negotiating STCs for cross-border trade Conclusion on the use of additional and alternative techniques Conclusion Chapter 5. The Development of the Law on Algemene Voorwaarden Introduction The law on algemene voorwaarden The development of the law on STCs through the BW The choice for codification Replacing self-regulation through the BW The development of Dutch law and harmonisation The drafting of Directive 93/ The implementation of Directives affecting the law on STCs The application of Directives by the courts The attempted reform of Directive 93/ The revision of the law on STCs at a national level Conclusion on the development of Dutch law and harmonisation viii

8 Dutch law on STCs and international trade Regulatory competition The interpretation of international contracts The valid inclusion of STCs Making STCs adequately available The interpretation of clauses Conclusion on the interpretation of international contracts Conclusion on the development of Dutch law and international trade Conclusion on the development of the law on STCs through the BW Blanket clauses The development of the law through article 6:233 sub a BW The drafting of article 6:233 sub a BW Interaction between the judiciary in the interpretation of article 6:233 sub a BW Conclusion on the development of the law through article 6:233 sub a BW Model lists The drafting of model lists The interpretation of articles 6:236 and 237 BW Conclusion on model lists The evaluation of clauses in international and domestic business contracts Applicable regimes The evaluation of clauses under the Montréal Convention The evaluation of clauses under the CMR The evaluation of clauses in international contracts under Dutch law The evaluation of domestic black and grey clauses under Dutch law Conclusion on the evaluation of clauses in international contracts Conclusion on blanket clauses Principles The development of the Dutch law on STCs on the basis of principles Principles underlying the law on STCs: similarities Principles underlying the law on STCs: divergences Conclusion on principles underlying the law on STCs Conclusion on the development of the law on STCs through national techniques The development of the law on STCs and multilevel governance insights The development of the law on STCs and pluralist insights Facilitating deliberation? ix

9 5.7. Additional and alternative techniques Techniques supporting the European legislative process The development of the DCFR Divergences between the DCFR, the acquis, and other soft laws The DCFR and national practice Conclusion on the use of the DCFR as an additional technique Techniques in addition to blanket clauses Comitology Guidance The prejudicial procedure Alternative regulation Conclusion on the use of techniques in addition to blanket clauses The development of collective negotiations Conclusion on the use of additional and alternative techniques Conclusion Chapter 6. Multilevel Governance and Pluralist Perspectives on the Development of the Law on STCs and European Private Law Introduction Multilevel governance perspectives Pluralist perspectives Responding to divergent preferences and the development of a system of checks and balances Regulatory competition Opportunities for learning Pluralist criticism of the state-centric approach Conclusion on pluralist perspectives Conclusion and outlook Chapter 7. Actors Developing Private Law in the German Legal Order Introduction Central questions on the role of state actors and non-state actors The distinction between law and juridical acts as a basis for binding rules Problems of Fremdbestimmung German alternative regulation and constitutional rights The role of actors under European law The European view: alternative regulation and fundamental rights?. 334 x

10 Comparison Conclusion on central questions State actors The national legislator and the judiciary The development of private law beyond the national level European actors developing private law in the German legal order The competence of European actors under the TFEU The competence of European actors under German constitutional law The role of actors under the TFEU and the GG and interdependence The role of international actors Conclusion on state actors State actors and non-state actors: co-regulation Referral Instances of referral to privately drafted rules The role of non-state actors in instances of dynamic referral The development of control mechanisms Comparison Collective agreements Tarifverträge (TVs), Betriebsvereinbarungen (BVs) and framework agreements The role of non-state actors The development of control mechanisms Comparison Conclusion on state actors and non-state actors Non-state actors Contractual self-regulation The role of individual contract parties Collective contracts The use of collective contracts The role of non-state actors Limitations to the role of non-state actors Conclusion on collective contracts Model contracts Standard contract terms ( Standard Terms and Conditions STCs) Conclusion on contractual self-regulation Self-regulation through articles of association Internally binding codes of conduct Sports associations Internally binding codes for professionals The Pressekodex xi

11 The Werbekodex The role of non-state actors Limitations to non-state actors roles Comparison Conclusion on self-regulation on the basis of articles of association One-sided juridical acts Encouraging codes to complement hard law: corporate social responsibility Lack of interference because of self-regulation: the BVI- Verhaltensregeln Border cases: binding one-sided declarations? General declarations: consumer services The roles of non-state actors Limitations to non-state actors roles Comparison Conclusion on one-sided self-regulation Conclusion on non-state actors Conclusion Differences between the roles of actors under German and European law Coexisting claims to authority The development of private law and state-centric perspectives The development of private law in the light of radical pluralist arguments Mutual recognition and respect? Chapter 8. Actors Developing Private Law in the Dutch Legal Order Introduction Central questions on the role of state actors and non-state actors The German constitutional framework as a starting point? The distinction between legal norms and juridical acts Alternative regulation as a hybrid between law and contract? Towards a framework for the role of actors developing private law in the Dutch legal order State actors The legislator and the Hoge Raad The development of private law beyond the state European actors The role of European actors under the TFEU The role of European actors under Dutch constitutional law The role of European actors under the Gw and the TFEU xii

