The current limits of European harmonisation in consumer contract law

ERA Forum (2011) 12: 39–57DOI 10.1007/s12027-011-0186-z

A RT I C L E

The current limits of European harmonisationin consumer contract law

Geraint Howells · Norbert Reich

Published online: 17 February 2011© ERA 2011

Abstract This paper is concerned with the Proposed Consumer Rights Directive.In particular it considers the choices to be made concerning minimum and maximalharmonisation. In doing so it draws upon previous experiences of harmonisation andin particular reflects on the approach of the European Court of Justice. The aim isto consider which areas of the Proposed Consumer Rights Directive require maximalharmonisation and which ones can be left to minimal harmonisation.

Keywords Consumer protection · Harmonisation · Information ·Right of withdrawal · Sale of goods · Unfair terms

1 Introduction

The Commission proposal for a Consumer Rights Directive (pCRD) of 8 October20081 has generated as much debate about the relationship between national and

1COM (2008) 614 final.

This paper is based on our report for the EU Parliament, Study on the extent of harmonisationin Consumer Contract Law, available at http://www.europarl.europa.eu/meetdocs/2009_2014/documents/imco/dv/study_howells_reich_/study_howells_reich_en.pdf and on the presentation givenby Prof. Geraint Howells at the ERA’s Annual Conference on European Consumer Law 2010,held on 14–15 October in Trier.

Prof. G. HowellsSchool of Law, University of Manchester, Oxford Road, M13 9PL Manchester, UKe-mail: [email protected]

Prof. em. Dr. Dr. hc. iur. N. Reich (�)University of Bremen, Fachbereich 6 Rechtswissenschaft, 28353 Bremen, Germanye-mail: [email protected]

http://www.europarl.europa.eu/meetdocs/2009_2014/documents/imco/dv/study_howells_reich_/study_howells_reich_en.pdf

http://www.europarl.europa.eu/meetdocs/2009_2014/documents/imco/dv/study_howells_reich_/study_howells_reich_en.pdf

mailto:[email protected]

mailto:[email protected]

40 G. Howells, N. Reich

European law as it has about the content of the European rules on consumer contractlaw. This is because in contrast to most previous consumer contract law initiatives thepCRD started from a “full harmonisation” approach in Art. 4 with very few excep-tions. This policy has been widely criticised2 and there seems to be a broad agreementthat this approach is too rigid. Part of the reason for the strong reactions to this changein policy is because it focuses attention of the underlying rationale and quality of Eu-ropean laws. Naturally if these are found to be wanting then resting full authority forconsumer protection in the hands of the European legislative process is likely to beresisted and the Proposal which aimed to meet the EU constitutional requirement of ahigh level of consumer protection marked in several respects a reduction in protectionfrom previous European laws, particularly as regards sale of goods law. However, theinternal market would undoubtedly be improved if there were no contract law barri-ers to entry. Balancing these twin objectives is a difficult task that has been playedout against the rhetoric of minimal, full or maximal or an intermediate targeted fullharmonization.

Our immediate interest in this issue was aroused by writing a report for the Eu-ropean Parliament on the topic. At the time there were two drafts documents in cir-culation: The draft report of the Committee on the Internal Market and ConsumerProtection submitted by Mr. Andreas Schwab, MEP of 9.6.2010 (in the following:the SchwabRreport) and the draft opinion of the Legal Committee submitted by Mrs.Diane Wallis, MEP of 24.8.2010 (the Wallis Opinion).

Both documents agreed that the original Commission proposal should be replacedby a more flexible approach, which in the Schwab Report is called a “targeted fullharmonisation”, whilst the Wallis Opinion favoured the traditional minimum har-monisation approach of the four directives under review, but allows for a limitedarea of “full harmonisation” for more technical aspects, particularly with regard tothe right of withdrawal which the consumer already enjoys in the areas of directand distance selling and which is to be given common rules in a new move towards“a horizontal approach”.

To assist this process we produced a note which provided an overview of the ex-isting ECJ case law on questions of harmonisation, starting with the earlier case lawon minimum harmonization and coming later to questions of full harmonization anda detailed comparison of the different approaches proposed by the two reporters withregard to the extent of full harmonisation versus responsible minimum harmonisa-tion. This paper draws upon that research and whilst not seeking to prescribe theway forward on what is an essentially political question of the extent of harmoniza-tion nevertheless we hope to assist in finding a way forward which uses maximalharmonization where possible to assist the functioning of the internal market whilstrespecting national consumer protection traditions where necessary.

The central question of the analysis is a truly federal one: how far may EU legis-lation using its broad internal market competence “intrude” into “reserved Member

2Howells/Schulze [9], p. 6. Reich [21], pp. 7–39; with Micklitz [14], pp. 471–519; with Micklitz/Reich/Rott[18], p. 376 (Japanese translation in preparation); see also: Rott/Terryn [22], p. 456; Gsell/Herresthal [4];Micklitz [15], p. 47 ff.; Huguenin/Hermann/Benhamou [10], p. 159; Artz [1], p. 171; Jud/.Wendehorst [11];Chr. Twigg-Flesner/D. Metcalf [26], p. 368; M.W. Hesselink [5], p. 290; Hesselink [6], p. 57; Whittaker[28], p. 223; Smits [23], p. 5; more positive (with the exception of unfair terms): Hondius [7], p. 103.

The current limits of European harmonisation in consumer contract law 41

State” prerogatives, for instance with regard to consumer information, contract for-mation, remedies for non-performance, unfair terms, and in the end enforcement.

The question of harmonisation cannot be solved without an answer to the questionof “pre-emption”, or, in the words of the ECJ, preclusion towards opposing MemberState law. It is obvious that minimum harmonisation and full harmonization come todifferent results:

• Minimum harmonisation as it has been used in the past and as it figures under pri-mary law in several policy areas like non-discrimination (Art. 19 TFEU, ex-Art.13EC), employment conditions (Art. 153 (4) TFEU, ex-Art. 137 (2) EC), consumerprotection with regard to special action under Art. 169 (4) TFEU (ex-Art. 153(5) EC), and in Art. 193 TFEU (ex-Art. 176 EC) for measures on environmen-tal protection, will restrict conflicting Member State measures only insofar as it isopposed to “lower protection” (or refusal of protection as such), while allowing“better protection” measures respectively “higher protective standards” in the areaharmonized, possibly at the cost of uniformity of law in the Member States.

