or if you prefer to complete a hard-copy version, simply print
off the survey, complete it and mail it back to us for the
attention of Marianne Walsh at CMS Cameron McKenna, Mitre House,
160 Aldersgate Street, London EC1A 4DD.
All responses should be returned by Friday, 5th
October 2001. Should you have any queries regarding this survey or
any of the issues it covers please contact Marianne Walsh on +44
(0) 20 7367 2654.
Thank you in advance for your participation. All
respondents to the survey will be sent a summary report of the
A. The Commission's concerns about contract law
in the EU
Up until now, the European Commission has sought to
approximate contract law in the EU on a "piecemeal" basis. Thus, EU
legislation has been adopted in relation to certain specific areas
of contract law and has related to specific contracts or specific
marketing techniques. However, the Commission feels concerned that
this "piecemeal" approach to harmonisation might not be able to
solve all problems which can arise. The Commission is interested in
gathering information on the need for further-reaching EC action in
the field of contract law.
The exchange of goods and services is governed by a
contract. Problems in relation to agreeing, interpreting and
applying contracts in cross-border trade may therefore affect the
functioning of the internal market. In addition, the Commission
feels that markets are not as efficient as they could be. For
instance, technical developments, such as the Internet and the
introduction of the Euro, have not been fully exploited. The
Commission now asks: do existing contract law rules meet the
current and future needs of businesses and consumers in the
internal market, or is EU action required?
The Commission would like to find out if the
divergences of national contract laws obstruct the functioning of
the Internal Market and if so, to what extent. Ways in which this
can happen include: (i) lack of knowledge of other contract law
regimes might discourage companies and individuals from engaging in
cross-border transactions; and (ii) disparate national law rules
may lead to higher transaction costs, especially as regards
information and possible litigation costs. These higher costs may
also be a competitive disadvantage, for instance, for a UK supplier
competing with a French supplier for a contract with a French
The Commission is also interested in receiving
information on practical problems resulting from possible
inconsistencies between rules adopted at EU level (such as
Regulations and Directives) and from the way those rules are
applied and implemented in Member States. For instance, under
certain circumstances it is possible to apply both the doorstep
selling Directive and the Timeshare Directive with differing
results (because the period during which a consumer can exercise
his right of withdrawal is of a different length in each). The
Commission is also concerned by the differing use of general terms
and concepts which can lead to differing results in commercial and
legal practice in different Member States.
B. Options for the future of contract law in the
Responses to the Commission's Communication may
show that there are impediments for cross-border transactions. If
the Commission finds that these problems cannot be solved
satisfactorily through a case-by-case approach, it may consider
adopting a horizontal measure harmonising contract law at EU level.
The Commission suggests four possible options.
I. Allow market forces to deal with any problems
that may exist
The Commission states that although the market
creates problems of public concern, it also develops its own
solutions. For instance, different incentives by Member States and
trade associations (eg offering assistance and advice on
cross-border transactions) can efficiently channel the market in a
specific direction (eg speed up the use of new technologies or
encourage new types of commercial practices). Thus, no action
should be taken at EU level.
(c) Additional comments:
II. Adoption of a voluntary set of common
This option suggests promoting discussion to
identify the principles common to most national contract law rules.
The outcome of these discussions could be: (i) a set of common
principles, (ii) guidelines, or (iii) specific codes of conduct for
certain types of contract. These common principles could be useful
as guidelines for national legislators when drawing up legislative
initiatives, national courts and arbitrators in their decisions
(where the legal issues are not fully covered by binding rules or
where no legislative rules exist at all) and contractual parties in
drafting their contracts.
(c) Additional comment:
The Commission also remarks on the current practice
whereby a large number of standard contracts are in use in all the
Member States. These standard contracts save parties the need to
negotiate the contract terms for every single transaction. The
Commission suggests that standard contracts could be developed for
use throughout the EC.
(c) Additional comment:
III. Improve the quality of legislation already
The Commission proposes reviewing and amending all
relevant legislation with a view to simplifying the legislation and
improving its quality. This would involve building on the
Commission's current programmes which aim to improve and
consolidate existing EU legislation for the purposes of
(c) Additional comment:
IV. Adopt new comprehensive legislation at EU
This option involves creating a new legal
instrument at EU level which could, for example, be an optional
model chosen by the contractual parties or a safety net of fallback
provisions where parties have not provided a solution for a
possible problem in the contract. The Commission states that the
choice of instrument depends on a number of factors, including the
degree of harmonisation envisaged.
A Directive would give Member States a degree of
flexibility, but may allow differences that might lead to obstacles
for the functioning of the internal market. A Regulation would give
Member States' less flexibility, but would ensure more transparent
and uniform conditions for economic operators in the internal
market. A Recommendation would be appropriate if a purely optional
model is chosen.
Regarding the binding nature of the measures, the
Commission suggests the following approaches:
(i) a purely optional model which would apply only
where the parties specifically state that it will apply. An example
is a Recommendation or a Regulation which applies when the parties
agree their contract is to be governed by it.
(ii) a set of rules which would apply unless their
application were excluded within the contract. This could co-exist
with national law or replace it.
(iii) a set of "mandatory" rules whose application
cannot be excluded by the contract. This would replace existing
Do you think that a measure at EU level should be
in the form of option (i), option (ii) or option (iii) above?
Do you have any further suggestions for efficient
and effective solutions to the problems identified?
V. Examples of concrete problems
The Commission would like to receive information on
specific problems encountered by companies as a result of the
co-existence of different national contract laws. If you have
experienced such difficulties, perhaps you could provide us with
the following information:
1. Have you encountered difficulties
in the exercise of your activities as a result of the application
of legal rules in EU Member States (other than the country in which
the head office of your business is registered)?
2. If your answer to question 1 is Yes, please
indicate which country (or countries) was involved.
Austria, France, Italy, Spain, Portugal, Greece,
United Kingdom, Ireland, Belgium, Luxembourg, Sweden, Denmark,
Germany, Finland, Netherlands
3. Has the application of the contract laws in one
or more of these countries been the cause of your experiencing
difficulties with regard to contracts, deals or agreements which
you have been engaged in those countries?
4. If so, would you generally describe these
difficulties as being:
(a) of a financial nature (eg the incurring of
higher costs owing to information needs and/or possible
(b) as a result of inconsistencies between EU
measure or from the way they have been implemented
(c) as a result of a lack of knowledge of other
5. Please describe the arrangements in which the
application of the foreign laws made cross-border trade more
onerous, or even impossible, as well as the reasons why this was
VI. Brief description of your business
Please indicate the following:
The nature of your business: manufacturer, service
provider, financial services provider, salesman, tradesman or
Sector of activity:
The size of your company, based on number of
less than 50 employees
between 50 and 200
between 200 and 500
between 500 and 1000
more than 1000?
Thank you for completing this Survey.