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The Cambridge Companion to European Union Private Law

Details

  • Page extent: 382 pages
  • Size: 247 x 174 mm
  • Weight: 0.73 kg

Library of Congress

  • Dewey number: 346.24
  • Dewey version: 22
  • LC Classification: KJE995 .C36 2010
  • LC Subject headings:
    • Civil law--European Union countries

Library of Congress Record

Hardback

 (ISBN-13: 9780521516174)

The Cambridge Companion to
Cambridge University Press
9780521516174 - The Cambridge Companion to - European Union Private Law - Edited by Christian Twigg-Flesner
Frontmatter/Prelims

The Cambridge Companion to: European Union Private Law

The emergence of EU private law as an independent legal discipline is one of the most significant developments in European legal scholarship in recent times. In this Companion, leading scholars provide a critical introduction to the subject’s key areas, while offering original and thought-provoking comment on the field. In addition to several chapters on consumer law topics, the collection has individual chapters on commercial contracts, competition law, non-discrimination law, financial services and travel law. It also discusses the wider issues concerning EU private law, such as its historical evolution, the role of comparative law, language and terminology, as well as the implications of the Common Frame of Reference project. A useful ‘scene-setting’ introduction and further reading arranged thematically make this important publication the student’s and scholar’s first port of call when exploring the field.

Christian Twigg-Flesner has researched and written on aspects of EU private law, particularly consumer law, for over a decade. He is also a member of the Acquis Group, which has worked on the principles of existing EC private law and contributed to the Draft Common Frame of Reference on European contract law. Dr Twigg-Flesner has taught EU private law both at the University of Hull and abroad, having been a visiting professor at the German universities of Bielefeld, Münster and Osnabrück. He is a widely acknowledged expert on the subject and has been consulted by government departments, the Law Commission and parliamentary select committees.


Cambridge Companions to Law

Cambridge Companions to Law offers thought-provoking introductions to different legal disciplines, invaluable to both the student and the scholar. Edited by world-leading academics, each offers a collection of essays that both map out the subject and allow the reader to delve deeper. Critical and enlightening, the Companions library represents legal scholarship at its best.

The Cambridge Companion to European Union Private Law Edited by Christian Twigg-Flesner

Forthcoming titles:

The Cambridge Companion to International Law Edited by James Crawford and Martti Koskenniemi

The Cambridge Companion to Comparative Law Edited by Mauro Bussani and Ugo Mattei


The Cambridge Companion to

European Union Private Law

Edited by

Christian Twigg-Flesner


CAMBRIDGE UNIVERSITY PRESS
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Cambridge University Press
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Published in the United States of America by Cambridge University Press, New York

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© Cambridge University Press 2010

This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press.

First published 2010

Printed in the United Kingdom at the University Press, Cambridge

A catalogue record for this publication is available from the British Library

Library of Congress Cataloguing in Publication dataThe Cambridge companion to European Union private law / [edited by] ChristianTwigg-Flesner.p. cm. – (Cambridge companions to law)Summary: “The emergence of EU Private Law as an independent legaldiscipline is one of the most significant developments inISBN 978-0-521-51617-4 (hardback)1. Civil law – European Union countries. I. Twigg-Flesner, Christian,1975– II. Title. III. Series.KJE995.C36 2010346.24–dc22 2010000472

ISBN 978-0-521-51617-4 Hardback
ISBN 978-0-521-73615-2 Paperback

Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.


Contents

Preface
vii
List of contributors
viii
Table of cases
xiv
Table of legislation
xxiii
1     Introduction: key features of European Union private law
Christian Twigg-Flesner
1
2     The historical evolution of European private law
D. Heirbaut and M. E. Storme
20
3     European private law and the comparative method
Jan M. Smits
33
4     The role of the conflict of laws in European private law
Horatia Muir-Watt
44
5     Competence and European private law
Stephen Weatherill
58
6     Language and terminology
Gerhard Dannemann, Silvia Ferreri and Michele Graziadei
70
7     European private law by directives: approach and challenges
Angus Johnston and Hannes Unberath
85
8     The European Court of Justice as a motor of private law
Jules Stuyck
101
9     European contract law: the Common Frame of Reference and beyond
Hugh Beale
116
10    The way forward in European consumer contract law: optional instrument instead of further deconstruction of national private laws
Hans Schulte-Nölke
131
11    Commercial contracts and European private law
Giuditta Cordero Moss
147
12    European tort law: features of a diverse landscape
Cees van Dam
160
13    European Union property law
Sjef van Erp and Bram Akkermans
173
14    Information obligations and withdrawal rights
Peter Rott
187
15    Travel law
Jens Karsten
201
16    Unfair contract terms
Paolisa Nebbia
216
17    Unfair commercial practices and European private law
Hans-W. Micklitz
229
18    Consumer sales and associated guarantees
Ulrich Magnus
243
19    Product liability
Geraint Howells and Marcus Pilgerstorfer
257
20    Commercial agency in European Union private law
Severine Saintier
273
21    EU competition law and European private law
Giorgio Monti
286
22    Non-discrimination and European private law
Fryderyk Zoll
298
23    Financial services in European Union private law
Jerzy Pisuliński
313
Further reading
329
Index
340