• Full or maximal harmonisation pre-empts Member States within the scope of ap-plication of a EU legislative act, whether “lowering” or “upgrading” protection, aswas very clearly prescribed in Art. 4 of the Commission proposal.

It should however not be forgotten that the differentiation between full harmonizationvs. minimum harmonization refers to ideal types which in practice may be muchmore complex as we will show later. The decisive question will be one of the “rightmixture” which first of all has to be decided by the EU legislator. The legal questionmust therefore be narrowed down to defining the outer EU constitutional limits of thebroad legislative discretion in adopting measures which should respect the followingregulatory triangle:

• optimise the functioning of the internal market against restrictions on the freemovement of goods and services and make sure that the competitive conditionsare not distorted by costly and grossly diverging regulations on consumer protec-tion and fair trading;

• allow the consumer to participate actively in the internal market as a citizen withcertain basic rights which are not limited to state borders;

• respect Member State autonomy in areas which traditionally and legitimately havebeen left to their competence, particularly in contract law.

It will be shown in the following analysis that the ECJ in its case law on harmoniza-tion has used a very flexible, some say “pragmatic” approach to solve this “constitu-tional puzzle”, as one may be inclined to say.

2 Case law of the ECJ on minimum harmonization

The early, quite well known and often cited cases Buet3 and di Pinto4 were handeddown under the minimum harmonisation clause of the so called doorstep-directive

3ECJ, case 382/87, Buet, [1989] ECR 1235.4ECJ, C-361/89, di Pinto, [1991] ECR I-1189.


85/577/EEC5 which, this should be remembered, already contained a proviso thatMember States could extend protection only insofar as it was compatible with theTreaty. This proviso—which was said to be satisfied in the above mentioned cases—was hypothetically directed, as could be imagined, as a “long stop” against MemberStates provisions, in implementing the directive, by trying to discriminate against EUnationals, products or services, or vice versa introduce rules on “preferential treat-ment” for national consumers or consumption items—national rules which wouldbe directed at the very heart of the then common, now internal, market. One mighttherefore argue that minimum harmonization was more than “minimum”; it could becalled perhaps “responsible minimum harmonisation”. We shall come across a goodexample of this in the recent Gysbrecht case.

Later cases continued this approach like in Karner6 and A-Punkt Schmuckhan-del.7 AG Trstenjak in her opinions in Quelle8 and Ausbanc9 vigorously defended thisapproach both with regard to internal market and consumer protection aspects as be-ing legitimate objectives of EU legislation. In her Quelle opinion of 15.11.2007 shewrote:

“In the context of consumer protection, the specific purpose of Directive 1999/44is to ensure a minimum level of harmonisation of the provisions relating to sale ofconsumer goods and associated guarantees. The requirement of a minimum level ofharmonisation is clear not only from the 24th recital in the preamble to the Directive,but also from Article 8(2) thereof, which state that Member States are free to adoptor maintain in force more stringent provisions than those provided for by the Direc-tive, in order to ensure a higher level of consumer protection. . . . In addition, it shouldbe noted that Directive 1999/44 guarantees mandatory standards for consumer rightsand that the parties to a contract are not permitted to agree a lower level of consumerprotection in accordance with which the replacement of goods would no longer befree of charge. Furthermore, it is clear from the second, fourth and fifth recitals inthe preamble to Directive 1999/44 that the ultimate aim of the attempt to achieve ahigh level of consumer protection is the smooth functioning of the internal market,which allows consumers to obtain consumer goods in other Member States freely.On that basis, a higher level of consumer protection can promote what is known as‘passive’ free movement of goods and freedom to provide services, in terms of whichconsumers purchase goods or receive services in other Member States. In order to en-sure free movement of goods and freedom to provide services, the conditions appliedto consumers in relation to the purchase of goods and the receipt of services mustbe as uniform as possible, including the conditions relating to the ‘free of charge’requirement attaching to the replacement of goods (paras 52–53).”

The Court only briefly mentioned this question in its Quelle judgement of14.7.2008 at para 32 which seemed to agree with the opinion of the AG:

5[1985] OL L 372/31.6Case C-71/02, Herbert Karner Industrie-Auktionen/Troostwijk GmbH, [2004} ECR I-3025, paras 33–34.7Case C-441/04 A-Punkt-Schmuckhandel v. Claudia Schmidt, [2006] ECR I-2093 para 12.8Case C- 404/06 [2008] ECR I-2685.9Case C-484/08 [2010] ECR I-(3.6.2010), comment J. Stuyck, ERCL 2010, 449.


“As follows from Article 8(2) of the Directive, the protection provided by itis minimal and, although Member States may adopt more stringent provisions,they may not undermine the guarantees laid down by the Community legisla-ture.”

It was taken up in more detail it up in the recent Ausbanc judgement of 3.6.2010concerning the question on whether the exclusion of so called core terms in Art. 4(2) of the unfair terms directive 93/13/EEC10 which had not been implemented inSpanish legislation prevented Member States to allow an unfairness test to be usedagainst price and similar clauses despite its minimum harmonization approach, forinstance by being opposed to the liberalising principles of EU internal market law.The Court did not find such a violation even though the control of core terms whichwas possible under Spanish law, but for instance not in the UK,11 e.g. on pricing,might create obstacles to free movement, e.g. by discouraging British companies tooffer financial services on the Spanish market. The Court wrote:

“(A)ccording to settled case-law, the system of protection introduced by theDirective is based on the idea that the consumer is in a weak position vis-à-vis the seller or supplier, as regards both his bargaining power and his level ofknowledge. This leads to the consumer agreeing to terms drawn up in advanceby the seller or supplier without being able to influence the content of thoseterms (para 27).”

Neither the Court nor the AG therefore took up the argument of the Spanish bank thatthe “rounding clause” in its banking contracts with consumers should be exemptedfrom control as its “core terms” under its Art. 4 (2). Presumably such rules were notfound to offend the Treaty by creating unjustified barriers to trade.

A last question is concerned with the concept of consumer used in EC directives. Itdefines the personal scope of application of consumer contract law, starting from thegeneral idea that the consumer as the less experienced and economically weaker parton the market needs special protection.12 Member States have been free to extend thisdefinition under the minimum protection clause. The ECJ was asked in Idealservice13

whether the definition of the consumer could be extended to legal persons which itflatly denied without making reference to the minimum harmonisation concept. How-ever, that was in the context of an Italian law that stuck to the wording of the Directiveand so did not address the situation of a Members State deliberately granting greaterprotection.

