Introduction: the development of a consumer policy

In 1975 the European Council accepted the first Consumer Policy Programme. As was mentioned in the introduction to a previous book in this series, European consumer law was justified as being a measure to improve the quality of the life of the peoples of the Member States of (then) the European Economic Community. According to the 1975 Consumer Policy Programme the consumer was entitled, among other things, to protection of his economic interests and to redress. With regard to the protection of the consumer's economic interests, it was noted that the consumer needed to be protected against the abuse of power by the seller, in particular against one-sided standard contracts, against the unfair exclusion of essential rights in contracts and harsh conditions of credit, against demands for payment for unsolicited goods and high-pressure selling methods, as well as against damage to his economic interests caused by defective products or unsatisfactory services. Moreover, the presentation, advertising and promotion of goods and services, including financial services, should not be designed to mislead, either directly or indirectly, the person to whom they are offered or by whom they have been requested. Information provided by a producer, seller or service provider should be accurate, and the consumer should be offered an adequate choice between different goods available to him. As regards the right of redress, the European Commission stated that if damage or injury resulted from defective goods or unsatisfactory services, the consumer should receive advice and help in order to file complaints, and that swift, effective and inexpensive procedures were needed in order to allow the consumer proper redress. The right of redress mentioned in the 1975 Consumer Policy Programme therefore reflects what is more commonly referred to as the matter of access to justice. Therefore, the consumer policy program in this respect was justified by the notion that consumers lack equal bargaining power and are entitled to bring their claims in front of a court or tribunal.

From 1975 onwards, consumer policy and consumer protection measures have been on the political agenda. Until the 1992 Maastricht Treaty came into force, consumer policy measures could only be taken with a view to the improvement of the internal market, as there was no other specific legal basis that could be relied on.

1. The purpose of this chapter is to assess possible options for the further harmonisation of rules on business-to-business practices. Whereas Directive 2005/29 ('UCPD’) protects consumers against unfair, misleading and aggressive B2C practices, Directive 2006/114/ EC ('MCAD’) protects businesses against misleading B2B advertising. In the first section of this chapter, a critical analysis of this ‘dualistic’ approach underlying the current European law of unfair commercial practices will be presented. In the second section, the Commission's plan to maintain the dualistic approach through a minor revision of the MCAD will be critically assessed. It will be argued that the best way forward would be to amend the scope of the UCPD so as to cover B2C/B2B practices directly connected with the promotion of products. In the third section, the broader issue of the need and desirability of harmonisation of rules concerning unfair business-to-business trading practices will be dealt with.

The current European law on unfair commercial practices

UCPD

2. The UCPD is a maximum harmonisation directive covering, pursuant to Article 3(1), all ‘business-to-consumer commercial practices (…) before, during and after a commercial transaction in relation to a product.’ The UCPD contains a particularly wide definition of'business-to-consumer commercial practices (hereinafter also reffered to as commercial practices)’: ‘any act, omission, course of conduct or representation, commercial communication including advertising and marketing, by a trader, directly connected with the promotion, sale or supply of a product to consumers’. The concept encompasses pre-existing EU concepts such as ‘advertising’ and ‘commercial communication’ and in essence covers all ‘commercial acts which clearly form part of an operator's commercial strategy and relate directly to the promotion thereof and its sales development.’ While the MCAD's definition of ‘advertising’ requires the making of a representation ‘in order to promote the supply of goods or services’, the UCPD does not require that a commercial practice aims at promoting the sale of goods or services. There must be a ‘direct connection with the promotion, sale or supply of a product’ meaning that there must be a direct link between the practice and the main economic modalities determining consumers’ transactional decisions (quality, price, after sale service, and so forth). The concepts of'promotion’, ‘sale’ and ‘supply’ simply denote the pre-contractual, contractual and post-contractual stage. The UCPD establishes what might be called a ‘cradle-to-grave regime’, covering commercial practices at the time of promotion, negotiation, conclusion, performance and enforcement of the contract.

