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9652 results in Comparative Law

Page 272 of 483

  • Valorisation Addendum

  • Catalina Goanta
  • Book:
    Convergence in European Consumer Sales Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    12 October 2016, pp 321-324

  • Summary

    What is the societal relevance?

    The question of whether and how the European Union should contribute to the approximation of laws at Member State level is pivotal for 2016. This year will be remembered by history as the year when the United Kingdom held a referendum on the question of staying in the European Union, and its people answered in the negative. A lot can be said about the reasons leading to this monumental decision, and the extent to which private law harmonisation played a role is rather speculative at this point. However, what private law harmonisation and Brexit – as the unfortunate fall-out was named – have in common is the discussion of sovereignty. Where can one draw a line between EU interference and national legitimacy in decision-making? As it has been seen in this study, the European Commission has been pushing consumer protection trends that are purely normative, such as the maximum harmonisation standard. The data that European institutions use to justify these measures are scarce at best, and they fail to show any form of policy assessment. What has been achieved with minimum and maximum harmonisation? The Commission might have held consultations with a limited number of stakeholders, but do the preferences explained therein, which do not fully support maximum harmonisation, reflect better standards when applied to the internal market?

    To a certain extent, these questions can and have been answered by means of doctrinary research. Nevertheless, the picture illustrated by doctrinary research is incomplete without an empirical assessment of minimum and maximum harmonisation. This is exactly what the present research results aimed to contribute to. The goal of creating the Convergence Index has been to open the floor to a wider debate on this matter. As indicated in the manuscript, the Index, as compiled here, is only a beta version, as it can and will be improved through subsequent research, to better reflect the factors it wishes to measure.

    To whom are your research results of interest?

    The findings in this manuscript are addressed to a wide array of stakeholders, from academics to policy-makers. One the one hand, as mentioned just above, the debate as to how to better measure the converging effects of harmonisation can be continued in the academic community, in an attempt to fine-tune a tool such as the Convergence Index, or create spin-offs.

  • Summary

  • Catalina Goanta
  • Book:
    Convergence in European Consumer Sales Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    12 October 2016, pp 313-320

  • Summary

    This is an empirical study about the converging effects of harmonisation policies used by the European lawmaker in consumer sales law. It aims to fill a gap in existing literature, by looking into what European consumer sales law harmonisation has achieved, and trying to develop a methodology to measure the convergence it has led to. The study encompasses both a substantive comparison as well as a numerical approach. While in the former, five directives and their subsequent transposition in the national laws of Member States are analysed, the latter focuses on the creation of the Convergence Index as a measurement tool for the effects of the harmonisation process. This research is dedicated to both academics as well as policy makers, as it aims to trigger more debate regarding benchmarking in European consumer law. Such a debate can play a role in further academic research aimed at determining whether harmonisation does indeed strengthen the internal market.

    The study consists of four chapters.

    Chapter 1 addresses the background to globalisation and legal convergence. Legal convergence, as a result of globalisation, is firstly defined, and subsequently explained by making an inventory of the driving forces behind it. This is essential for the clarification of a concept (‘convergence’) that has until now been used in many different ways and contexts. The chapter then places further emphasis on one specific policy behind convergence: the harmonisation of laws as practiced by the European Union. This opens the way for defining the aims and methodology of this study. Moreover, the Chapter also includes a discussion on the novelty of the study as well as its limitations. In laying the background for the rest of the study, Chapter 1 includes a brief historical scrutiny of European harmonisation as a policy tool that is supposed to achieve convergence. Harmonisation is then examined from a chronological point of view, and its types, as well as the competence of the European legislator to pursue this policy are addressed.

  • Chapter 1 - Introduction

  • Catalina Goanta
  • Book:
    Convergence in European Consumer Sales Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    12 October 2016, pp 1-40

  • Summary

    Globalisation and Legal Convergence: The Background

    Introduction

    This is a study about legal convergence in European consumer sales law. It aims to offer a comparative and numerical analysis on the extent to which European directives in this field contribute to convergence. It does so by developing a comparative and numerical framework to evaluate the ambit of such convergence, as well as the factors on which it is dependent. This analysis aims to fill a clear gap in the existing literature on European harmonisation that, until now, has avoided assessing the actual converging effect of European Union (EU) legislation.