10[1993] OJ L 95/29.11See the judgement of the UK Supreme Court (former House of Lords) of 25 November 2009, [2009]UKSC 6 (on appeal from [2009] EWCA Civ 116), referring to its earlier case Director General of FairTrading v First National Bank [2001] UKHL 52; [2002] 1 AC 481; for a critical analysis see Micklitz [13],p. 471; same ZEuP 2003, p. 865.12For a recent account see case C-243/08 Pannon [2009] ECR I-4713 at para 22.13Case C-541/99 Ideal Service [2001] I-9049.


3 Case law and recent legislation on full harmonization

Two seemingly unassociated areas of consumer law, namely product liability underthe “old acquaintance” of Dir. 85/374/EEC,14 and unfair commercial practices underthe “new package” of Dir. 2005/29/EC15 have seen the Court quite outspokenly infavour of a full harmonisation approach, to be enforced against seemingly “betterMember State law”. Again we must make a long story very short and limit ourselvesto the results of this debate:

3.1 Directive 85/374/EEC on product liability

The preclusionary effects of Dir. 85/374 were first developed in a series of casesbrought by the Commission against France16 and Greece17 and the Spanish Gonza-les reference,18 prepared by very strong opinions of AG Gelhoed based on the pro-tracted legislative history of the directive, which found much criticism in literature,19

including by the authors of this paper. Despite this criticism, the Court defended itsview later in the Skov-case20 which ruled that Dir. 85/374 precludes a national ruleunder which the supplier—who under the directive is only subsidiarily liable if theproducer cannot be located- is answerable without restriction for the producer’s nofault-liability. Even though the directive did not have a full harmonisation clause as itis used today, it put restrictions on Member States concerning an extension of liabil-ity in its Art. 13 and provided for special procedural mechanisms if Member Stateswanted to extend liability in certain areas in Art. 15 of Dir. 85/374, but allowed themto maintain their existing systems of tort and contract liability. Therefore, accordingto the ECJ suppliers may be still sued under a fault based scheme, even if it resultsin a “better” protection of victims than Dir. 85/374. Denmark which was upset by theruling that it could not impose such strict liability on suppliers, who under the direc-tive only have a subsidiary liability, has used this provision to effectively side-stepthe practical impact of the ECJ judgement by introducing or maintaining a vicariousliability of the supplier for acts of the producer. How far the judgement also pre-cludes tendencies in liability law in the jurisdictions of Member States, for instance,Germany, France, and Belgium, to merge strict and fault based liability systems iforganisations are regarded as wrongdoers (so called “Organisationshaftung”),21 hasremained unclear. This raises very clearly the question of the scope of the full har-monisation principle—indeed a central area of the coming debate to which we willturn under Sect. 4.2.

14[1985] OJ L 210, 29.15[2005] OJ L 149/22 ; for an overview see Micklitz/Reich/Rott [18], at paras 2.19–2.20.16Case C-52/00 Commission v. France [2002] ECR I-3827.17Case C-154/00 Commission v. Greece [2002] I-3879.18Case C-183/00 González Sánchez/Medicina Asturia, [2002] ECR I-3901.19For a critique see Howells [8], p. 63; Whittacker [28], p. 858; Reich [19], p. 846 at 852; Mick-litz/Reich/Rott [18] at para 6.18.20Case C-402/03 Skov v Bilka Lavprisvarehus and Bilka Lavprisvarehus v Jette Mikkelsen et al. [2005]ECR I-199.21See the overview by Brüggemeier [2], at pp. 117–174.


The recent Somer case22 was concerned with the scope of Dir. 85/374 concerningproperty damage. The Court came to the following result:

“Directive 85/374 must be interpreted to mean that it does not preclude theinterpretation of domestic law or the application of settled domestic case-lawaccording to which an injured person can seek compensation for damage to anitem of property intended for professional use and employed for that purpose,where the injured person simply proves the damage, the defect in the productand the causal link between that defect and the damage” (para 33).

This may be an important decision for delimiting the scope of any maximal har-monisation. It was noted above that the Idealservice case gave a limited interpretationto the notion of consumer, but the question was left open as to Member States extend-ing the protection. Following the logic of Somer it would seem that such extensionscould be permissible, leading to the paradox that in some situations the consumermay wish to declaim their consumer status to benefit from preferential rules undernational general or commercial law.23

3.2 Dir. 2005/29/EC on unfair commercial practices

The later Dir. 2005/29 contains a full harmonisation (though limited in scope in Art. 3,particularly with regard to contract law, which is not said to be affected by the Direc-tive)24 clause, which served as a model for the Commission proposal of 8 Oct. 2008.It takes a “three level approach” at combating unfair practices, the first level beingthe “big general clause” forbidding unfair practices in Art. 5, the second contain-ing “small” general clauses on misleading actions (Art. 6) and misleading omissions(Art. 7) as well as on aggressive practices (Art. 8) and harassment (Art. 9) The thirdlevel is represented by Annex I to the Directive according to which 31 individuallylisted misleading and aggressive trading practices are unfair per se. According to theEU legislator, there are commercial practices in the Union which do not need to beindividually assessed. However, the legal character of such a “black list” was notclear at the time of adoption of the directive: does it only contain examples of in-criminated practices, or does it pre-empt Member State law to add their own black(or grey) lists for practices which they regard as unfair within their territory vis-à-visconsumers?

The VTB case25 concerned a Belgium law prohibiting combined offers to con-sumers (with some exceptions) which were not blacklisted in the Annex of the UCPD.Plus26 challenged a German prohibition on the participation of consumers in a lot-

22Case C-285/08 Soc. Moteurs Leroy Somer v. Société Dalkia France [2009] ECR I-4735.23Zoll [31].24Wilhelmsson [30], at p. 71; Whittaker [27], p. 139.25Joined cases C-261/07 and C-299/07 VTB-VAB et al. v. Total Belgium et al., [2009] ECR-2949, con-firmed by case C-522/08 Telekommunikacia Polska [2010] ECR I-(10.3.2010) para 31; comment Busseuil[3], p. 887.26Case C-304/08 Zentrale zur Bekämpfung des unlauteren Wettbewerbs v. Plus Warenhandelsgesellschaft[2010] ECR I-(10.1.2010); supporting comment Leible [12], p. 186.


tery depending on the purchase of goods or services in §4 Nr. 6 of the recently re-formed “Gesetz zur Regelung des Rechts des unlauteren Wettbewerbs” (UWG) of29.9.2009 also not contained in the Annex. The recent Mediaprint case was decidedon 9 November 2010 following reference by the Austrian Oberster Gerichtshof; it isconcerned with the Austrian prohibition to offer gifts and similar “Zugaben” in themarketing of print media27—a prohibition with a double objective, namely protect-ing consumers against gifts which deter them from rational purchasing decisions, andprotecting small media business against practices which eventually might put themout of the market because they cannot match them.

