The communitarization of the private law of the Member States has been given a significant impetus by the transfer of EC competence regarding judicial cooperation in civil matters from the third to the first pillar of the European Union. That is to say, under a new title of the EC Treaty, a single judicial area will be established; in terms of private law, the fields of private international law is involved to a large extent, whereas the civil procedure of the Member States will be affected to a lesser extent. In particular, the Community is in the process of transforming a number of conventions into secondary EC law, the most important one is the conversion into a Regulation of the Brussels Jurisdiction and Judgement Convention. Although the measures (to be) adopted in this context are 'real' acts of Community law - being based on the EC Treaty rather than the Treaty of European Union, the 'normal' regime for references for preliminary rulings does not apply. A more restricted regime is applicable. Also, the unity of Community law has been fragmented in that the measures are not binding on Denmark (the UK and Ireland are also not bound by acts adopted under this new Title but have opted in insofar as civil law measures are concerned).

Harmonisation of substantive private law, unlike the conflicts of law and civil procedure, has not been affected significantly by the Treaty of Amsterdam. Private initiatives such as the Commission of European Contract Law (Lando Commission) are still the primary focus for proposals involving large scale harmonisation of private law, such as a systematic approximation of the whole of the law of obligations or even a European Civil Code.

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ISSN: 0928-9801
ID: 335681

The Principles of European Contract Law, along with other private initiatives such as the UNIDROIT Principles of International Commercial Contracts, pose new problems for legal theory. What is the status of such principles and how can they be used? Berger examines these issues from the perspective of "creeping codification" of transnational law - the idea that slowly and gradually by reference to such principles a uniform private law will emerge. The modern European situation re-enacts the debate between the Thibauts and the Savignys in 19^th century Germany: the debate between those who propose early codification and those who seek to develop a political harmony between the law and its subjects. "Creeping codification" reflects the viewpoint of the Savignys. Principles and restatements may be used by national and supranational law makers (legislators and courts), referred to by the parties to an agreement, and built into legal education. This is a process which is already beginning to occur. The existence of specific, written principles rather than open-ended "general principles" of transnational law greatly facilitates the possibility of recognition and use. Because of their private origins, one of the tasks for the promoters of such principles is to ensure that they are well marketed, so that they can obtain maximum use. The "soft law" nature of such rules nevertheless renders them sufficiently flexible that they can easily be modified to suit new conditions and thus better reflect their environment.

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ISSN: 0928-9801
ID: 335684

The private law enacted by the European Community is characterised by peacemeal legislation and in outright contrast with the comprehensive and systematic perception of private law prevailing both on the European continent and in the common law jurisdictions. Tensions get stronger, and a general shift of opinion indicates that the harmonisation efforts of the Community should try to encompass larger areas of the law. The article advocates a Community codification of the law of contracts including the ancillary matters in the law of obligations, while the law of real property, succession and domestic relations should remain within the primary competence of the Member States. The new structure could be created in the form of a regulation on the basis of the existing Community competences. The Member States would be entitled to duplicate the Community Contracts Regulation within the framework of their national laws such as to maintain the uniform structure of the national civil codes. A legislative procedure consisting of three phases is suggested to conduct to the eventual taking of effect of the Community Contracts Regulation after 20 or 30 years.

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ISSN: 0928-9801
ID: 335685

The first part of the paper explores the factors that make up an efficient mechanism for ensuring that industries internalise the costs of environmental damage. In particular, the author considers the insurability of environmental risk and the possibility of using highly individualised insurance policies to cover that risk and at the same time to provide incentives to invest in safe technology and practices. He concludes that the most appropriate way forward would be to use an institutional structure in which strict liability both for damages suffered by private parties, and for restoration of impaired natural resources is imposed. Liability should be non-retroactive, individual and proportionate - assisting the potential tortfeasor to perform a costs-benefits analysis. Regulation should work hand in hand with insurance. Regulators should set minimum safety standards as pre-requisites for the operation of certain types of industrial plant on the basis of the information provided by insurers as to the nature of insurable risks. Any plant authorised to operate should therefore be able to obtain insurance coverage. Such a system would provide for environmental liability which is limited to the extent necessary to make it insurable. The need would therefore remain for a tax based compensation fund to cover uninsured damage.

The second and third parts of the paper go on to examine how far national legal systems and EU law respectively measure up against the proposed model. Monti concludes that the suggested model would be in keeping with and useful to the further development of environmental policy in the EU.

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ISSN: 0928-9801
ID: 335687

When it comes to parallel proceedings in the European judicial area, Article 21 of the Brussels and the Lugano Conventions gives a strong incentive to the litigants to act promptly. By launching proceedings before the other party, one can block with a guillotine-like certainty all other proceedings between the same parties concerning the same dispute. Article 21 of the twin Conventions grants indeed priority to the court first seised in time. The present case shows that this 'crude but simple' rule - priority is given to one of the two courts seised not on account of its competence to deal with the particular litigation, or of its geographical proximity with the case - can give rise to a very sophisticated litigation strategy.