1. P.CESL: realizing the internal market. In October 2011 the European Commission published its ‘Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law’ (hereinafter P.CESL). The aim of the Proposal is to create an optional contract law regime or 28th contract law system which the parties to a sales contract can opt for to apply to their contract instead of their national contract law system. Contrary to earlier initiatives taken by the Commission in the area of contract law, a limited number of specific rules that are to regulate commercial relationships in which one or more small and medium-sized enterprises (hereinafter SME) is involved, were incorporated in the P.CESL, alongside a more extensive body of rules which reflect the general law of obligations. These rules are inspired by and to a large extent copied from the Draft Common Frame of Reference (hereinafter DCFR). Underlying their insertion in the P.CESL is the belief that the existence of 27 different national sales regimes, and the transaction costs resulting from dealings with these various national laws, deters SMEs vested in one Member State from offering their goods and related services in another Member State.

2. P.CESL: protecting weaker companies? It is believed by some that the Commission is hereby creating some kind of ‘consumer law for professionals’, meaning that the Commission is attempting to protect SMEs contracting with large enterprises (hereinafter LEs) or with other, more powerful, SMEs. This seems surprising. The number of rules which are specifically applicable to B2B contracts is limited, far more limited than is the case of B2C contracts. Also, the Preamble to the P.CESL clearly states that its SME rules mainly aim at preserving demand in the internal market. Contractual protection of SMEs against other companies is not mentioned as an express aim of the proposal. It goes without saying that the mere establishment of the internal market does not suffice to protect the weaker party in a contractual relationship.

Introduction

Party autonomy is at the heart of contract law. Freedom of contract is, however, not unlimited. Very often, the law will provide protection for weaker parties, such as consumers, employees and tenants. Small and medium-sized enterprises (SMEs) are typically excluded from weaker party protection. However, when the European Commission published its Proposal for a Regulation on a Common European Sales Law (hereafter referred to as the Regulation on CESL), a new distinction was introduced between SMEs and other enterprises. The Regulation on CESL defines an SME in Article 7 as ‘a trader which (a) employs fewer than 250 persons; and (b) has an annual turnover not exceeding EUR 50 million or an annual balance sheet total not exceeding EUR 43 million’. This paper aims to discuss this distinction and its rationale. The definition of an SME in the proposed Regulation will be compared to those provisions of private law in the Netherlands which also contain quantitative criteria to determine whether an enterprise may be qualified as a small or a large enterprise. After an introduction to the background of the Regulation on CESL (section 2), this paper will introduce the definition of an SME in the Regulation on CESL (section 3). Secondly, the distinctions used in the private law of the Netherlands will be illustrated (section 4). Finally, a conclusion will be drawn concerning the feasibility of the definition of an SME in the Regulation on CESL.

Background of the Regulation on CESL

In 2001, the European Commission expressed its clear interest in European contract law and published a Communication on European Contract Law. This was the start of a process of extensive public consultation on the potential problems arising from the differences between the Member States’ contract laws. Between 2005 and 2009, a network of European contract law experts developed a Draft Common Frame of Reference on the basis of comparative law research. The European Commission examined several options as to how to ease cross-border transactions by making contract law more coherent within the European Union. In 2010, the European Commission decided to set up an Expert Group in the area of European contract law. The task of this group was to assist the Commission by means of a feasibility study and in making further progress in the development of a possible future European contract law instrument.

Introduction

On a policy level the European Union has concerned itself with small and medium-sized enterprises (SMEs) for some time now, as is witnessed by the Small Business Act for Europe and the “Think Small First” principle. In EU contract law, however, there exist practically no rules specifically concerned with SMEs. The proposed regulation on a Common European Sales Law (CESL) aims to change this. In only the first two pages of the Explanatory Memorandum, SMEs are mentioned seven times and Article 7(2) of the proposed Regulation determines that the CESL maybe used even in B2B situations if at least one party is an SME. Interestingly enough, however, SMEs are not mentioned once in Annex I, which contains the material rules of the CESL. To conclude that the CESL would not change anything for the position of SMEs, however, would be a big mistake.

The CESL includes a section on unfair terms in contracts between traders. Accordingly, the terms of a contract between an SME and another business can be tested on its unfairness under the CESL. It is the first time that would be the case in a EU context, as the Unfair Terms Directive only included an unfairness test for B2C contracts. The extension of an unfairness test to B2B situations is not uncontroversial.