Preface

For those of us who teach European private law, one thing that has been lacking thus far is a single text that could be used for this purpose. Although the scholarly literature on European private law is voluminous, finding an ‘access point’ for this subject has been more difficult. When Cambridge University Press decided to develop its successful Companion series by adding titles on particular areas of law, a unique opportunity for putting together such a single text presented itself.

The purpose of this Companion to European Union Private Law is twofold: first, it explores many of the general themes that have emerged in this subject; and, secondly, it examines specific topics, such as unfair terms, withdrawal rights, sales or non-discrimination. The overall purpose of this Companion is to enable the reader to gain solid foundations in this subject, while those already experienced in this field might find a fresh look at the broader picture of interest.

My thanks go to all the contributors to this Companion for agreeing to participate in this venture, to Sinéad Moloney and Cambridge University Press for inviting me to take on this project, and to Daniel Metcalfe for assisting with the editing process for some of the chapters. The biggest thanks go to Bev and Sophie, who have (once again) patiently endured my disappearance into the study for hours on end to complete the editing process.

Note: A word on references to Treaty Articles

The Lisbon Treaty entered into force after the manuscript was finalised. References to Treaty Articles are, therefore, in their pre-Lisbon version, but the revised Article numbers have been given in square brackets, also indicating whether the new provision will be in the Treaty on the Functioning of the European Union (TFEU) or the Treaty on European Union (TEU).

Christian Twigg-Flesner
Hull, August 2009


Contributors

Bram Akkermans is Assistant Professor of European Private Law at the Faculty of Law, Maastricht University, the Netherlands. He specialises in comparative and European property law. He is also editorial assistant for the European Property Law Journal and a member of the Ius Commune Casebook property law team. He has published on aspects of European and comparative property law.

Hugh Beale is a professor of law at the University of Warwick, UK. He edited with Ole Lando Principles of European Contract Law (vols. I and II, 2000 ) and with A. Hartkamp, H. Koetz and D. Tallon, the Contract volume of the Casebooks on a Common Law of Europe (2002). He is the General Editor of Chitty on Contracts. He was a member of the Study Group on a European Civil Code and of the team responsible for the Draft Common Frame of Reference (2009). From 2000 to 2007 he served as a Law Commissioner for England and Wales.

Cees van Dam is Visiting Professor at King’s College London, UK, Honorary Professor at Utrecht University, the Netherlands and an independent legal consultant. In 2006, he published European Tort Law, the first handbook in this area. His expertise includes business and human rights, regulation, unfair commercial practices and law and cultural diversity (www.ceesvandam.info).

Gerhard Dannemann is Professor of English Law, British Economy and Politics at Humboldt University, Berlin, Germany. He has written widely on the comparative law of contracts, torts, unjust enrichment and conflict of laws. His books include The German Law of Unjustified Enrichment and Restitution (2009). He is general editor of the Oxford University Comparative Law Forum, and chairs both the Terminology Group and the Redaction Committee of the Acquis Group.

Sjef van Erp is Professor of Civil Law and European Private Law at the Faculty of Law, Maastricht University, the Netherlands. He has published widely on issues of European and comparative private law, especially comparative and European property law. Sjef van Erp is president of the Netherlands Comparative Law Association, editor-in-chief of the Electronic Journal of Comparative Law and of the European Property Law Journal, as well as editor


of the Ius Commune Casebook property law. He also serves as deputy justice in a Court of Appeal.