In 1993 proceedings were launched both in Switzerland and in England in a dispute concerning liability for the losses incurred by an English company which had been placed under administration. The administrator threatened to sue three companies - two domiciled in Switzerland and one in New York - which were owned by the principal shareholder and managing director of the English company. According to the administrator, the three companies had illegaly benefited from the transfer by the director of assets from the English company. He granted the three companies 14 days to react and submit a comprehensive repayment plan. Two days before the end of this term, the three companies seised the Swiss court of a claim for a declaration that they were not liable for the money claimed. The day after these proceedings were issued, the administrator referred the matter to the English court. There ensued a conflict between the two parties as to the date on which an action is pending for the purposes of Article 21 (II). Before answering this vexed question, the Swiss Supreme Court had to determine whether the English and the Swiss proceedings were identical (I). While remaining true to the European nature of the lis pendens rule, the Court managed to curb certain abuses Article 21 can lead to. This decision will certainly make Switzerland less attractive for forum shoppers.

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ISSN: 0928-9801
ID: 335689

The decision of the OGH was based on the following set of facts: the parties met through a common acquaintance. At the suggestion of the defendant they decided to go to a bar, along with some others. Since the claimant had already had some alcohol, and did not have a driving licence with him, the parties agreed that the defendant should drive to the bar in the claimant's car. It was not possible to establish whether there had been any further discussion about what should happen in the case of an accident, and in particular whether the question of liability in such a case had been raised. On the way to the bar, the defendant was responsible for causing an accident through bad driving, and the claimant's car was a write off.

The lower courts allowed the claim for compensation in principle. The defendant's appeal in revision was also unsuccessful. The OGH left open the question whether the parties had entered into a contract. In such a case the defendant was responsible for returning the borrowed item intact. If there was no contract, the same result would be reached through a tort claim based on negligent damage to property under §§ 1295 ff. ABGB, since the accident was the result of driver error and this error - because of the dangerous nature of the activity undertaken - indicated the existence of an objective lack of care sufficient to make the defendant's action unlawful, as well as a subjective fault element. The claim thus identified existed even when the owner of the property allowed the defendant at his suggestion to drive a car on a shared journey.

The following contributions examine the judgment from the standpoint of German and Greek law.

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ISSN: 0928-9801
ID: 335691

A Mareva injunction allows a claimant to freeze a defendant's assets pending litigation. The injunction regularly contains provisos for the defendant to be able to meet certain types of regular expenditure and meet legal costs. The defendant in United Mizrahi Bank was being sued for breach of trust: he was an employee of the bank who had allegedly arranged for customers to pay money to entities controlled by him. The bank obtained a Mareva injunction pending the hearing of its claim for the return of the moneys obtained through this breach of trust. The claim was proprietary in nature. The bank could "trace" its ownership of the funds into the hands of the defendant and his associates.

The defendant sought declarations from the English High Court that by using some of the frozen assets to fund his legal expenses in defending the action, he would not be in breach of the Mareva injunction, and that if the claim against him was upheld, the expenditure of money on legal services would not be regarded as a further breach of trust. In relation to the first point, Rattee J held that the Mareva injunction contained a specific proviso for legal expenses, and therefore the use of assets for this purpose could not be a breach of the injunction. In relation to the second point, Michael Burton QC was unable to provide reassurance. Although the defendant would not be in breach of the Mareva injunction by using the disputed assets to fund his defence, it was possible that the assets would be found to be the property of the bank. If they passed into new hands - in casu those of the defendant's solicitors - there was a risk that those solicitors might also be made subject to a claim for their return.

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ISSN: 0928-9801
ID: 335694

The decision of the BGH was based on the following set of facts: The claimant, a public authority, advertised for tenders for carpentry work on a building project. The defendant building firm submitted the lowest tender - in comparison with five others received. After the deadline for submission of tenders had passed, the building firm informed the claimant that an error had been made in the calculation of the tender price. The transport and assembly costs had been left out by mistake, and the firm asked the claimant to take the tender out of the competition and offer the contract to someone else. The claimant refused to do so, and gave the contract to the defendant without taking the error into consideration. When the defendant did not proceed with the work, it was eventually given to someone else. The claim asserted against the defendant was for the additional costs incurred in comparison with the defendant's tender.

The Landgericht dismissed the claim, and the claimant's appeal was also unsuccessful. The appeal in revision by the claimant led to the quashing of the appeal court's decision and a reference of the case back to the appeal court. According to the judgment of the BGH, an mistake in calculations was not of itself a sufficient reason for avoiding a contract, if the recipient of the erroneous information knew of it or had avoided obtaining that knowledge in bad faith. Nevertheless, the recipient of the erroneous information - on the basis of precontractual responsibility or abuse of rights - might be obliged to point out to the informer his mistake. In the tendering process, a public contractor was not usually under any obligation to check the tenders for mistakes in calculation or to make further investigations; but exceptionally such a duty might exist when the fact of a mistake in calculation and the unreasonable consequences thereof for the tenderer is obvious from the tender or from other circumstances known to the contractor.

The following contributions examine the judgment from the standpoint of Austrian, Portugese, Swedish and Greek law.

