Introduction

The Unfair Contract Terms Directive (93/13/EEC) represents not only a significant contribution to the development of EU consumer policy, but is also the cornerstone of the EU private law architecture.

The first draft proposals for a directive on unfair terms date back to the 1970s, when an intense burst of legislative activity on the part of the Member States also took place: in 1976, the Federal Republic of Germany adopted a statute on unfair contract terms; in 1977, the United Kingdom did so, too; and France followed in 1978. The introduction of different regulatory frameworks for unfair terms in several Member States somehow delayed reaching a sufficient consensus at the European level to proceed with work in that area. In addition, there were conflicting visions of the appropriate intensity of social regulation on the matter and of the acceptable degree of Community involvement in its realisation. Work resumed in 1984, but it took another nine years before the final text was eventually approved on 5 April 1993. As a whole, almost twenty years passed before the idea of a directive on unfair terms became reality. Such a long lapse of time made the directive increasingly difficult to fit within the existing domestic frameworks, which had, meanwhile, consolidated over the years. As a result, the originally innovative force of the directive turned into a ‘disturbing’ element for the national legislators, and Community intervention ended up following, rather than triggering and leading, law reform in the Member States.

Sale of goods:

The sale of goods is essential for the daily life of everybody, so it is no wonder, therefore, that this type of contract is at the centre of private law. All the European codifications grant it a prominent place. Even jurisdictions which rely on the doctrine of precedent have codified aspects of sales law by enacting legislation, such as Great Britain in the Sale of Goods Act 1979, or Denmark, Finland, Iceland, Norway and Sweden in their Nordic Uniform Act on the Law Applicable to International Sales of Goods 1964. Moreover, since Roman times, the solutions developed for legal problems of sales have regularly been the forerunner and model for general contract law.

Astonishingly, when the European Community cautiously began to harmonise and ‘Europeanise’ commercially relevant private law, particularly consumer contract law, in the mid-1980s it did not start with sales, but with doorstep contracts. But it took until the early 1990s for the EU to extend its activities to the core of civil law and into the field of sale of goods. Finally, on the eve of the new millennium in 1999, Directive 99/44/EC of the European Parliament and the Council of 25 May 1999 on Certain Aspects of the Sale of Consumer Goods and Associated Guarantees was enacted, and the Member States had to implement the directive by the end of 2001.

Introduction

This chapter is about the role of the European Court of Justice (ECJ) in the development of private law. The ECJ has done so by modelling private law through the interpretation of primary law (for example, the fundamental freedoms and the competition rules) and secondary Union law (such as consumer directives and regulations) and by creating rights on the basis of the nature of the Union legal order and/or of general principles of Union law (liability for infringement of Union law). Institutional aspects, private international law (like the Rome Regulations), the role of the court in settling private law disputes according to the law applicable to the contract under Article 238 EC [Article 272 TFEU] (‘arbitration clause’) and the impact of EC sector-specific regulation on contract law will be disregarded. The future role of the ECJ, if and when some form of general European contract law emerges, or the court’s case law on unjust enrichment, which basically concerns the relationship between individuals and the administration, are also omitted. Six areas in which different aspects of the role of the court become apparent have been selected. Three relate to fundamental freedoms, two to secondary Union law and one to general principles of Union law. These different areas will also show differences in the degree of readiness of the court to interfere in national legal orders.

Private law and the constitutional limits of EU competence

Article 5(1) EC [Article 5 TEU] provides that the EU shall act within the limits of the powers conferred upon it by the Treaty and of the objectives assigned to it therein. There is no competence to be found in the Treaty which confers any general authorisation on the EU to operate in the field of private law. There are, however, particular legal bases that can feasibly be exploited to adopt legislation that touches private law. One is found in Article 153(3)(b) EC [Article 169(2)(b) TFEU], which provides that the Community may adopt measures which support, supplement and monitor the policy pursued by the Member States in order to promote the interests of consumers and to ensure a high level of consumer protection. This was an innovation of the Treaty of Maastricht, so it has been available as a legislative competence only since 1993. Judicial cooperation in civil matters may be pursued by reliance on Articles 61–65 EC [Articles 67–81 TFEU] as a basis for legislation. This has a pedigree in the EC Treaty which goes back only as far as the Treaty of Amsterdam, so the key date here is 1999. Both legal bases have been employed sporadically for the making of legislation affecting private law. But in neither case has anything of radical significance emerged.