Silvia Ferreri is Professor of Comparative Private Law at the University of Torino, Italy. She has published several books on the harmonisation of legal systems (including a study of the mechanisms of incorporation of international instruments into national legal systems), the interpretation of contracts and the contract of sale, as well as a comparative study on the remedies to recover possession of movables. She is a member of the International Academy of Comparative Law, an active contributor to the Association H. Capitant des amis de la culture juridique française and a member of the Acquis Group.

Michele Graziadei is Professor of Private Law at the University of Torino, Italy and is a member of the Acquis Group. He teaches at the International Faculty of Comparative Law, Strasbourg. He has published on comparative law methodology, comparative legal history, civil law, law and translation, and has a vast experience of collaboration on international research projects on European private law. His recent publications include: ‘Comparative Law as the Study of Transplants and Receptions’, in M. Reimann and R. Zimmerman (eds.), The Oxford Handbook of Comparative Law (2006); Legal Transplants and the Frontiers of Legal Knowledge (2009); What Went Wrong? (2010).

Dirk Heirbaut is Professor of Legal History and Roman Law at the University of Ghent, Belgium. His publications are on legal history in general, medieval customary law and Belgian law during the nineteenth and twentieth centuries. He is a member of the editorial board of the Legal History Review and co-editor of the series Studies in the History of Private Law.

Geraint Howells is Professor of Commercial Law at Manchester University and a barrister at Gough Square Chambers, London, UK. He has written widely on consumer law issues (his books include Comparative Product Liability, Consumer Product Safety, Consumer Protection Law, EC Consumer Law, Product Liability and European Fair Trading Law). He is President of the International Association of Consumer Law.

Angus Johnston is a senior lecturer in law at the University of Cambridge, UK. He specialises in European law, including European energy law. His books include Introduction to Competition Law (2006) and The German Law of Contract (2006, with Sir Basil Markesinis and Hannes Unberath). He also now edits Markesinis and Deakin’s Tort Law (2007, with Markesinis and Simon Deakin).

Jens Karsten studied law at the University of Frankfurt/Main, Germany, and obtained an LLM from the University of Nottingham in 1996. He is legal adviser to a European trade association and affiliated to the Scandinavian Institute of Maritime Law of the University of Oslo, Norway. He has published on European contract law and consumer law in English, French and German. The main focus of his present work is to advocate for the recognition of ‘EC passenger law’ as a branch of Community law in its own right.

Ulrich Magnus is Professor Emeritus of Civil Law, Private International Law and Comparative Law at the University of Hamburg, Germany. He was also a judge at the Court of Appeal in Hamburg, Germany. He has published widely on both European and international sales law (UN Convention on the International Sale of Goods).

Hans Micklitz is Professor of Economic Law at the European University Institute (EUI), Florence, Italy. Before joining EUI, he was Professor of Civil Law at the University of Bamberg, Germany. He has undertaken many comparative studies on aspects of European private law and has authored and edited around fifty books. His current work focuses on administrative enforcement and judicial cooperation, as well as models of social justice in Europe.

Giorgio Monti is a reader in law at the London School of Economics, UK. He is the author of EC Competition Law (2007) and of several articles on various aspects of competition law. He is on the editorial board of the Modern Law Review.

Giuditta Cordero Moss, Dr juris (Oslo), PhD (Moscow), is a professor at the University of Oslo, Norway. Originally an Italian lawyer, she has been practising the law of international commercial contracts for over two decades, first as a corporate lawyer and, since she became a full-time academic, as an arbitrator. She writes extensively on private international law, arbitration and comparative law of contracts.

Horatia Muir Watt is a professor and director of the programme Global and Comparative Legal Studies at Sciences-po, Paris, France. She is editor-in-chief of the Revue critique de droit international privé. Her publications include a textbook on Private International Law (PUF 2007, with Dominique Bureau), a series of Hague lectures on the economic aspects of private international law (2005) and two books relating to regulation and governance in European private law with Fabrizio Cafaggi (The Making of European Private Law, 2 vols., 2008, 2009).

Paolisa Nebbia, before returning to Italy in 2009, was a reader in law at the University of Leicester, UK, having previously been a Fellow in Law at St. Hilda’s College, Oxford. She holds a PhD (Southampton) and an LLM in legal theory from the European Academy of European Law in Brussels. She is also a visiting professor at the universities of Turin and Lyon. She is a qualified ‘avvocato’ and solicitor.

Marcus Pilgerstorfer is a barrister specialising in product liability at Old Square Chambers, London, UK. His experience ranges from large group pharmaceutical litigation to individual and simple product cases. Marcus also has an active academic research interest focusing on comparative aspects of European product liability law.