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ISSN: 0928-9801
ID: 335695

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ISSN: 0928-9801
ID: 335696

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ISSN: 0928-9801
ID: 335698

This introductory paper sets out the questions dealt with in the other papers on sales law in this special issue of the European Review of Private Law. The first question is how the Directive will be implemented: in a separate act, within existing sales law, or as a catalyst for law reform. Three substantive issues are then highlighted: how to define the consumer, the hierarchy of remedies, and guarantees. Finally, the effects of the Directive on the ongoing debate concerning the harmonization of private law in Europe are considered.

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ISSN: 0928-9801
ID: 359008

The author starts by describing the possible methods of implementing the Directive. In this context, fragmentation of the Law of Sales and its consequences are addressed. The Austrian situation is used as an example of the importance of this (formal) issue. After this general introduction to the problems inherent in the process of implementation the proposal for a new regime on Gewährleistung is discussed. Basically, three main points of interest can be discerned: the attempt to reform the general sales law — as opposed to creating a separate consumer sales law; the implementation of the right to redress; and the impact of the Directive on the regime of damages. With regard to the latter issue, it is interesting to note how legal viewpoints can differ within the European Union even though they have in common the Directive as point of departure. In addition, a brief overview of the other problems posed by the Directive aims to provide a coherent picture of the impact of the Directive on Austrian Law.

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ISSN: 0928-9801
ID: 359014

The EU Directive on certain aspects of the sale of consumer goods and associated guarantees is largely based on the UN Convention on contracts for the international sale of goods (hereafter: CISG). Especially in the context of non-conformity, the provisions seem very similar. A few differences can be mentioned, however. The CISG contains an obligation, for example, for the buyer to inspect the goods within as short a period as is practicable in the circumstances and to give notice to the seller of any lack of conformity within a reasonable period of time. The Directive, however, states that the Member States may introduce an obligation for the buyer to inform the seller of a non-conformity within a period of two months from the date on which the buyer detected such a lack of conformity, but there is no obligation for the Member States to do so. No obligation exists for the buyer to inspect the goods either. The provisions in the Directive give a very high level of protection to the buyer, whereas the CISG, and also the case law which is based on the CISG, seem to afford more protection to the seller.

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ISSN: 0928-9801
ID: 359015

The rules governing lack of conformity in consumer sales are to be found in the Danish Sale of Goods Act (The Act). The Act constitutes inter alia a legitimate definition of lack of conformity of goods in consumer conditions. Generally, guarantees are not within the formalities of Danish law. They have been regulated by ordinary contractual law; the Marketing Practices Act will implement the Directive in this regard. According to the interpretation of the Directive and The Act, present Danish law must be altered in a number of (minor) requests in order to conform with the Directive. In Denmark a working group will put forward proposals for amendments to The Act.

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ISSN: 0928-9801
ID: 359016

English law already lays down a number of minimum quality standards for goods by the Sale of Goods Act 1979 which substantially resemble those found in the Directive 1999/44/EC. The more interesting developments concern the remedies available to purchasers of non-conforming goods. In particular, the Directive requires new legal rights to free repair or replacement, and may well require a purchaser's established right to reject goods to be more enduring than is now the case. Nonetheless, the Directive may be a double-edged sword in this respect. If the Directive's remedial regime is adopted with all of its limitations, the overall result could be a reduction of the rights of consumer buyers. Implementing the Directive will not be an easy task. In the short-term, a shortage of parliamentary time is likely to lead to implementation by Regulation in parallel to existing national rules. In the long-term, however, satisfactory consolidation of national and European rules governing consumer sales, and possible implementation of the UN Convention on the International Sale of Goods, will raise the question whether the UK should finally enact wholly separate consumer and commercial sales laws.

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ISSN: 0928-9801
ID: 359017

The purpose of the article is to determine what influence the EC Directive of 25 May 1999 on consumer guarantees may have on French Law. The author makes a comparative study of the way a consumer may be protected from defects in a good he has bought. He then concludes, since the present level of protection in French Law is generally higher than is required by the Directive, the French legislator only has a limited duty to implement the Directive.

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ISSN: 0928-9801
ID: 359018

The sales directive will lead to the most important law reform in German contract law since the entering into force of the German Civil Code in 1900. This is true, first, for sales law and the law of limitation. Here, the most important problems were due to the fact that defects in quality and defects in the right confered were treated differently, that there was a multitude of grossly diverging limitation periods (from six months to thirty years) and that phenomena like the delivery of slightly different goods (aliud) or of a slightly diverging quantity (minus) were again treated differently. With respect to these differentiations, the directive will lead to an important simplification of German sales law. One major topic not treated by the directive will change as well: So far, in most cases sellers (and only sellers) could not be sued for damages in case of pure negligence but only of fraud. This is anachronistic and will change. One striking feature of new German sales law is that it applies to all sales with only very few specific rules for consumer sales. This is however due to the fact that also the (consumer) sales directive and the Vienna Convention on international (commercial) sales are very similar in most points. Apart from sales law, it is still likely that the reform of German contract law will extend, second, to two more fields: The general law of breach of contract will probably be reformed, the preparatory work by the so-called Schuldrechtskommission extended over two decades. And probably the different acts on consumer law will be integrated into the Civil Code. This relates mainly to door step selling, distance selling, consumer credits and also unfair contract terms, although the latter are not a problem only of consumer contracts under German law. German academia was taken in surprise by the pace of reform both on Community level and by the German legislature. It started to collaborate in the legislative process only lately and large parts of it still rather see the disadvantages of new models than the chances of law reform. This casts some doubts over the parts of the reform which are not imposed by the directive.