Both the Advocate General and the Court have to-date defended the full harmoni-sation principle of the Annex with strong words. AG Trstenjak wrote in VTB:

“Unlike the Belgian Law, the Directive presupposes that commercial practicesare fair as long as the precisely defined legal conditions for a prohibition arenot fulfilled. It thus follows an opposite approach, in favour of the trader’s en-trepreneurial freedom, which accords essentially with the legal concept of ‘indubio pro libertate’ (para 81).”

The Court more or less followed suit. In VTB it wrote:

“Annex I to the Directive also establishes an exhaustive list of 31 commercialpractices which, in accordance with Article 5(5) of the Directive, are regardedas unfair ‘in all circumstances’. Consequently, as recital 17 in the preamble tothe Directive expressly states, these are the only commercial practices whichcan be deemed to be unfair without a case-by-case assessment under the pro-visions of Articles 5 to 9 of the Directive. Finally, it should be noted that com-bined offers are not included in the practices listed in Annex I to the Directive.. . . In that regard, clearly, by establishing a presumption of unlawfulness ofcombined offers, national legislation such as that at issue in the main proceed-ings does not meet the requirements of the Directive (paras 56–59).”

A similar approach was chosen in Plus and was followed in Mediaprint where theopinion of AG Trstenjak of 24.3.2010 already pointed in this direction.

As a result of this case law, it can be shown that the Court is very outspoken withregard to the effects of the full harmonisation principle on Member State law.

3.3 The special case of the Brussels Convention/Regulation 44/2001

The definition of the concept of consumer was before the Court several times in itscase law concerning the Brussels Convention/now Regulation 44/2001.

In Gruber28 the Court ruled:

“a person who concludes a contract for goods intended for purposes which arein part within and in part outside his trade or profession may not rely on the

27C-540/08 Mediaprint Zeitungs- und Zeitschriftenverlag v Österreich-Zeitungsverlag [2010] ECRI-9.11.2010.28C-464/01 Johann Gruber v BayWa [2005] I-439.


special rules of jurisdiction laid down in Articles 13 to 15 of the Convention,unless the trade or professional purpose is so limited as to be negligible in theoverall context of the supply, the fact that the private element is predominantbeing irrelevant in that respect (para 54).”

This narrow definition is, however, only of importance for the Brussels instrumentsbecause of their specific purpose in delimiting jurisdiction. It does not have conclu-sive importance on the discussion on “full” vs. “minimum” harmonization, as theCourt said in para 32 of Gruber, referring to its earlier case law:

“According to settled case-law, the concepts used in the Brussels Convention—which include, in particular, that of ‘consumer’ for the purposes of Articles13 to 15 of that Convention—must be interpreted independently, by referenceprincipally to the scheme and purpose of the Convention, in order to ensure thatit is uniformly applied in all the Contracting States.”

4 Limits of harmonisation

4.1 Limits to minimum harmonisation

The conflict over Community competences was highlighted in the Court’s tobaccoadvertising judgement of 5.10.2000.29 One of the critical points of the Court was theso called minimum clause of the annulled Dir. 98/43/EC30—which is the only aspectof the judgement of interest in our context—where it wrote:

“Under Article 5 of the Directive, Member States retain the right to lay down,in accordance with the Treaty, such stricter requirements concerning the advertisingor sponsorship of tobacco products as they deem necessary to guarantee the healthprotection of individuals. Furthermore, the Directive contains no provision ensuringthe free movement of products which conform to its provisions, in contrast to otherdirectives allowing Member States to adopt stricter measures for the protection ofa general interest. . . . In those circumstances, it must be held that the Communitylegislature cannot rely on the need to eliminate obstacles to the free movement ofadvertising media and the freedom to provide services in order to adopt the Directiveon the basis of Articles 100a, 57(2) and 66 of Treaty.”

The tobacco advertising judgement was remedied in later EU legislation on to-bacco advertising which did not contain a minimum clause and allowed free move-ment of tobacco products and marketing tel quel, thus finding the support of theCourt.31

With regard to the Member States’ approach to minimum harmonisation wherethis was expressly allowed in a directive, a more nuanced analysis under primary

29Case C-376/98 Germany v EP and Council [2000] ECR I-8419 at paras 103–105.30[1998] OJ L 213/9 (annulled by case C-376/98).31Case C-380/03 Germany v EP and Council [2006] ECR I-11573 referring to case C-491/01 The Queenv Secretary of State for Health ex parte: British American Tobacco (Investments) Ltd. et al. [2002] ECRI-11453.


law aspects was undertaken by the ECJ in Gysbrechts.32 It concerned a Belgian reg-ulation, made possible under the minimum harmonisation concept of the distanceselling Dir. 97/7/EC33 forbidding the Internet provider to ask for advance paymentsand to request the credit card number of the consumer before the withdrawal periodhad lapsed. Since criminal action was brought against the Belgian Internet providerwho had violated this rule it first had to be decided whether the prohibition on mea-sures having an equivalent effect as export restrictions under Art. 29 EC (now Art. 35TFEU) applied to the case, which was confirmed according to the broad interpreta-tion given to fundamental freedoms, but not to be further discussed here. The entiredebate turned than around the justification under proportionate consumer policy argu-ments. AG Trstenjak in her opinion of 17.7.2008 condemned the Belgian regulationfor not attaining a fair balance between the supplier and the consumer concerning ad-vance payments; “absolute consumer protection” resulted in “summum ius—summainiuria”. The Court found

“that Article 29 EC does not preclude national rules which prohibit a supplier,in cross-border distance selling, from requiring an advance or any paymentfrom a consumer before expiry of the withdrawal period, but Article 29 ECdoes preclude a prohibition, under those rules, on requesting, before expiry ofthat period, the number of the consumer’s payment card (para 60).”

The first was regarded as being “necessary”, the second not—a reasoning which maybe doubted34 but which is not part of our argument. The judgement basically leadsto the conclusion that under minimum protection clauses Member States still haveto respect the proportionality criteria when their additional consumer protection pro-visions have an effect on free movement, even in a more “remote” regulation likesecurity for advance delivery by the trader during the withdrawal period.