Yet ‘EU private law’ – most of all ‘EU contract law’ (of a sort) – was already envisaged by the Treaty of Rome when it came into force in 1958. EU competition law intimately affects private law, for Article 81 EC [Article 101 TFEU] requires that contracts which fall foul of its demands be treated as void. The Treaty rules governing free movement affect private law insofar as they have been interpreted as capable of direct application to the activities of private parties – this is especially true of those concerning the free movement of persons (Bosman (Case C-415/93); Angonese (Case C-281/98)). Also gender equality rules (Defrenne v. SABENA (Case C-43/75)) and, more recently, the wider equality rules covering, inter alia, race and sexual orientation have an important impact on private relations. There is even a general principle of EU law prohibiting discrimination on grounds of age which is capable of application in cases involving exclusively private parties (Mangold (Case C-144/04)).

European private law and European legal language(s)

Whenever a new political entity with legislative powers is set up, this entity will need some linguistic means for formulating its norms. The European Community and its predecessors are no exception in this respect. Making European private law raises a number of problems concerning the language(s) in which European law must be expressed, its terminology and the style of legislative drafting to be adopted. And, as all norms are put into practice when they are applied to a given case, the interpretation and construction of European law are part and parcel of the same set of problems. This chapter provides a short survey and critical discussion of how these problems have been addressed for European private law as developed in the context of the European Community. Within that context, one could argue, on the one hand, that the continental European divide between public and private law is not entirely suited to capturing the spirit and the reality of European law, as the regulatory competence of the EU transcends that classical distinction in many ways. On the other hand, the issue of language and terminology in European private law requires some treatment simply because in the recent decades EU law has regulated subjects that in many European countries form part of ‘private law’, such as the laws on natural and legal persons, contracts, torts, property, family and succession. As a consequence, these areas of law can no longer be considered as belonging exclusively to the law of the Member States. They have gained a European dimension. What makes this so interesting and challenging in the present context is the fact that the particularly rich and, in many ways, unique sets of terminology that the legal systems of Member States have developed for private law had little equivalence in the terminological acquis communautaire at the time when the EU embarked on a large-scale regulation of issues belonging to private law.

Introduction

Directives have been the main legislative instrument used by the EU when acting in areas affecting private law. Directives are addressed to the Member States and leave to them the choice as to the form and method of achieving the end established by the directive (Article 249(3) EC [Article 288(3) TFEU]). The use of directives invariably entails a complex interaction between different actors at national and Union level because, unlike regulations, directives do not, generally speaking, have direct effect. To have direct effect they require transposition into national law; and even where certain provisions of a given directive have been held to be capable of having direct effect, in the field of private law this will be of little assistance to claimants, given the traditional position that directives do not have horizontal direct effect (that is, against other private parties). Directives offer some clear advantages in achieving their goals, but also suffer from certain defects: both sides of this equation are due to the nature of directives and the roles that they provide for the EU and national legislators, and the EU and national courts. First, we will discuss these matters in general, before considering the different types of harmonisation of private law sought through directives and then conclude with a discussion of the practical implementation and enforcement of such directives in the EU.

Introduction

Caveat emptor – buyer beware! and pacta sunt servanda – contracts are binding once formed. These were the classical paradigms of contract law. The underlying assumptions were that contracting parties are, in principle, on an equal footing, and that each party is able to collect necessary information and then negotiate a favourable bargain. In fact, this classical idea of contract law has long ceased to reflect reality. For many reasons, including technical and societal development, information asymmetries have come to exist between the traders of goods and services and their customers. These are particularly striking where traders contract with consumers, but they can also exist in commercial relationships. As a consequence, the customer is at risk of making an uninformed and, therefore, unfavourable decision, and it is for the law to decide whether that risk could be reduced. The tool to reduce the risk is to place pre-contractual information obligations on the contracting partner who has, or is deemed to have, superior knowledge, due to being specialised in the particular field of business, in order to restore the balance of power in contracting. The functioning of this tool presupposes that the customer is ‘informable’, that is, that he or she is able to digest information and is on a par with the trader afterwards.