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ISSN: 0928-9801
ID: 359019

The Greek Civil Code has been drafted mostly as a result of the influence of the Pandectists school of legal thought. Its historical roots account for that trait. Therefore, the implementation of the Consumer Sales Directive poses similar challenges to the Greek legal system, as it does to other legal systems of the Germanic family. However, certain issues may be unique, such as the current legislation on commercial guarantees, the existing definition of the notion of consumer, the place which consumer law occupies in the legal system as a whole and the associated implications for the process of transposition of the Directive into the Greek legal system. Nevertheless, that which has not been very much discussed in the legal literature -and this contribution aspires to inform the international readership- is the overall attitude of the private law experts in Greece towards the revision of the Civil Code, on the one hand, and the harmonisation of European Private Law on the other.

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ISSN: 0928-9801
ID: 359020

The author looks at the Directive from the point of view of its impact on existing Irish Sale of Goods Law — notably the Sale of Goods & Supply off Services Act, 1980. The reach of the term 'dealing as consumer' as it is currently interpreted in Irhs law is examined and contrasted with the rights of the consumer as incorporated in the Directive. Whilst the Directive overall has a narrower canvass than does the 1980 Act (and the sale of Goods Act, 1893 which the 1980 Act amends) it incorporates both provisions which are complementary to existing Irish legislation and others which appear to duplicate existing Irish measures. In short, the Directive does not provide a tailor-made platform from which existing Irish law can be readily amended. Such would be too much to ask from a document reflecting disparate national inputs. It is the author's general conclusion that whilst the Directive has much to commend it, existing Irish consumer protection law covers a wider canvass and in greater depth.

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ISSN: 0928-9801
ID: 359021

In this article I criticize the choice of the Italian legislator concerning the implementation of the Consumer Sales Directive 99/44 by means of a separate statutory instrument (decreto legislativo). I try to explain that this is not a suitable choice on the grounds of two main arguments. Firstly, two different regimes on sales are going to co-exist, their application depending on the status of the parties. Secondly, this implementation merely permits deadlines to be met but does not allow a thorough reflection on the issue. I further advocate a conscious policy choice by our legislator in relation to the emergence of a (schizophrenic) European contract law.

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ISSN: 0928-9801
ID: 359023

The other contributions to this special issue have analyzed in detail the content and impact of the Consumer Sales Directive; this article will refrain from doing this one more time. First, the present state of Luxembourg Sales Law will be discussed. In the following, it will be compared to the requirements of the Directive in order to identify the issues, which require an intervention of the Luxembourg legislator in the transposition process. In this regard, it has to be noted that so far, the Luxembourg government has presented no proposal aimed at implementing the Directive into Luxembourg Law.

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ISSN: 0928-9801
ID: 359025

This paper first provides a succinct overview of Dutch Private Law. It then compares the scope of application of the directive and Dutch sales law. Basically, the Dutch law on conformity is in conformity with the directive. There are some discrepancies which need not be remedied. Other divergences, however, will have to be addressed by the legislature. An interesting feature of Dutch sales law is that it demonstrates that the transition of a 'vice caché' based model to the CISG-oriented non-conformity model may be a smooth process. Dutch law on remedies is not completely in conformity with the directive and will therefore have to be remedied. Dutch law does not have any provision on guarantees and in this regard will have to be amended. On the whole, the impact of the directive on the legislative process will be minor. Its major effect will be witnessed in the globalisation of legal discourse.

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ISSN: 0928-9801
ID: 359026

The European Consumer Sales Directive will not greatly alter existing Scots law as it relates to implied terms concerning the nature and quality of goods. It will, however, introduce into Scots law a new remedy entitling the consumer to repair or replacement of defective goods. In some respects existing Scots law gives greater protection to consumers, for instance in the availability of the right to terminate the contract for breach as a primary remedy, and it is to be hoped that such protection remains entrenched even although the Directive envisages termination for breach as a secondary remedy.

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ISSN: 0928-9801
ID: 359009

The following paper examines the effects of the EC Directive on the sale of consumer goods and associated guarantees on Spanish contract law. It focuses in particular on the regulation contained both in the Consumer Protection Act and the Retail Trade Act, and in the Civil Code as well. As a result, it is clear that that there are differences between the Spanish law and the EC Directive, mainly on the requirement of the conformity with the contract, as it does not exist in Spanish legislation. In order to implement the Directive, the question is to adopt a new Act or to modify the provisions of the Civil Code.