Both judgements lead to the conclusion that the Court will scrutinise minimumprotection clauses under internal market and proportionality aspects, but it would begoing too far to argue that the Court is generally against them. This latter argumentis contrary to the recent Quelle and Ausbanc judgements which defended minimumharmonisation in sales and unfair terms law as a necessary element of consumer pro-tection!

4.2 Limits to full harmonisation

With regard to full harmonisation, the ECJ insists that this principle is limited bythe very scope of the directive and therefore leads in our above mentioned examplesbased on Dir. 85/374 and 2005/29 to two consequences:

32C-205/07 Gysbrechts [2008] ECR I-9947.33[1997] OJ L 144, 19.34Micklitz/Reich [17], pp. 349–351; for a thorough critique see Micklitz [16], p. 110, in particular on thescope of the UCPD which also affects B2B practices which only have an indirect effect on consumers.Contrary to Dir. 2005/29, the new Dir. 2006/114/EC [2006] OJ L 376/21 concerns deceptive practices inB2B relations and contains only a minimum clause; comment Busseuil [3], p. 887.


• In product liability law, the directive does not pre-empt national contract or tortliability systems based on warranties or fault, even when they come close to strictliability, nor case law concerning strict liability with regard to property damage.

• In determining the unfairness of commercial practices, even if they are not listedin the annex, they can still be caught by the general clauses on unfair, misleadingor aggressive practices based on a case-by-case approach which can be supportedby state rules on evidence, based on their “procedural autonomy” and on the re-quirement written into the directive itself to provide for effective remedies.35

It remains to be seen whether the definition of consumer represents the limit of anyfull harmonisation effects leaving Member States freedom to provide even higherlevels of protection to non-consumers (see below).

5 Some tentative conclusions on ECJ Case law

This overview which by no means claims to be exhaustive, especially with regard tothe ongoing discussion in legal writing to which the authors have contributed, allowssome first conclusions:

• The Court will usually pay respect to the harmonisation approach chosen by the EUlegislator, whether it be minimum, full or a differentiated approach. With regard tofinding the right solution in the above mentioned regulatory triangle—internal mar-ket, consumer protection, and Member States’ autonomy—, the Court will usuallysupport the choice of the EU legislator, perhaps with a certain “bias” in directionof the internal market (see Gysbrechts).

• As a Union Court, the ECJ takes great care to scrutinize the correct fulfilmentof the Member States’ obligations and restrictions under the relevant directive,whether minimum or full harmonisation is on the agenda. The pre-emptive effectof directives is highly respected and further developed by the ECJ, in whateverdirection, whether towards “more” (Quelle”) or “less” protection (Skov).

• The Court will only set the outer limits in particular of minimum harmonization.This will happen when it can be shown that minimum harmonisation has a clearlynegative effect on free movement like in the tobacco advertising case and, to a mi-nor extent, in Gysbrechts. Most important, Member State powers under minimumharmonisation do not escape a proportionality control. The EU legislator is welladvised to respect this approach of the ECJ also when legislating in consumer mat-ters, particularly with regard to provisions relating to the definition and contentsof a certain product or service which is supposed to circulate freely in the internalmarket, including its marketing. The “further away” a certain EU provision is itsimpact on free movement, especially contract law provisions like in Quelle andAusbanc, the more welcoming the ECJ seems to be towards minimum harmonisa-tion. This is particularly important for “horizontal directives” covering broad areasof contract law.

35For details see Reich [20], p. 271.


Some guidelines might be suggested to the EU legislator to enable it to respect theapproach of the ECJ to be on the “safe side”. Reich has called this approach “half har-monisation36” which could be used without in any way prejudicing political choices.In a democratic system the final choice on how the balance should be struck betweenthe competing interests is properly a matter for accountable politicians.

6 Where we are to-day—current Acquis, Member States law, pCRD, SchwabReport and Wallis Opinion

The proposal for a Consumer Rights Directive37 proposed a move to full harmonisa-tion in most respects. This contrasts with minimal harmonisation approach of the fourdirectives which it was seeking to harmonise: doorstep selling,38 distance selling,39

unfair terms40 and consumer sales.41 The study by Schulte-Nölke, Twigg-Flessnerand Ebers (eds.), EC Consumer Law Compendium,42 shows that in several areasMember States had taken advantage of the minimal harmonisation clause.

However, political agreement has been difficult to achieve on full harmonisationto the extent proposed by the Commission due to fears that it might reduce consumerprotection and affect national legal traditions. Both the legal affairs and internal mar-ket committees have published drafts that to differing degrees move away from thefull harmonisations standard, whilst trying to target the principle on areas where theinternal market can be promoted by full harmonisation without unduly threateningconsumer protection.

First, the extent of differences on the full harmonisation principle between theSchwab Report and Wallis Opinion in comparison with the Proposal needs to beascertained.

In most respects the pCRD adopts a full (maximal) harmonisation approach, ex-cept as regards consequences for failing to fulfil information duties. The Wallis Opin-ion approach is to favour minimal harmonisation except in the specific area of rightof withdrawal. The Schwab Report starts out from the opposite position of favouringtargeted full harmonisation and making exceptions thereto.

The areas of divergence between the Schwab Report and Wallis Opinion can bedistilled down to whether the CRD should maximal requirements for:

(i) information requirements for distance and off-premises contracts, subject to along list of exceptions;

(ii) formal requirements for distance and off-premises contract;(iii) exceptions from the right of withdrawal;

36Supra note 2.37COM(2008) 614 final.38Directive 85/577/EEC: OJ 1985 L166/51.39Directive 97/7/EC: OJ L 144/19.40Directive 93/13/EEC: OJ 1993 L 95/29.41Directive 1999/4/EC: OJ 1999 L171/12.42(Sellier, 2008).


(iv) exclusions from the rules relating to distance and off-premises contracts;(v) delivery in sales contracts;

(vi) conformity with the contract;(vii) transparency in distance and off-premises contracts;

(viii) general principles for reviewing unfair terms; and(ix) effects of unfair terms.