While information obligations are aimed at ensuring that contracts are, under normal circumstances, the result of informed decision-making processes, withdrawal rights offer the contracting partner an additional period of reflection after the conclusion of the contract. In other words, without necessarily considering the doctrinal fit, they render contracts binding only after the withdrawal period has expired, and thus operate against the principle of pacta sunt servanda. Obviously, withdrawal rights are not the rule but the exception, and they have been introduced to deal with situations in which the decision-making process of one party, usually a consumer, is regarded as incomplete at the time that the consumer has concluded the contract. The reasons are manifold, and they range from situations in which the consumer was surprised by the trader, or put under psychological pressure, or where the consumer could not have full information about a product (for example, Internet sales), to the purchase of particularly complicated and complex services (for example, financial services; see Chapter 23).

Introduction

‘European’ contract law comes in two forms: the ‘hard’ law comprising the regulations and the directives that Member States are required to implement, the so-called acquis communautaire; and the ‘soft’ law in the form of sets of ‘principles’, or restatements of the rules that the compilers think are, or should become, common to the various laws of contract within the EU. These are described as ‘soft’ law because they have no legal force; but, as we will see, they can be used in various ways by contracting parties, judges or arbitrators and legislators. To date these restatements have been academic products with no official status, just one output of the projects examining the extent to which the European laws of contract have anything in common. However, if the European Commission’s plan for a Common Frame of Reference (CFR) is implemented, it will constitute a semi-official ‘soft-law’ instrument.

‘Restatements’ of contract law

Soft law statements of principles of contract law are not just a European phenomenon. In 1980 the International Institute for the Unification of Private Law (UNIDROIT) began work on the Principles of International Commercial Contracts. These are aimed at encouraging international trade between parties in different countries with different laws of contract: rather than having to agree to the contract being governed by the law of one party, or by the law of some third country, they can agree to these ‘neutral’, ‘international’ principles. Similarly, the principles may be applied by a court or an arbitrator if the parties have agreed that their contract should be governed by ‘generally accepted principles’ or the like, without specifying in detail what those principles are. This does not wholly displace national law. The contract must always be subject to a national law, either chosen by the parties or determined by the rules of private international law; but as in a business-to-business contract most laws allow considerable freedom of contract and apply few mandatory rules, the practical effect of ‘binding the principles into the contract’ will be that most disputes will be governed largely by the principles.

Arnold Schoenberg is so closely associated with the development of atonality and the twelve-tone system that his earlier tonal music, which is sizeable (Schoenberg was in his mid-thirties when he broke with tonality), tends to be considered primarily in relation to his later work. Even Schoenberg himself leaned toward this interpretation in his writings; and recent theoretical and analytical work has also seen the early work primarily in evolutionary terms, especially in relation to traditional tonality. This has produced valuable insights, but it has also downplayed the degree to which much of Schoenberg's tonal music maintains common-practice conventions.

The idea that Schoenberg's more advanced tonal compositions fundamentally undermine these conventions fits neatly with recent efforts to expand the general concept of tonality to include more varied and ambiguous types. But it has also fostered the development of analytical concepts that, however useful in themselves, do not necessarily apply to all chromatic music of the pre-atonal period. In this chapter I argue that one such concept, multitonality, leads to incorrect and exaggerated readings of some of Schoenberg's most original tonal compositions.

One of the leading figures in recent endeavors to enlarge the concept of tonality has been Robert Bailey, who in a number of articles has advanced the idea that late chromatic tonal works are no longer necessarily monotonal: rather than adhering to a single tonic, they are multitonal, having what he calls a “tonic complex” in which two or more keys compete for priority. Bailey's influence has been widespread and serves as the primary reference point for the most comprehensive publication to date delineating a theory of extended chromatic tonality.

Immediate postwar responses

From the early 1950s onwards, the response of “radical” young European composers to the Schoenberg legacy was highly diverse. On the one hand, in 1951, Pierre Boulez wrote a notorious polemical article announcing that “Schoenberg is Dead”; on the other, one of Luigi Nono's first works was the Variazioni canoniche sulla serie di l'opus 41 di Schoenberg (1950), and in 1955 he established direct family ties by marrying Schoenberg's daughter Nuria (they had met the previous year at Hans Rosbaud's premiere performance of Moses und Aron in Hamburg). For elder spokesmen of the postwar period such as Theodor W. Adorno, Schoenberg was the exemplary apostle of progress, as opposed to the “reactionary” Stravinsky. But precisely this kind of patriarchal espousal aroused suspicion and resistance among the young, to both the dodecaphonic and Neoclassical camps. Of the Second Viennese School, it was often the equally “patriarchal” Schoenberg who was rejected in favor of an emergent Webern mythology on the one hand (initially, the young “Darmstadt generation” was often characterized as post-Webernian), and a fascination with Berg's esoteric late-Romanticism on the other.