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ISSN: 0928-9801
ID: 359010

This article deals with the impact of the EC Directive on Consumer Sales on Swedish Law. The two major areas discussed are time-limits and guarantees. The Directive does not influence Swedish Law a great deal, since both the Directive and Swedish Sales Law have been strongly inspired by the CISG. Concerning some details the law will become clearer and more understandable to the consumer. On the other hand the Directive has unfortunately seemingly delayed reform in several fields, notable in the area of guarantees and also a proposal to prolong the time-limit for the consumer's legal rights due to a lack of conformity in the goods from two to five years was postponed indefinitely. The Swedish legislator will present a proposal with amendments to the Consumer Sales Law at the beginning of 2001, where these reforms now hopefully can be adopted.

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ISSN: 0928-9801
ID: 359011

The seller's liability for defects contained in the Swiss Law of Sales remains rather traditional — seen in the light of the Directive 99/44 it shows a number of shortcomings for the consumer. The existing regime is applicable to both commercial and consumer contracts of sale. Besides, it can be derogated from and is frequently replaced by General Conditions to the detriment of the consumer. In addition, the Swiss Civil Code does not know of a right to repair/replacement of the consumer. For those reasons it seems to be pressing to modernize the Swiss rules on consumer sales according to the European development in that field of the law.

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ISSN: 0928-9801
ID: 359012

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ISSN: 0928-9801
ID: 359013

The standard terms of the bank, where a man got a loan for the restoration of the matrimonial home (where he also had his architect's firm) he was the sole proprietor of, obliged the spouse to grant security for the loan. The architect's wife made no objections. At the time of the conclusion of the whole transaction, she was 32, mother of a young child, owed two already several times charged pieces of land and got only a low income as employee in the bureau of her husband. After several delays in payments on the loan, the bank terminated the loan and called upon the wife as guarantee as the man was not able to repay.

The editors of this journal made an interesting choice by taking the Vorlagebeschluss from the 29^th June 1999 as case to be annotated. This not only because of the - at least - strange end of the affair, but mostly because of the style and form of the decision itself. The decision provides, like a real textbook, a complete overview of the different opinions concerning the Sittenwidrigkeit of contracts of suretyship of the IX^th and the XI^th Civil Chambers of the Bundesgerichtshof.

After discussing the German Law, it will be investigated how (vulnerable) sureties can try to avoid liability under French, Belgian, Dutch, English and Scottish Law.

The present standpoint in France upon this matter stems from the so-called Macron-case of the Court de Cassation of the 17^th June 1997, which introduced the delictual libaility of banks that demanded "manifest disproportionate" sureties. Since then, French sureties are better protected than at the time when it was only possible to obtain annulment of the contract of suretyship for a defect of consent.

In Belgium sureties still have to take the hard way and proof a defect of consent in order to get relief of a null contract. It will be considered therefore if sureties cannot profit from the latest case law-evolution on the contractors' duties in the precontractual stage.

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ISSN: 0928-9801
ID: 359027

This case answers a preliminary question addressed to the ECJ concenring the application or non-application of Directive 85/577/EEC on the protection of purchasers in the case of contracts negotiated away from business premises when the purchase concerns rights in immovable property on a time-share basis. According to the ECJ, the fact that time-share contracts are included in the provisions of a specific Directive (94/47/EC) does not exclude that a contract, containing an element of time-sharing, may at the same time pertain to the range of application of Directive 85/577/EEC, where the premises for the application in this last case are satisfied. The author is annotating the case from an italian perspective and also discusses the validity of the compensation clause in the case of renunciation and some other questions relative to the right of renunciation.

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ISSN: 0928-9801
ID: 359029

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ISSN: 0928-9801
ID: 359030

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ISSN: 0928-9801
ID: 359031

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ISSN: 0928-9801
ID: 359032

We are witness today, within a context of an increasingly integrated European Union, to the making of a new common legal order which is that of the European Community but also, and intertwined therewith, that of the ECHR. For lawyers that entails the necessity to work towards a ius commune that must be based as much as possible on legal foundations which the cooperating States have in common. Because of the limited competences attributed by the EC Treaty to the Community legislature and the Community courts, it will not be possible to achieve that goal only by means of EC legislative instruments and related case law. For indeed, whereas those instruments and case law will lead to harmonisation of national rules (the bright side of harmonisation), as a result of the limited attribution of competences, that harmonisation will only occur in limited sectors and, therefore, cause new disparities to arise, within each national legal system, between rules affected by European harmonisation and rules in the same area of law which are not affected so (the dark side of harmonisation). In consequence, in order to bring about overall convergence in those sectors of societal life which are to benefit from harmonisation (which is for private law mainly in the areas of contract and tort law), it will be indispensable to uncover, by all means, commonalities in concepts, principles and solutions between the domestic legal systems of the Member States. Only then will it be possible to build the emerging ius commune on common ground, and not to be perceived as a Fremdkörper in the participating States. That is a task of 'strategic importance' which comparative law research in the broadest sense, and by all those involved, must fulfill now and in the future.

