Comments on: EC Commission Presents a Proposal for a Directive on Consumer Rights http://conflictoflaws.net/2008/ec-commission-presents-a-proposal-for-a-directive-on-consumer-rights/ News and Views in Private International Law Fri, 12 Mar 2010 12:42:34 -0800 http://wordpress.org/?v=2.9.2 hourly 1 By: Jens Karsten http://conflictoflaws.net/2008/ec-commission-presents-a-proposal-for-a-directive-on-consumer-rights/comment-page-1/#comment-102551 Jens Karsten Wed, 15 Oct 2008 14:46:09 +0000 http://www.conflictoflaws.net/?p=1276#comment-102551 Clearly, Article 43 of the proposed Directive marks the beginning of the demise of scope-clauses of the 1990s generation of consumer directives (the death-knell would be the abrogation of Article 12(2) of Directive 2002/65/EC). It’s perhaps the return to the pure teachings of PIL, but certainly consumer protection “cut one notch lower.” It is therefore worth recalling the motivation behind scope-clauses, summarised on pages 247 to 253 in: Tenreiro, M. / Karsten, J. (1999) Unfair terms in consumer contracts: uncertainties, contradictions and novelties of a Directive, in: Europäische Rechtsangleichung und nationale Privatrechte (eds.: Schulte-Nölke and Schulze), pp. 223-276 Clearly, Article 43 of the proposed Directive marks the beginning of the demise of scope-clauses of the 1990s generation of consumer directives (the death-knell would be the abrogation of Article 12(2) of Directive 2002/65/EC). It’s perhaps the return to the pure teachings of PIL, but certainly consumer protection “cut one notch lower.” It is therefore worth recalling the motivation behind scope-clauses, summarised on pages 247 to 253 in:

Tenreiro, M. / Karsten, J. (1999) Unfair terms in consumer contracts: uncertainties, contradictions and novelties of a Directive, in: Europäische Rechtsangleichung und nationale Privatrechte (eds.: Schulte-Nölke and Schulze), pp. 223-276

]]> By: Giorgio Buono http://conflictoflaws.net/2008/ec-commission-presents-a-proposal-for-a-directive-on-consumer-rights/comment-page-1/#comment-102193 Giorgio Buono Tue, 14 Oct 2008 11:53:29 +0000 http://www.conflictoflaws.net/?p=1276#comment-102193 Art. 43 of the proposed Directive ("If the law applicable to the contract is the law of a Member State, consumers may not waive the rights conferred on them by this Directive") simply states the nature of (internal) mandatory rules of the protective provisions of the directive, so that they cannot be derogated from by contract ("by agreement", according to the new Rome I reg.), but it does not interfere with the conflictual mechanism (see also Recital n. 59). On the contrary, clauses as art. 6(2) of Dir. 93/13 determine autonomously their own scope of application, irrespective of the bilateral conflict rules of the Rome Convention (Professors Jayme and Kohler - in their article in RCDIP, 1995, p. 1 ff. - paradoxically noted that it seems as if these provisions were written without taking into account the very existence of the Rome Convention; see also the in-depth analysis carried on by Stephanie Francq in her book on "L’applicabilité du droit communautaire derivé au regard des méthodes du droit international privé", Bruxelles/Paris, 2005). Moreover, their transposition in the national legal systems varied greatly from one Member State to another, adding uncertainty (see for instance the infringement procedure against Spain in case C-70/03). At first sight, these problems should not arise in the case of the proposed directive. Art. 43 of the proposed Directive (“If the law applicable to the contract is the law of a Member State, consumers may not waive the rights conferred on them by this Directive”) simply states the nature of (internal) mandatory rules of the protective provisions of the directive, so that they cannot be derogated from by contract (“by agreement”, according to the new Rome I reg.), but it does not interfere with the conflictual mechanism (see also Recital n. 59).

On the contrary, clauses as art. 6(2) of Dir. 93/13 determine autonomously their own scope of application, irrespective of the bilateral conflict rules of the Rome Convention (Professors Jayme and Kohler – in their article in RCDIP, 1995, p. 1 ff. – paradoxically noted that it seems as if these provisions were written without taking into account the very existence of the Rome Convention; see also the in-depth analysis carried on by Stephanie Francq in her book on “L’applicabilité du droit communautaire derivé au regard des méthodes du droit international privé”, Bruxelles/Paris, 2005). Moreover, their transposition in the national legal systems varied greatly from one Member State to another, adding uncertainty (see for instance the infringement procedure against Spain in case C-70/03).

At first sight, these problems should not arise in the case of the proposed directive.

]]> By: Jens Karsten http://conflictoflaws.net/2008/ec-commission-presents-a-proposal-for-a-directive-on-consumer-rights/comment-page-1/#comment-101943 Jens Karsten Mon, 13 Oct 2008 16:04:27 +0000 http://www.conflictoflaws.net/?p=1276#comment-101943 ... and of course Article 7(2) of Directive 1999/44. … and of course Article 7(2) of Directive 1999/44.

]]> By: Jens Karsten http://conflictoflaws.net/2008/ec-commission-presents-a-proposal-for-a-directive-on-consumer-rights/comment-page-1/#comment-101940 Jens Karsten Mon, 13 Oct 2008 15:58:46 +0000 http://www.conflictoflaws.net/?p=1276#comment-101940 Also note the proposed "scope clause" (Article 43 of the Directive). This is what suceeds Article 6(2) of Directive 93/13 and Article 12 of Directive 97/7. This too is PIL. Also note the proposed “scope clause” (Article 43 of the Directive). This is what suceeds Article 6(2) of Directive 93/13 and Article 12 of Directive 97/7. This too is PIL.

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