Significantly, none of these young Europeans had ever encountered Schoenberg in person. In principle, both Nono and Stockhausen should have done so: one of the main reasons for Stockhausen's going to the 1951 Darmstadt Summer Courses (at the instigation of Herbert Eimert) was that Schoenberg was scheduled to give the composition class, and Nono was there too. But Schoenberg was too ill to travel, and was replaced by Adorno: the latter’s hostile encounter with Stockhausen following a performance of the two middle movements of Karel Goeyvaerts’s Sonata for 2 Pianos (in which Stockhausen had been the second pianist) has often been recounted.

The pairing of the names of Richard Strauss (1864–1949) with Arnold Schoenberg is not one that comes readily to mind, certainly not for Schoenberg scholars in any event. Critical commentaries on their music rarely find much common ground when comparing the musical styles of these two diverse composers. Strauss's place in music history is often seen as one of the last viable vestiges of the so-called New German School, taking up the Lisztian-Wagnerian notion of Musik als Ausdruck (music as expression), where the poetic idea was the basis for the structure of a work, rather than basing this structure on pre-existing or otherwise inherited musical forms. In the first decade of the twentieth century, Strauss was considered at the very forefront of musical innovation, utilizing some of the most advanced compositional techniques of the day. His work is identified by brilliant orchestration, daring harmonic treatment, and expansive musical expression. Indeed at the very moment when it looked as if the degree of chromatic extension and tonal uncertainty would propel Strauss's music into the very next stage of atonal musical expression, he ultimately stopped short of a total break from tonality. While both the operas Salome (1905) and Elektra (1908) signaled a headlong rush from extreme chromatic instability into atonality, Der Rosenkavalier (1910) was much more conventional, not only in its formal operatic conception but in its tonal clarity, set against a libretto which recounts a bittersweet love story rather than a deeply intense psychological drama.

Behind the words of Schoenberg's 1946 essay “Heart and Brain in Music,” one can hear the aging composer railing against those who had branded him as a heartless intellectual. This particular criticism stung him acutely, even though he believed that it reflected more on the naivety of his critics than on a realistic interpretation of his works. For Schoenberg, “heart” and “brain” could not be separated in the compositional process, nor did he believe that the great composers of the past had considered them separately. While purporting to address the relative importance of inspiration and conscious construction in all manner of music, Schoenberg obviously sought to demonstrate in this essay that the perceived complexity of his own music – and especially that of his twelve-tone works – was congruent with long-standing musical traditions that valued the cerebral and the emotive equally.

To illustrate his thesis, Schoenberg cited musical examples in which passages produced via inspiration were difficult to differentiate from those resulting from extensive conscious effort. For example, as an illustration of a melody that listeners would most likely identify as emotive and “inspired,” Schoenberg provocatively cited the beginning of his Concerto for Piano and Orchestra, Op. 42, written four years earlier (1942). The irony, as Schoenberg undoubtedly intended, was that this conventionally lyrical theme occurred in a twelve-tone work (Example 17.1). The existence of such a theme, he implied, proved that the twelve-tone method, which had earned him “the title of constructionist, engineer, mathematician, etc., meaning that these compositions are produced exclusively by the brain without the slightest participation of something like a human heart,” was far from “heartless.”

Like countless refugees from Nazi Europe, Arnold Schoenberg spent an important part of his creative life in America (1933–51). Here he not only produced significant works, but also contributed greatly to America's musical culture. Yet, little research has been done on Schoenberg's American years and the reception of his work. Moreover, scholarly impressions of his American career tend to convey a variety of predominantly negative interpretations. Numerous Schoenberg commentators claim that he was an isolated figure, that his music was rarely performed and “could not fall on fertile ground,” and that his work was either misunderstood or ignored. In this chapter, I will challenge some of these perceptions and examine the question of American Schoenberg performances, along with aspects of the theoretical and compositional reception of his work in America.