In the author's view comprehensive binding codification of relevant areas of the law can be achieved only, for reasons of legal basis, democratic legitimacy and acceptability, by way of a multilateral treaty. Obviously, such Treaty must be prepared by experts from all Member States but on the basis of guidelines as to underlying policy questions and value judgments which have been discussed in European and national parliamentary assemblies in consultation with representative professional and non-professional interest groups. It would then be adopted by the Member States in accordance with constitutional procedures and, once ratified by, e.g. half of the Member States, the codification contained therein, or attached thereto, would enter into force in the ratifying States. In order to maintain uniformity, the Treaty should provide in a preliminary ruling procedure with an existing or a newly established Community court. To avoid the codification work to be carried out, and once in force to prevent it from operating, in the abstract, there is an urgent need to combine the 'top-down' approach inherent in codification, with the 'bottom-up' approach inherent in Source and Casebooks in which materials from all legal systems involved in the codification enterprise are collected. Only by making such materials available, at an early stage, will it be possible to make lawyers of all vintage familiar with each others' legal system and with the legal heritage which they share, and with the underlying societal developments and internal 'moralities'.

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ISSN: 0928-9801
ID: 393231

The internal market and the fundamental freedoms aim at extending party autonomy across borders. The instrument of party autonomy is the contract. The basic concepts and the legal measures on which EC contract law is based are recent. However, from both a conceptual and an empirical point of view, EC contract law has become indispensable. That applies even in purely domestic cases. Contract law is the core area of private law, EC contract law influences already more than half of all contracts, also domestic, and two thirds of all cross border transactions of the member states are now with other member states. EC contract law can be defined as covering all EC rules concerning the formation, the content and the termination of contracts.

EC contract law emerging over the last decade focuses on a specific type of transaction, and also of a particular regulatory approach. It focuses on transactions which typically concern large volumes and that are not only domestic. It is mainly obstacles to these transactions which are overcome and it is primarily the risks of these transactions which are regulated. European contract law has to be conceived both as broader and as narrower than national contract law. Broader because it includes all rules pertaining to contracts, also public good regulation. Narrower because it includes only rules which take away obstacles. National rules only constitute obstacles when internationally enforced.

The key structural issue in European contract law is the division between on the one hand rules that are internationally enforced according to articles 5–7 of the Rome Convention on the law applicable to contractual obligations. On the other hand are the rules that the parties can choose according to article 3 of the Convention. Only rules internationally enforced are subject to scrutiny on the basis of the fundamental freedoms of EC law. Both areas are further developed in specific sections of this article: There is virtually no harmonization where parties can choose the law applicable. There is intense harmonization for rules that are internationally enforced. There are in fact only very few national rules which are not harmonized in this area. It is argued that the major aim of harmonization here is to remedy two forms of market failure: restrictions of competition and (certain) information asymmetries.

In the section concerning the policy decisions inherent to the structure it is argued that the instruments used are such that both over regulation and state failure tend to be avoided. The policy is not restricted to a laissez faire approach either. The framework and mechanisms adjust the intensity of regulation near to an optimal level. This framework deserves more truly international and interdisciplinary discussion than it has received so far.

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ISSN: 0928-9801
ID: 393250

This paper discusses the protection of private parties within the framework of administrative implementation of European Community law. It analyses the procedural guarantees of private parties and in particular the right to a fair hearing. In this context the relevant rules established by Article 6 of the European Convention on Human Rights are also considered.

The author tries to determine the legal basis of the right to a fair hearing and the conditions under which it has been applied by the EC institutions. A particular attention is drawn to the rules on competition and state aids where the development in the case law and the relevant legislative framework are discussed. Once the content and the applicability of the right to a fair hearing are defined, the author goes on to discuss the specific aspects of the right to a fair hearing, such as privilege against self-incrimination and reasonable length of proceedings.

Finally, the question is raised as to whether the fairness in the proceedings can be effectively enforced by the individuals before the European Community courts. In this regard a locus standi of the private parties before the European Community courts is examined in the area of competition and state aids.

Copyright © 2001 Kluwer Law International
All rights reserved

ISSN: 0928-9801
ID: 393251

For a number of decades now, services have been the motor on which modern economies run. In societies such as ours, new services and therefore new contracts emerge almost daily. However, at present neither at a national level nor at the level of the European Union, a coherent legal framework exists on the basis of which service contracts may be regarded. The lack of general rules on service contracts makes it hard to appreciate new forms of service contracts and to deal with them in a satisfactory way. The Law of Services has therefore become an inconsistent body of diverging and contract-specific rules. The author argues that there is need for a functional study of service relations and that the results of such a study may be used for the creation of a more uniform Law of Services.

Copyright © 2001 Kluwer Law International
All rights reserved

ISSN: 0928-9801
ID: 393252

If the most realistic way of Europeanising private law consists of the enforcement of Community directives, then one must admit that scholarly writings have not been realistic at all. For whether judges have enforced the directives should be the single most important matter to investigate, but it has remained outside the reach of scholarly contributions which ponder instead other issues of lesser historical importance. The purpose of this article is to break this scholarly silence. It shows that the attempt to Europeanise private law by means of the directives has been a failure, as the directives have been disregarded in the courtrooms of continental countries. In some decisions judges have taken into account the directives, yet refused to enforce them and decided the cases on the basis of pre-existing national law. In other decisions judges have not taken into account directives' rules that were of relevance and should have been applied. Judicial disregard becomes really intelligible if one considers a set of practices of legal actors in continental Europe. Here a working partnership between judges and professors characterises the organisation of private law, a partnership which did not take place with respect to the enforcement of the directives, with the consequence that judges did not revise national law in the light of the directives.