    This Chapter is structured as follows. The remainder of this Section provides the background to globalisation and legal convergence. Legal convergence, as a result of globalisation, is firstly defined (Section 1.2), and subsequently explained by making an inventory of the driving forces behind it (Section 1.3). This is essential for the clarification of a concept (‘convergence’) that has until now been used in many different ways and contexts. Section 2 is then devoted to one specific policy behind convergence: the harmonisation of laws as practiced by the European Union. This opens the way for defining the aims and methodology of this study (Section 3). The remaining Sections of this Chapter focus on the novelty of the study (Section 4), its limitations (Section 5) and overall structure (Section 6).

    Although globalisation might be nothing new, the beginning of the 1990s brought another understanding of how interconnected individual economies are and how they contribute to the emergence of one new world economy. This renewed understanding of globalisation coincided with the further opening of markets, technological advances, and the democratisation of finance and information. Corporations openly became key players in governance, as did citizens. Diversity seemed to be a common feature of the multiple facets of globalisation, as it not only affected the actors involved, but the essence of the internationalisation process itself. In Stiglitz’ words, globalisation ‘encompasses many things: the international flow of ideas and knowledge, the sharing of cultures, global civil society and the global environmental movement’.

  • Chapter 2 - The Substantive Comparison

  • Catalina Goanta
  • Book:
    Convergence in European Consumer Sales Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    12 October 2016, pp 41-160

  • Summary

    Introduction and Aim of the Chapter

    As mentioned above in the methodological discussion, harmonisation in European consumer sales law is firstly addressed using a substantive comparison. In doing so, the five selected directives are discussed in the light of four questions. To remind the reader, these questions touched upon:

  • (i) the rationale and scope of the directive;

  • (ii) the standard of harmonisation set by the European legislator;

  • (iii) the reception of the standard of harmonisation; and

  • (iv) comparative notes on the transposition.

    • The reason why these criteria were chosen is three-fold. Firstly, discussing what the directives were designed to achieve, and more importantly how (criteria i and ii), is useful in recreating the policy developments envisioned by the European legislator. Secondly, by understanding how Member States have transposed European rules, the success and/or shortcomings of national alignment to these policy developments can be evaluated (criterion iii). Lastly, the comparative notes on the transposition (criterion iv) help determine which policy objectives were achieved and which weaknesses were identified in the process.

    This Chapter aims to familiarise the reader with the rules applicable to distance selling, doorstep selling, unfair contract terms, consumer sales and unfair commercial practices, both on a European level and a national one, in the light of the overall convergence theme. The five directives are discussed in chronological order, and the four criteria above are then applied to each individual directive. The Chapter thus focuses on comparing national laws – and it does so under the comparative notes – but finally the directives are also compared in a discussion relating to an eventual overlap between their provisions. What is more, the substantive comparison is not only a self-standing methodological perspective, as mentioned in Chapter 1, but it also constitutes the basis of the numerical analysis in Chapter 3 as is seen later.

    Two main points need to be taken into account when looking at the structure of this Chapter. Firstly, instead of discussing directives as a whole, the Chapter focuses on selected provisions from each of the five directives. This is because while the rationale and scope of the directives can be easily addressed altogether, not the same can be said about the said directives’ transposition. Works such as the Consumer Law Compendium database have successfully focused on outlining, article-by-article, the performance of national legislation in accommodating consumer contract directives.

  • Relevant Documents

  • Catalina Goanta
  • Book:
    Convergence in European Consumer Sales Law
    Published by:
    Intersentia
    Published online:
    13 December 2017
    Print publication:
    12 October 2016, pp 325-340

  • Summary

    European Legislation

    Council Directive 84/450/EEC of 10 September 1984 relating to the approximation of the laws, regulations and administrative provisions of the Member States concerning misleading advertising, OJ L250 of 10 September 1984.

    Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products, OJ L210 of 7 August 1985.

    Directive on the protection of consumers in respect of contracts negotiated away from business premises 85/577/EEC, OJ L372 of 31 December 1985.

    Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents, OJ L382 of 31 December 1986.

    Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, OJ L158 of 23 June 1990.

    Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, OJ L95 of 21 April 1993.

    Directive 94/47/EC of the European Parliament and the Council of 26 October 1994 on the protection of purchasers in respect of certain aspects of contracts relating to the purchase of the right to use immovable properties on a timeshare basis, OJ L280 of 29 October 1994.

    Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance contracts, OJ L144 of 4 June 1997.

    Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems, OJ L166 of 11 June 1998.

    Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the protection of consumers’ interests, OJ L166 of 11 June 1998.

    Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees, OJ L171 of 07 July 1999.

Page 272 of 483