Schoenberg performances and press reactions

The common view that Schoenberg's music was “practically not performed” in America is a myth inviting scrutiny. It partly grew out of Schoenberg's own worries about the dissemination of his music. He was troubled by the lean years of the Great Depression and World War II, when the arts saw major cutbacks, and was concerned about the conservatism predominating musical life in America. Yet his anxiety might have been prompted also by the feeling of what his fellow émigré Ernst Krenek called the “‘echolessness’ of the vast American expanses” – a notion implying that artists, for lack of feedback, were unaware of the full scope of their work's reception.

Schoenberg's opera Moses und Aron dramatizes – along philosophical, theological, and psychological lines – the predicament of the prophet, who grasps the essential unrepresentability (Unvorstellbarkeit) of the Divine, but cannot communicate an understanding that supersedes language and concepts. Although Schoenberg may resemble his protagonist Moses in some respects, the opera cannot be reduced to an allegory on the modern artist's intractable position. Rather, it examines the human condition from multiple perspectives, by exploring the distinct spiritual and psychological experiences of Moses, Aron, and the Jewish Volk, through their diverse capacities for awareness, insight, expression, and belief. The opera is fundamentally concerned with the limits of perception and knowledge, and with the potential for human spirit and intellect (Geist) to supersede those limits. The music's fabric of sound, more than the events portrayed or the ideas articulated by the words, conveys the experience and import of those epistemological limits.

In his book Metaphysical Song, Gary Tomlinson elucidates how opera has always echoed contemporaneous systems of epistemology and metaphysics, using the sonorous presence of the human voice to point toward the supersensible realm – as each philosophical (and operatic) age conceived it. The philosophical ground for modern opera is given by Kantian epistemology, in which human intuition and thought are fundamentally limited to immanent and sensible phenomena, and cannot access the transcendental realm of noumena.

Schoenberg found his artistic voice largely through the composition of lieder or art songs, which also mark important nodal points in his creative development. (See Table 2.1 for an overview of his lieder.) Close to thirty songs, all published posthumously, survive from Schoenberg's formative years through about 1900. They show him grappling with basic issues of structure and expression in an idiom that owes much to Schumann and Brahms, and something to Hugo Wolf. Of his first eight published opuses, composed between 1898 and 1905, five consist of lieder (Opp. 1, 2, 3, 6, and 8, the latter for orchestra). In this period Schoenberg also completed most of Gurrelieder, initially a song cycle with piano that evolved into the colossal cantata marking the climax of his tonal period.

Across these works we can trace a growing command of a Wagnerian and post-Wagnerian musico-poetic rhetoric. The cabaret songs or Brettllieder from 1901 hone a more popular, satiric tone that was to play a role in Schoenberg's later works, especially Pierrot lunaire. In the songs based in the poetry of Stefan George from 1907 to 1908, including the cycle The Book of the Hanging Gardens, Op. 15, Schoenberg plunges beyond the limits of conventional tonality and form. The Orchestral Songs, Op. 22, of 1913–16, mark the end of Schoenberg's free atonal period. The Three Songs, Op. 48, the only ones to use the twelve-tone method, are Schoenberg's very last compositions before he left Germany in the spring of 1933.

Collaboration, according to current English-language dictionaries, can mean to work in conjunction with others on literary, artistic, or scientific works: in 1940, however, it also became the label for a treacherous collusion with an enemy and, in particular, with the Nazis. Over the next sixty years the boundaries between these dual meanings – at once laudable and reprehensible; creative and destructive – became tangled and fused. For instance, our governments collaborate in bringing international criminals to justice as well as in occupying other nations' sovereign territory: in other words, “collaboration” is not a pure term. Yet even before 1940 the reality of artistic collaborations had become tainted and untenable for many, especially in Germany and Austria. Within a year of coming to power in January 1933, the National Socialists passed civil service laws that banned membership of the Reich Chamber of Culture to those who “did not possess the necessary reliability (Zuverlässigkeit) and aptitude (Eignung) for the practice of [their] activity.” When racial laws were passed soon after, and it became clear that at least 75 percent Aryan ancestry was an essential criterion for “reliability,” many artists – Aryans and Jews alike – attempted to distance themselves from their artistic collaborators who were now, by law, considered racially and artistically “alien,” and who therefore were also deemed to be unreliable and inept. The effect, as Schoenberg explained in a speech that he gave in 1935, little more than a year after leaving Berlin via Paris for a new life in America, was that Jews, “deprived of their racial self-confidence, doubted a Jew's creative capacity more than the Aryans did.”