Copyright © 2001 Kluwer Law International
All rights reserved

ISSN: 0928-9801
ID: 393253

A l'instar de la doctrine française, confirmée entre-temps par une jurisprudence constante de la Cour de Cassation française, l'on peut également plaider en droit belge pour faire une distinction, dans le contexte de l'usufruit d'actions, entre d'une part les actions qui font partie d'un portefeuille de valeurs, et d'autre part les actions pour lesquelles ce n'est pas le cas.

Dans le cas d'un usufruit d'actions qui appartiennent à un portefeuille de valeurs, l'on peut affirmer que le portefeuille doit être considéré dans son ensemble — et non du point de vue de ses actions individuelles — comme l'objet de l'usufruit.

En s'appuyant sur ce principe, l'on peut défendre la thèse que l'usufruitier d'un portefeuille de valeurs a le droit de disposer des actions qui font partie du portefeuille, à condition que la contrepartie des actions soit utilisée pour acquérir d'autres valeurs. L'objet de l'usufruit, le portefeuille de valeurs, doit en effet rester en état.

En acceptant cette thèse, l'on en arrive à une extension sensible des compétences juridiques de l'usufruitier d'un portefeuille de valeurs, ce qui se situe d'ailleurs en droite ligne des points de vues qui ont été adoptés par une partie de la doctrine belge.

Copyright © 2001 Kluwer Law International
All rights reserved

ISSN: 0928-9801
ID: 393254

A l'instar de la doctrine française, confirmée entre-temps par une jurisprudence constante de la Cour de Cassation française, l'on peut également plaider en droit belge pour faire une distinction, dans le contexte de l'usufruit d'actions, entre d'une part les actions qui font partie d'un portefeuille de valeurs, et d'autre part les actions pour lesquelles ce n'est pas le cas.

Dans le cas d'un usufruit d'actions qui appartiennent à un portefeuille de valeurs, l'on peut affirmer que le portefeuille doit être considéré dans son ensemble — et non du point de vue de ses actions individuelles — comme l'objet de l'usufruit.

En s'appuyant sur ce principe, l'ont peut défendre la thèse que l'usufruitier d'un portefeuille de valeurs a le droit de disposer des actions qui font partie du portefeuille, à condition que la contrepartie des actions soit utilisée pour acquérir d'autres valeurs. L'objet de l'usufruit, le portefeuille de valeurs, doit en effet rester en état.

En acceptant cette thèse, l'on en arrive à une extension sensible des compétences juridiques de l'usufruitier d'un portefeuille de valeurs, ce qui se situe d'ailleurs en droite ligne des points de vues qui ont été adoptés par une partie de la doctrine belge.

Copyright © 2001 Kluwer Law International
All rights reserved

ISSN: 0928-9801
ID: 393255

The French High Court considers an investments' portfolio as a single good (universalité) in a case in which the widow (usufructuary) receives the legacy of the usufruct of all of her husband's goods. At the same time, and bearing in mind that securities are not consumable things by their first use, this decision authorizes the usufructuary to manage this portfolio transferring the securities, as far as they are replaced by others. The usufructuary has to act always within one limit: preserving the thing's substance, even when, like in our case, she has received the dispense of her duty of paying a guarantee to secure that she is going to act with due diligence (as allowed by article 601 Code civil). In Spanish law we find no judicial decisions in this sense, but it is possible to try to find a solution, applying whether the quasi-usufruct rules (article 482 Spanish civil Code), whether the article that rules the herd's usufruct (article 499), in which a group of animals is handled as a single good. The former benefits the bare owner and the latter, the usufructuary. In this attempt we may receive some help of the following institutions: The mortgage on a business house; the administration by the parents of their children's goods; and the possibility ruled in the catalonian law (no. 22, of 29th november 1991) about guarantees on movable things, that allows the pledge of a 'group of securities' (articles 11 and 12).

Copyright © 2001 Kluwer Law International
All rights reserved

ISSN: 0928-9801
ID: 393256

The decision of the German Federal Supreme Court was based on the following set of facts: the defendant sold the claimant several properties in 1993 for an overall price of 1.7 million DM. In § 12 of the notarised contract it stated:

'The vendor undertakes to repurchase the … property on the request of the purchaser up until 30.6.1996. The request must be made to the vendor in writing before 31.3.1996. The repurchase will then take place in accordance with the conditions of this contract for a sale price of 1.7 million DM.'

By an agreement of 6.2.1994 the defendant granted the claimant an interest-free loan of 300,000 DM with provision that in the case of a repurchase this sum would be set off against the purchase price to be demanded by the claimant. The remainder of the purchase price was to be settled via an extension of credit. In 1995 the claimant demanded that the property be repurchased by 31.1.1995. The defendant refused this, objecting that the condition of the object of the sale had deteriorated significantly during the time that it had been in the claimant's possession, through the fault of the latter.