12 The role of international actors in the development of private law Conclusion on the development of private law beyond the state Conclusion on state actors State actors and non-state actors: co-regulation Referral to private actors and new governance Instances of referral The role of non-state actors Limitations on the role of non-state actors A plea for a framework on the basis of private autonomy and Fremdbestimmung Codes of conduct: the corporate governance code and the banking code Reinforced codes of conduct The role of non-state actors Limitations on the role of non-state actors Collective bargaining Instances of collective bargaining The role of non-state actors: exercising fundamental rights? Limitations on the role of non-state actors? A plea for a future framework on the basis of principles of private autonomy and Fremdbestimmung Conclusion on state actors and non-state actors Non-state actors Contractual self-regulation The role of contract parties Collective contracts Model contracts STCs Conclusion on contractual self-regulation Self-regulation on the basis of articles of association: tuchtrecht Internally binding codes on the basis of articles of association Sports associations The encouragement of self-regulation in a national and European context Encouraging self-regulation Codes as conditions for membership: consumer sales Codes as conditions for membership in the absence of mandatory law The role of non-state actors Limitations on the role of non-state actors Conclusion on tuchtrecht xiii

13 One-sided declarations Binding declarations: consumer sales Binding declarations: contracts for the supply of energy Suggesting reinforced self-regulation: social corporate responsibility Codes of conduct on the basis of recommendations Primary payment services: binding declarations? The role of non-state actors Limitations on the role of non-state actors? Conclusion on one-sided declarations Reconsidering the distinction between tuchtrecht and one-sided declarations in Dutch law Conclusion on non-state actors Conclusion The role of actors under Dutch law, the TFEU and the GG Coexisting claims to authority The development of private law and state-centric perspectives The development of private law in the light of radical pluralist arguments Starting points for mutual recognition Chapter 9. The Use of National Techniques in the Development of European Private Law Introduction The use of codifications in a multilevel legal order The implementation of the acquis within codifications The use of codifications in areas of private law with a cross-border aspect Conclusion on the use of codifications The use of soft laws Soft laws modelled on national codifications Overlapping sets of soft law Soft laws and the private law acquis Conclusion on the use of soft laws The use of blanket clauses in a multilevel legal order Reasons for the use of blanket clauses in the acquis Interaction between courts in the interpretation of blanket clauses Conclusion on the use of blanket clauses The use of general principles Interaction on the basis of general principles? Weaknesses arising from the use of general principles? The discovery of general principles and predictability The discovery and the use of general principles: problems of accessibility xiv

14 Conclusion on the weaknesses arising from the use of general principles Conclusion on the use of principles Conclusion Chapter 10. The Use of Additional and Alternative Techniques Introduction Additional techniques supporting the legislative process Consultations The current use of consultations Shortcomings in the use of consultations Improving the use of consultations Conclusion on the use of consultations Impact assessments Shortcomings in the use of impact assessments Improving the use of impact assessments Conclusion on the use of impact assessments Networks The current use of networks Current shortcomings in the use of networks Improvements in the use of networks Conclusion on the use of networks Databases The current use of databases Shortcomings in the use of databases Improving the use of databases Conclusion on the use of databases Conclusion on the techniques used to strengthen the legislative process Additional techniques beyond the legislative process: blanket clauses Guidance on the interpretation of blanket clauses Suggestions for comitology procedures The use of alternative regulation in the interpretation of blanket clauses The introduction of the prejudicial procedure in Dutch law Conclusion on the use of techniques in addition to blanket clauses Additional techniques beyond the legislative process: Standard Terms and Conditions (STCs) The current use of STCs Improving the predictability and responsiveness of private law Conclusion on the use of STCs Additional techniques beyond the legislative process: The Open Method of Coordination (OMC) xv

15 A closer look at the OMC Improving the responsiveness of European private law? Drawbacks Conclusion on the use of the OMC Implementation problems and strategies: Regulations instead of Directives Optional regimes A closer look at optional regimes How can optional regimes contribute to more comprehensible European private law? Drawbacks Conclusion on the use of optional regimes American inspiration The use of Restatements in the European legal order Experiences with the DCFR and the Restatements The use of model laws Conclusion on American inspiration Collective bargaining Suggestions for collective bargaining The need for inclusive and representative negotiations between equal parties Conclusion on the use of collective bargaining Conclusion Chapter 11. Conclusions Introduction Multilevel governance and pluralist insights The state-centric approach to the development of European private law A principled approach: the German framework An instrumental approach: the European view The middle road: the Dutch approach A coherent approach? Multilevel governance insights: restraint in deliberation Benefits arising from the coexistence of actors in the multilevel legal order Checks and balances for European private law The coexistence of national actors Regulatory competition Mutual learning Further opportunities for mutual learning Problematic or beneficial coexistence? Bibliography xvi