In evaluating the options for these areas account will be taken of the policy reasonsjustifying harmonisation and consumer protection discussed below and the extent towhich those are reflected in the jurisprudence of the European Court of Justice as dis-cussed above. In making this assessment account will be taken of the extent to whichnational law currently provides for higher protection than set out in the pCRD. Nat-urally to the extent that current levels of protection are higher there will be potentialconsumer concern, although this will require an assessment of the actual value of thatadditional protection compared to the gains offered by full harmonisation. Equallythe fact that no Member State currently offers higher protection should not conclu-sively determine that they should lose the right to improve on the current law for alltime.

7 Principles justifying full harmonisation in EU market

Traditionally harmonisation based on internal market concerns has been justified toremove potential barriers to trade and distortions in competition.43 In consumer con-tract law we see the former as being the most persuasive reasons since the combi-nation of the already reasonably high minimal level of harmonisation and the smallvalue of most consumer contract claims means that rarely will the impact of rulesbe such as to significantly distort competition. What is important is that there are norules that unnecessarily impose restrictions on the way goods and services can bemarketed across borders and that where possible businesses (and consumers) are notsurprised by strict peculiarities of national law.

The details in relation to the four areas of information, cancellation, sale and un-fair terms are considered below; here we just set this into a broad context of theextent to which full harmonisation could be seen as necessary and justified underEU constitutional law. National information requirements can act as barriers to tradeby imposing precise obligations that have to be met to enter a national market (theproblem with harmonising them fully is that information obligations in fact cover awide variety of circumstances and full harmonisation may be hard to achieve with-out reducing vital consumer protection). By extension the same arguments could beapplied to other formalities for entering contracts. Similarly it is understandable thatbusiness might want to rely on the same standard terms and conditions throughoutthe EU. Any rule banning a term in all circumstances in a particular Member Statemight threaten this and so if a “black list” was included in CRD it could be arguedthis ought to be fully harmonised. Although in practice as the general clause will be

43See e.g. C-376/98 Germany v Parliament and Council [2000] ECR I-8419.


applied in the context of local laws and traditions it will be hard to ensure the secu-rity of standard terms particular if control of “core terms” is left outside the scopeof harmonisation. Cancellation rights are a modern creation in response to variousconsumer concerns and have often been influenced by European law. The harmon-isation of the circumstances in which such a right is generated and the length ofthe period and when it runs from seem apt to be fully harmonised to prevent busi-nesses being surprised by laws of the state into which they are trading. The extentto which all other aspects of the right of withdrawal (such as how consumers ex-ercise the right and its consequences) need to be harmonised is open to debate. Asregards sales law there can be an argument for harmonising any rules on the con-tent of the consumer guarantees as like information rules and standard form termsthis will assist in allowing common documentation to be used across Europe. Com-mon rules on conformity are not needed in the same way, but as differing levelsmay indirectly affect the way products are designed there is an arguable case thatthe internal market could benefit from common rules. This may be relatively easyto achieve in most states as the national rules are fairly equivalent to those found inthe current acquis (although that might equally be an argument for not needing tofully harmonise). The French may have concerns about the impact of their vice cacheprinciple, but these seem to be more related to the losing of advantageous proceduralrules on matter such as limitations than the substantive control imposed. The real de-bate in sales law is about remedies where states have different traditions. Disturbingnational autonomy on remedies would threaten current level of consumer protectionin some states. Granting Member States freedom as to the precise remedies, so longas they are effective, is in any event in keeping with EU traditions. Different reme-dies would not affect the requirements for marketing goods or services in differentMember States. The fact that occasionally a consumer may have a slightly better rem-edy available under national law than under the CRD is unlikely seriously to impedetrade.

Thus the main areas justifying harmonisation would seem to be information pro-vision rules, formalities, cancellation rights and if introduced, the blacklist of unfairterms and consumer guarantees. If one extended the scope beyond those areas wherethe justifications in terms of barriers to trade were pressing to situations where itcould be desirable because of the indirect effects, harmonisation of the conformitystandard would be the prime candidate.

8 Applying principles to substantive areas of CRD

8.1 Information and formalities

The Wallis Opinion maintains a general information obligation, but as a minimalobligation whereas the Schwab Report keeps the information rules as maximal butrestricts them to distance and off-premises contracts. The Schulte-Nölke, Twigg-Flessner and Ebers’ EC Consumer Law Compendium44 demonstrates that in both

44At pp. 95–97 and pp. 327–336.


doorstep and distance selling contexts Member States had taken advantage of theminimal harmonisation clause to include additional rights. This also blends in withthe formality rules in arts 10/11 of the pCRD for often these rules also concern theform in which the information has to be provided or the type of withdrawal formthat has to be used. Once again the Wallis Opinion opts for a minimal approach toharmonising formalities and the Schwab Report adopts a maximum approach.

It is possible that the divergence between the Schwab Report and Wallis Opinionarises because they are seeing different problems that do indeed justify different ap-proaches to full harmonisation. A maximal full harmonisation approach when appliedto general information duty is potentially too sweeping, for it places at risk consumerprotection rules not contemplated by the pCRD (for example, in the area of healthand safety and instructions for use, or imposed under national good faith clauses orprotected by art 22(5) of the Services Directive). On the other hand it would seemsensible in the field of distance and off-premises contracts to come up with an agreedlist and format of information obligations that Member States could not depart from(there being a procedure to update the list or amend the format should experiencejustify such reforms). Thus the Schwab Report approach of focusing on distance andoff-premises contracts has much to commend it, but should be limited to those in-formation and formality rules that derive from the use of that selling means. In otherwords if goods or services had specific information or form requirements (e.g. medi-cines) these should not be disapplied just because they were sold at a distance oroff-premises. Maximal harmonisation is justified for the information requirementsgenerated by the choice of particular methods of selling and the rules on this have inmany states been derived from the EU legislation in any event.

For similar reasons it seems sensible to maintain the maximal rule for transparencyas set out in art 31(4), but to limit it to distance and off-premises contracts as done inthe Schwab Report.

8.2 Withdrawal

The Schwab Report and Wallis Opinion agree that many of the rules of the rightof withdrawal should be fully harmonised. The Schwab Report contains the wel-come clarification that for goods contracts the withdrawal period only starts runningwhen the consumer obtains material possession of the goods. The extension of thewithdrawal period in both the Schwab Report and Wallis Opinion by one year wheninformation on the right of withdrawal is not supplied is to be welcomed. However,a curious exception from the full harmonisation principle in the pCRD was leavingto national law the consequences of failing to provide other information (art. 6(2)).This may be because of the difficult policy choice: the present position whereby indistance selling contracts failing to provide even minor information might prolongthe withdrawal period seems unfair to traders, but on the other hand it may be un-fair to consumers to allow traders without consequence to keep negative informationback until after the withdrawal period has expired. If one is concerned about pre-venting traders having nasty surprises when trading in other states then one mightconsider legislating to prevent a trader facing a long term right of withdrawal for


failing to provide a technical detail, but determining which is significant and insignif-icant information for this purpose may be a complex matter. However, it is one thatthe legislator is best placed to determine.