The Landgericht rejected the claim, the Oberlandesgericht gave judgment for the claimant, with the proviso that the property be sold without any guarantee as to its size or condition, but that the vendor's rights arising from § 498 (2) BGB should remain unaffected.

The defendant's appeal to the Supreme Court led to this decision being quashed. In the opinion of the Supreme Court § 497(1) BGB was not applicable to the right of resale, since the parties had not included this right in their agreement as a right on the part of the purchaser to modify the terms of the contract, but rather as an obligation to repurchase on the part of the vendor. Furthermore, neither §498 (2) second sentence BGB nor § 498 (2) first sentence BGB were applicable by analogy to the resale of immovable property, because of the difference in the framework of the parties' interests. In so far as the parties had structured the right of resale as a personal obligation, the purchaser could only require the conclusion of a contract of repurchase if he at the same time made good the defects that had emerged in the interim period.

On the following pages, the authors examine the decision from the point of view of Belgian, Spanish and Greek law.

Copyright © 2001 Kluwer Law International
All rights reserved

ISSN: 0928-9801
ID: 393257

The decision of the German Federal Supreme Court was based on the following set of facts: the defendant sold the claimant several properties in 1993 for an overall price of 1.7 million DM. In § 12 of the notarised contract it stated:

'The vendor undertakes to repurchase the … property on the request of the purchaser up until 30.6.1996. The request must be made to the vendor in writing before 31.3.1996. The repurchase will then take place in accordance with the conditions of this contract for a sale price of 1.7 million DM.'

By an agreement of 6.2.1994 the defendant granted the claimant an interest-free loan of 300,000 DM with provision that in the case of a repurchase this sum would be set off against the purchase price to be demanded by the claimant. The remainder of the purchase price was to be settled via an extension of credit. In 1995 the claimant demanded that the property be repurchased by 31.1.1995. The defendant refused this, objecting that the condition of the object of the sale had deteriorated significantly during the time that it had been in the claimant's possession, through the fault of the latter.

The Landgericht rejected the claim, the Oberlandesgericht gave judgment for the claimant, with the proviso that the property be sold without any guarantee as to its size or condition, but that the vendor's rights arising from § 498 (2) BGB should remain unaffected.

The defendant's appeal to the Supreme Court led to this decision being quashed. In the opinion of the Supreme Court § 497(1) BGB was not applicable to the right of resale, since the parties had not included this right in their agreement as a right on the part of the purchaser to modify the terms of the contract, but rather as an obligation to repurchase on the part of the vendor. Furthermore, neither §498 (2) second sentence BGB nor § 498 (2) first sentence BGB were applicable by analogy to the resale of immovable property, because of the difference in the framework of the parties' interests. In so far as the parties had structured the right of resale as a personal obligation, the purchaser could only require the conclusion of a contract of repurchase if he at the same time made good the defects that had emerged in the interim period.

On the following pages, the authors examine the decision from the point of view of Belgian, Spanish and Greek law.

Copyright © 2001 Kluwer Law International
All rights reserved

ISSN: 0928-9801
ID: 393258

The decision of the German Federal Supreme Court was based on the following set of facts: the defendant sold the claimant several properties in 1993 for an overall price of 1.7 million DM. In § 12 of the notarised contract it stated:

'The vendor undertakes to repurchase the … property on the request of the purchaser up until 30.6.1996. The request must be made to the vendor in writing before 31.3.1996. The repurchase will then take place in accordance with the conditions of this contract for a sale price of 1.7 million DM.'

By an agreement of 6.2.1994 the defendant granted the claimant an interest-free loan of 300,000 DM with provision that in the case of a repurchase this sum would be set off against the purchase price to be demanded by the claimant. The remainder of the purchase price was to be settled via an extension of credit. In 1995 the claimant demanded that the property be repurchased by 31.1.1995. The defendant refused this, objecting that the condition of the object of the sale had deteriorated significantly during the time that it had been in the claimant's possession, through the fault of the latter.

The Landgericht rejected the claim, the Oberlandesgericht gave judgment for the claimant, with the proviso that the property be sold without any guarantee as to its size or condition, but that the vendor's rights arising from § 498 (2) BGB should remain unaffected.

The defendant's appeal to the Supreme Court led to this decision being quashed. In the opinion of the Supreme Court § 497(1) BGB was not applicable to the right of resale, since the parties had not included this right in their agreement as a right on the part of the purchaser to modify the terms of the contract, but rather as an obligation to repurchase on the part of the vendor. Furthermore, neither §498 (2) second sentence BGB nor § 498 (2) first sentence BGB were applicable by analogy to the resale of immovable property, because of the difference in the framework of the parties' interests. In so far as the parties had structured the right of resale as a personal obligation, the purchaser could only require the conclusion of a contract of repurchase if he at the same time made good the defects that had emerged in the interim period.

On the following pages, the authors examine the decision from the point of view of Belgian, Spanish and Greek law.

Copyright © 2001 Kluwer Law International
All rights reserved

ISSN: 0928-9801
ID: 393259

Copyright © 2001 Kluwer Law International
All rights reserved

ISSN: 0928-9801
ID: 393260

Copyright © 2001 Kluwer Law International
All rights reserved

ISSN: 0928-9801
ID: 393261