Comentario del MPI al Libro Verde sobre un Derecho contractual europeo para consumidores y empresas

El Max-Planck-Institut für ausländisches und internationales Privatrecht (Hamburgo) ha hecho público el comentario que un grupo de trabajo del Instituto ha elaborado sobre el Libro Verde de la Comisión sobre opciones para avanzar hacia un Derecho contractual europeo para consumidores y empresas, de 1 de julio de 2010 [COM(2010)348 final].

El comentario, titulado "Policy Options for Progress Towards a European Contract Law Comments on the issues raised in the Green Paper from the Commission of 1 July 2010, COM(2010) 348 final", ha sido elaborado por el grupo de trabajo integrado por Jürgen Basedow, Gregor Christandl, Walter Doralt, Matteo Fornasier, Martin Illmer, Jens Kleinschmidt, Sebastian A.E. Martens, Hannes Rösler, Jan Peter Schmidt y Reinhard Zimmermann.

El comentario contiene las siguientes conclusiones y recomendaciones (véanse las pp. 70 y ss. del documento):

"1. The Commission's Green Paper on policy options for a European contract law addresses the possible form, scope, and character of future action to be taken in this field, rather thanquestions of substantive contract law. The content of the document which will emerge is still unknown at this stage. Any comment must therefore be equally limited and of a necessarily preliminary nature.
2. The Max Planck Working Group welcomes initiatives to overcome the fragmentary and inconsistent state of contract law prevailing in the European Union and its Member States at present. However, any legislative initiative should be preceded by a proper review of the existing acquis and should be coordinated with the current work on a Consumer Rights Directive (see paras. 69 ff.).
3. Disputes arising from contracts are decided by the courts of the Member States in very large numbers. Legislative initiatives by the EU in this field are bound to lead to a considerable increase in referrals to the Court of Justice to ensure uniform interpretation. Any contract law legislation should therefore proceed hand-in-hand with the development of a strategic conception for the future evolution of the EU judiciary in order to enable the Court of Justice to cope with the increase in workload which must be envisioned (see paras. 150 ff.).
4. After 10 years of deliberations on a European contract law, the Commission might be expected to address the issue of legislative competence which is crucial for the choice of options 4-7 outlined in the Green Paper and which is usually one of the first questions addressed when a new dossier is put on track. Vague remarks about subsidiarity and proportionality are not a proper substitute for the specification of a legal basis.
5. While Art. 81 TFEU might serve as a basis even for legislation in the field of substantive contract law, the scope of such legislation would be limited to cross-border contracts (see paras. 37 ff.) this appears to be an unattractive perspective for an internal market defined by Art. 26(2) as an "area without internal frontiers" including legal frontiers.
6. Since Arts. 114 and 115 TFEU are confined to the "approximation of laws ... of the Member States", these provisions would be unsuitable for option 4 which deliberately does not affect the laws of the Member States, but rather supplements them. Article 114 might however arguably provide the powers needed for options 5 and 6 whereas a civil code would by necessity not only include market-related rules (see paras. 41 ff.).
7. The predecessor provisions of Art. 352 TFEU have been the legal basis for optional instruments in the fields of company law and intellectual property. Article 352 would also provide the powers needed to adopt an instrument as outlined in option 4 (see paras. 56 ff.).
8. The Max Planck Working Group does not recommend pursuing options 1-3 (see paras. 7 ff.). Option 1 would hardly afford more publicity than what can already be claimed under Regulation 1049/2001. Options 2 and 3 would neither remove existing divergences between national contract laws nor provide a common legal platform for contracting parties. While their implementation would require a considerable investment in economic, human and political resources, it is unlikely that they would contribute to a spontaneous approximation of the national contract laws (some of which have been subject to a comprehensive review only recently). The results might not be worth the effort.
9. By contrast, options 5-7 aim too high at the present stage. For large portions of a civil code (option 7), the preparatory and, in particular, comparative work is still lacking (see para. 65). A minimum harmonization by means of a directive (option 5) would impose far-reaching implementation and adjustment obligations on Member States without achieving the uniformity required (see para. 66). A regulation superseding and replacing national contract law (option 6) would achieve a full harmonization within its scope of application, but the political debate about the Consumer Rights Directive indicates that the national jurisdictions are not yet ready for such a far-reaching step (see para. 67).
10. An optional instrument on contract law drafted as a regulation (option 4) seems to be preferable at present. However, contrary to the "blue button" scenario promoted in legal literature, the choice of the optional instrument will not be available to the consumer. The success of an optional instrument will entirely depend on whether professionals consider it beneficial as compared to the present state of contract law in Europe. If professionals believe that they will save transaction costs by making use of an optional instrument, they will make use of it and abandon their present recourse to the national contract laws (see paras. 102 ff.).
11. The aim of minimizing transaction costs will most effectively be attained if an optional instrument is given a broad territorial scope of application, including domestic contracts, intra-Union cross-border contracts, and contracts with parties resident in third states (see paras. 99 f., 120 ff.). As concerns the personal scope, an optional instrument should cover all contracts, including in particular B2B and B2C contracts (see paras. 114 ff.). The mode of contracting should be irrelevant in particular, an optional instrument should not be confined to online transactions (see paras. 129 ff.).
12. An optional instrument raises a number of questions concerning its choice by the parties to a contract and its application (see paras. 73 ff.). The Max Planck Working Group recommends regulating these issues by means of specific provisions tailored after the model of Arts. 3 and 10(1) Rome I, thus making use of Recital 14 of that Regulation.
13. Internally mandatory provisions of national law aiming at the protection of one of the contracting parties should be superseded by an optional EU contract law which would pursue a high level of consumer protection (see para. 83). For domestic contracts lacking any international contact, one might- as a last resort - conceive a reservation in accordance with Art. 3(3) Rome I (see paras. 127 f.).
14. Overriding mandatory provisions of a Member State as defined in Art. 9 Rome I seek to promote the public interest of that Member State rather than attain a more balanced relation between the parties' rights and obligations. Since this objective is outside the purview of contract law, and often beyond the Union's legislative powers, a reservation for such provisions appears to be necessary (see paras. 87 ff.).
15. As far as its content is concerned, an optional contract law should be conceived as a "growing" instrument (see paras. 133 ff.). Initially, general contract law and the sale of goods should be covered. At subsequent stages, other specific contracts, e.g. contracts in the financial services sector and especially insurance contracts, should be regulated either in the same instrument or in separate acts. For the time being, politically sensitive contracts such as employment and tenancy contracts as well as transactions with hardly any relevance for the internal market, such as donations, should be excluded from the agenda.
16. Areas closely related to contract law such as the law of delict/tort or unjustified enrichment/restitution often affect third parties who are not privy to the agreement on the application of an optional instrument. Such an instrument could therefore only cover those aspects which are relevant between contracting parties, in particular liability sounding in delict/tort between contracting parties and the unwinding of failed contracts (see paras. 139 ff.)."

Sobre los materiales relacionado con el Documento COM(2010)348 final, véase la entrada de este blog del día 17.8.2010.

Más información en la nota de prensa del Instituto, así como en el blog Conflict of Laws .Net.