Jerzy Pisulinski is Professor of Private Law at Jagiellonian University, Krakow, Poland. He is a member of the Codification Commission for Private Law of the Polish Ministry of Justice and a member of the Acquis Group. He specialises in the law of obligations, property law, consumer law, banking law and European civil procedure. He is co-editor of Rechtstransformation in der Europäischen Union (Nomos) and the Polish Quarterly of Private Law (Kwartalnik Prawa Prywatnego).

Peter Rott is an associate professor of European private law at the University of Copenhagen, Denmark. He has published widely on EU, comparative and national consumer law and general contract law. He is joint author of Understanding EU Consumer Law, has authored and co-authored books on the implementation of various EC directives in the Member States and is a board member of the International Association of Consumer Law.

Severine Saintier is a senior lecturer in law and convenor of the Institute for Commercial Law Studies, Sheffield University, UK. She has written extensively on aspects of EU private law, especially in the field of commercial agency. Her books include Commercial Agents and the Law (2005), co-written with Jeremy Scholes. She is a member of the Working Team on Mandate Contracts which is part of the Study Group on a European Contract Civil Code.

Hans Schulte-Nölke is Professor of European Private Law, Comparative Law and Legal History at the University of Osnabrück, Germany, where he is also a director of the European Legal Studies Institute. He is the coordinator of the CoPECL Network of Excellence which prepared the Draft Common Frame of Reference, and of the Acquis Group. He also directed the Consumer Law Compendium study for the European Commission, and has published widely on EU consumer and private law.

Jan Smits is Professor of European Private Law and Comparative Law at Tilburg University, the Netherlands, and Research Professor of Comparative Legal Studies in the University of Helsinki, Finland. He has written extensively on European private law and Dutch law. His books include The Making of European Private Law (2002) and he is the editor of the Elgar Encyclopedia of Comparative Law (2006). He also directs the Tilburg Institute of Comparative and Transnational Law (TICOM).

Matthias E. Storme is Professor of Belgian, European and Comparative Private Law and Civil Procedure at the Law School of the Catholic University, Leuven, Belgium. He also practises law as a member of the Bar in Brussels. He is joint editor of the European Review of Private Law and editor of the Tijdschrift voor Privaatrecht. He was a member of the Commission on European Contract Law (Lando Commission) and of the Compilation and Redaction Team of the CoPECL Network that prepared the Draft Common Frame of Reference for European contract law.

Jules Stuyck is Professor of European Law and Consumer Law at the Catholic University, Leuven, Belgium, and teaches at the Radboud University, Nijmegen, the Netherlands, the Central European University in Budapest and the Pantheon-Assas Paris II University. He is partner and head of the department of European Law and Competition Law at Liedekerke, Brussels. He has published extensively on EU internal market issues, consumer law and competition law. He is a member of several editorial boards.

Christian Twigg-Flesner is a reader in law and Convenor of the Trade and Commercial Law Centre, Law School, University of Hull, UK. He has written widely on aspects of EU private law, especially consumer law. His most recent book is The Europeanisation of Contract Law (2008). He is joint editor of the Journal of Consumer Policy, a member of the Acquis Group Redaction Committee, and on the consulting board of the Society of European Contract Law (SECOLA). He is a co-author of the EC Consumer Law Compendium (2008).

Hannes Unberath is Professor of Law at the University of Bayreuth, Germany. Formerly, he was Professor of Law at the Friedrich-Schiller University, Jena and judge at the Thuringian Court of Appeal. He has written extensively on comparative law and private law theory. His books include The German Law of Torts (2002, with Sir Basil Markesinis), Transferred Loss (2003), The German Law of Contract (2006, with Sir Basil Markesinis and Angus Johnston) and Die Vertragsverletzung (2007).

Stephen Weatherill is the Jacques Delors Professor of European Law at the University of Oxford, UK. He is also a Fellow of Somerville College and Deputy Director for European Law at the Institute for European and Comparative Law, Oxford. He has published across a wide range of matters affected by EC law and policy.

Fryderyk Zoll is a professor at the Jagiellonian University, Krakow and Leon Kozminski Academy of Entrepreneurship and Management, Warsaw, Poland. He also manages the Coordination Unit of the Foreign Law Programme at the Jagiellonian University. He is a member of the Research Group on the Existing EC Private Law (Acquis Group) as well as of the Draft Common Frame of Reference Team.




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