The major difference between the Schwab Report and Wallis Opinion as regardsthe right of withdrawal concerns the approach to the exceptions to certain distanceand off-premises contracts. It again sees the Schwab Report adopting a maximal ap-proach and Wallis Opinion a minimal approach. This is mirrored in the more generalexclusion of contracts from the entire chapter III of pCRD which also includes con-sumer information. It is clear from the Schulte-Nnölke, Twigg-Flesner and Ebers’ ECConsumer Law Compendium that some Member States have extended the scope ofthe rules to cover more situations in which consumers have the right of withdrawaland by having a shorter list of exclusions.45 It is hard to find a principled solution tothis dilemma, for clearly the internal market would be assisted by common exemp-tions and exclusions, but equally some Member States clearly see the current acquisas not providing sufficient protection. This is a prime example of where democraticpoliticians have to weigh the competing claims.

8.3 Sales law and consumer guarantees

Concerning the provisions on sales law and guarantees, the Schwab report and theWallis Opinion agree with regard to minimal harmonisation of remedies, time lim-its and seemingly guarantees (with more detailed formulations in the Wallis reportsubject to political agreement). The divergence concerns the scope, delivery, and theconcept of conformity. While we do not see any problems with full harmonisationregarding scope and delivery, problems may arise with regard to the concept of con-formity, particularly concerning French law which in the recent adoption of Art. L-211-13 of the Code de la consommation d’après l’Ord. 2005-136 du 17 févr. 2005(confirmée par la Loi 2006-406 du 5 fév. 2006) has provided: “Les dispositions dela présente section ne privent pas l’acheteur du droit d’exercer l’action des vices réd-hibitories telle qu’elle résulte des articles 1641–1649 du code civil ou de toute autreaction de nature contractuelle ou extracontractuelle qui lui est reconnue par la loi”.This “ parallelism” of French law would have to be abandoned in case the concept ofconformity is fully harmonised. Art. 3 of the Ord. 2005-136 has extended the “brefdélai” to a “délai de deux ans à compter de la découverte du vice.”

An argument for full harmonisation would be that the concept of “conformity”,which first was used in Art. 35 of the UN Convention of the Law of InternationalSales of 1980 (CISG) has won great acceptance in the EU (with the exception of theUK, Ireland and Portugal). In precisely defining the scope of the obligations of theprofessional seller uniformly in the EU, it seems justified to have a full harmonisa-tion approach under control of the ECJ. The standard of consumer protection is suffi-ciently high to allow the abandonment of non-conforming national standards like thetraditional French law of “vices cachés”.

On the other hand, the Quelle litigation confirms the view taken by both reportersthat remedies should not be subject to full harmonization. By excluding a claim of

45At pp. 93–94. and pp. 322–327 and pp. 340–344.


the seller for compensation of a defective good the ECJ has already guaranteed arelatively high standard of consumer protection valid within the entire EU.

8.4 Unfair terms

With regard to unfair terms both reporters agree that the black and grey lists shouldbe subject only to minimal harmonisation which seems in our opinion to be justifiedregarding their only very “distant effects” to distorting competition in the internalmarket, although possibly a case could be made for a common maximal harmonisedstandard for black listed terms. Such view favouring minimal harmonisation has re-cently also been confirmed by the adoption of Reg. (EC) No. 593/2008 (Rome I)46

which in its consumer provision of Art. 6 allows national contract law to providefor different levels of protection. The only disagreement concerns Art. 32—the ex-tent of harmonisation in Art. 37 concerning the effects of an unfair clause does inour opinion not make any difference in legal practice of Member States—about thegeneral principles of control. Both proposals repeat the “old” Art. 4 (2) of Dir. 93/13which was subject to the above mentioned Ausbanc litigation,47 which the SchwabReport would submit to full harmonisation, thereby indirectly “overruling” the ECJjudgement, while the minimal harmonisation approach of the Wallis Opinion wouldconform to the existing state of the law. It remains of course a matter of policy priorityhow the EP will decide, but the argument on whether a control of “core terms” wouldbe contrary to the internal market regime was widely debated both in the opinion ofAG Trstenjak and of the Court and in the end rejected, despite the prior Gysbrechtsjudgement. Why not leave Member States discretion how they decide on a control ofcore terms as they may be much closer to the real problems of consumers than theEU legislator?

9 Need for clarity about the nature of harmonisation

The case law of the ECJ amply demonstrates the need for clarity about the scopeof harmonisation. It is one thing to lose a debate about the scope of harmonisationduring the political process and quite another to find that the scope was differentfrom what one thought had been agreed. This latter scenario was certainly the casefor the Danish as regards supplier’s liability for product liability48 and arguable wasthe case for the Belgium law on sales promotion.49 One advantage of the pCRD’sfull harmonisation position is that it is at least clear. The rule is full harmonisationwith only limited and fairly clearly specified exceptions. However, this solution failsadequately to address the complex range of competing interests.

46Regulation (EC) No 593/2008 of the EP and the Council of 17 June 2008 on the law applicable tocontractual obligations (“Rome I”) [2008] OJ L 176/6.47See note 10 and comment by Stuyck at p. 456 pointing to the problems of a full harmonisation approachhere which would lower consumer protection.48Case C-402/03 Skov AEG v Bilka Lauprisvarenhus A/S, [2005] ECR I-199 (supra note 22).49Joined Cases C-261/07 and C-299/07VTB-VAB NV v Total Belgium NV and Galatea BVBA v SanomaMagazines Belgium NV, [2008] ECR I-2949.


A distinctive difference between the Schwab Report and Wallis Opinion is thatSchwab sticks closer to the spirit of full harmonisation by renaming art. 4 “Targetedfull harmonisation” and clearly delimiting the fields in which Member States maygo higher. Wallis does the exact opposite, referring to “Degree of harmonisation”,setting minimum harmonisation as the norm and then specifying where maximumharmonisation applies. Both the Schwab and Wallis documents have understood theneed for clarity and the choice of terminology and approach may have somethingto do with political “mood music”. However, moving forward in such a contentiousdebate the rather sterile maximal versus minimum debate might be side-stepped andthe debate moved on to more concrete terrain by deleting any general clause on theextent of harmonisation. The political tone might be set by the recitals and the mat-ter expressed explicitly within each chapter. Particularly if the approach indicatedabove (that would lead to a differentiated approach within some chapters) is adopteda case by case approach to clearly setting out the degree of harmonisation is to berecommended.

One of the problems with the full harmonisation approach is to know just whatits scope is. This is well illustrated by the debate about the definition of “consumer”alluded to above. Is it meaningful to talk about maximal harmonisation of the term“consumer”, if all that means is that anyone outside (e.g. legal persons or mixedpurpose supplies) can be subject to national regulation without the restriction of anyfull harmonisation terms? It might be thought that implicitly the consumer contractwould set a ceiling on the level of protection in any contractual situation includingthose “near” to the consumer position (such as SMEs) but being regarded as notdeserving protection as consumers in the EU legal instrument. However, it is hardlegally to conclude a measure affects contracts in general outside its scope. Whilstfew states would positively seek to provide businesses with better protection thanconsumers, it may well be that they will continue to apply existing rules that mightbe more protective than any ceiling the EU might place on consumer protection.50

10 Chrystal ball gazing

We wrote our note for the European Parliament at a time when the fate of the pCRDwas uncertain. As we go to press it is still uncertain. However, the indications are thatthe political institutions want to move forward and conclude what has been a heavilycontested process provoking literally thousands of proposed amendments. We hopethat the desire to compromise and move on does not compromise the quality of thedirective. The Commission seems to still believe in its full harmonisation approach,but is recognising the political reality that this is not achievable in many areas. Thereseems to be a lack of political trust that the European legislative process can guaranteeall the long held national traditions of consumer protection within the scope of afull harmonisation directive. Probably the Commission’s attention is switching to theoptional instrument, which may be an easier route to impose on consumers de factomaximal harmonisation through an instrument which will not be truly optional for

50CF Position in Polish sales law see Zoll [31].


consumers offered it on a take it or leave it basis when they seek to buy across bordersmost likely by clicking on a “blue button” on the Internet:51 but that is a debate forthe new year.

References

1. Artz, M.: Die „vollständige Harmonisierung“ des Europäischen Verbraucher-privatrechts, GPR(2009)

2. Brüggemeier, G.: Haftungsrecht (2006)3. Busseuil, G.: Eur. J. Consum. Law (2009)4. Gsell, B., Herresthal, C. (eds.): Vollharmonisierung im Privatrecht (2009)5. Hesselink, M.W.: The Consumer Rights Directive and the CFR: two worlds apart? ERCL (2009)6. Hesselink, M.W.: Towards a Sharp Distinction between b2b and b2c? ERevPrL (2010)7. Hondius, E.: The Proposal for a European Directive on Consumer Rights—A Step Forward, RevPrL

(2010)8. Howells, G.: SydLRev (2006)9. Howells, G., Schulze, R.: Overview of the proposed consumer rights directive. In: Howells, Schulze

(eds.) Modernising and Harmonising Consumer Contract Law, Sellier (2009)10. Huguenin, C., Hermann, M., Benhamou, Y.: Konsumentenvertragsrecht in der Gesetzgebung, GPR

(2009)11. Jud, B., Wendehorst, C. (Hrsg.): Neuordnung des Verbraucherprivatrechts in Europa (2009)12. Leible, S.: Europäische Zeitschrift für Wirtschaftsrecht, EuZW (2010)13. Micklitz, H.-W.: European Rev. of Contract Law (ERCL) (2006)14. Micklitz, H.-W.: Cronica de una muerta anunciada—The Commission Proposal on a Directive of

Consumer Rights, CMLRev, pp. 471–519 (2009)15. Micklitz, H.-W.: The targeted full harmonisation approach: looking behind the curtain. In: How-

ells/Schulze, Modernising and Harmonising Consumer Contract Law (2009)16. Micklitz, H.-W.: VTB v. Sanoma—Vollharmonisierung im Lauterkeitsrecht, Verbraucher und Recht

(VuR) (2010)17. Micklitz, H.-W., Reich, N.: Verbraucher und Recht (VuR) (2008)18. Micklitz, H.-W., Reich, N., Rott, P.: Understanding EU Consumer Law, Intersentia—Antwep, p. 376

(2009)19. Reich, N.: Liber amicorum G. Alpa (2009)20. Reich, N.: Procedural autonomy of Member States v. effective legal protection in recent Court

practice—on the way to a “Procedural plurality”. In: Festschrift Mikelenas (2009)21. Reich, N.: Von der Minimal- zur Voll- zur Halbharmonisierung, ZEuP, pp. 7–39 (2010)22. Rott, P., Terryn, E.: The Proposal for a Directive on Consumer Rights—No Single Set of Rules, ZEuP

(2009)23. Smits, J.: Full harmonisation of consumer law? A critique of the draft directive on consumer rights.

In: Festskript till Thomas Wilhelmsson, ERevPrL (2010)24. Schulte-Nölke, H.: EC Law on the Formation of Contract—from the Common Frame of Reference to

the ‘Blue Button’, 3 European Review of Contract Law (2007)25. Tonner, K.: Das Grünbuch der Kommission zum Europäischen Vertagsrecht, EuZW (2010)26. Twigg-Flesner, C., Metcalf, D.: The proposed Consumer Rights Directive—less haste, more thought?

ERCL (2009)27. Whittaker, S.: The relationship of the UCPD to European and national contract laws. In: Bernitz, U.,

Weatherill, S. (eds.) The Regulation of Unfair Commercial Practices (2006)28. Whittacker, S.: ZEuP (2007)29. Whittaker, S.: Unfair Terms and Consumer Guarantees: The Proposal for a Directive on Consumer

Rights and the Significance of Full Harmonisation’, ERCL (2009)30. Wilhelmsson, T.: In: Howells/Micklitz/Wilhelmsson, European Fair Trading Law (2007)31. Zoll, F.: The remedies for non-performance in the proposed consumer rights directive and the Euro-

peanisation of private law. In: Howells and Schulze (eds.)

51Schulte-Nölke [24], p. 332; see also Tonner [25], p. 767 referring to the Commission Green Paper of1.7.2010 (COM [2010] 348).

The current limits of European harmonisation in consumer contract law

Documents

Transcript of The current limits of European harmonisation in consumer contract law