In this chapter I will first argue that an extension of the unfairness test of contractual terms is justified in contracts where at least one party is an SME. Two paradigms lie at the basis of much of European contract law: the creation of a well-functioning internal market and the protection of weaker parties. These aim respectively at removing barriers to trade and the prevention of taking advantage of weaker parties. The Commission identifies these two rationales as underlying the CESL and captures both concerns when it says in its Explanatory Memorandum: ‘in their relations with larger companies, SMEs generally have to agree to apply the law of their business partner and bear the costs of finding out about the content of foreign law applicable to the contract.’ I will not discuss the (relative) merits of these - sometimes overlapping, sometimes conflicting - paradigms. Instead I will argue that both paradigms justify an unfair terms test for SMEs.

The importance of SMEs for the European Market

The concept of small and medium-sized enterprises (SMEs) has long been included in the European Union's lexicon. The importance of SMEs for the European Market is irrefutable. According to data from the EUROSTAT quoted by the European Economic and Social Committee, 99.8% of European businesses are SMEs, 92% of which are microenterprises with an average of two employees. The Committee points out that microenterprises export to a small number of Member States after analysing the market in depth, that the standard business model of a microenterprise does not aim to conclude cross-border contracts in 27 Member States, and that there are major barriers to cross-border transactions by SMEs.

SMEs and transaction costs

The Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law (the Proposal) pays special attention to SMEs, namely in its Explanatory Memorandum, where it acknowledges that ‘the costs resulting from dealings with various national laws are burdensome particularly for SMEs. In their relations with larger companies, SMEs generally have to agree to apply the law of their business partner and bear the costs of finding out about the content of the foreign law applicable to the contract and of complying with it. In contracts between SMEs, the need to negotiate the applicable law is a significant obstacle to cross-border trade. For both types of contracts (business-to-business and business-to-consumer) for SMEs, these additional transaction costs may even be disproportionate to the value of the transaction’. According to the second recital of the Proposal, the deterrent effect of contract-law-related barriers ‘is particularly strong for small and medium-sized enterprises (SME) for which the costs of entering multiple foreign markets are often particularly high in relation to their turnover. As a consequence, traders miss out on cost savings they could achieve if it were possible to market goods and services on the basis of one uniform contract law for all their cross-border transactions and, in the online environment, one single web-site’. Finally, recital 7 states that ‘the barriers to cross-border trade may jeopardise competition between SME and larger companies. In view of the significant impact of the transaction costs in relation to turnover, an SME is much more likely to refrain from entering a foreign market than a larger competitor’.

This chapter examines the memorialisation of women in a transitional society using commemoration of women through memorials of the most recent Northern Ireland ‘Troubles’ as a primary case study. In divided societies, such as Northern Ireland, memorialisation not only incorporates notions of mourning and symbolic reparation, but is intimately related to the partisan construction of communal political identities and the creation of narratives that seek variously to legitimate prior conflict and underwrite peace. Furthermore, it has been argued that representation and memory making associated strongly with ethno-national identities tends to squeeze out narratives and claims making based around gender. This chapter will interrogate these processes of commemoration and memory making along two axes; the description and conceptualisation of symbolic tropes and motifs depicting women; and the role and representation of women in memorial practice. It is also engaged with constructed hierarchies of victimhood and lionisation as projected by the physical memorials, which may meld notions of masculinity with a martialised femininity, and offer insights into processes of deliberate or indirect amnesia in the memorialisation of women in a divided society. A central argument will be that in contrast to many other regions, a fairly prolific and nuanced memorialisation of women has taken place in Northern Ireland, albeit within the compartmentalised sector of Irish Republican political or paramilitary activism. Processes of amnesia and exclusion however still apply in the representation of women who do not easily fit these roles.

This chapter will address the ideological values and social purposes behind the memory sites; the degree to which language and symbolism attached to the memory sites are traditional, innovative or problematic, and the ritual use of sites as a means of connecting audiences to their particular narratives. An overarching question will consider the degree to which memorialisation of this type aids or impinges processes of transitional justice in a divided society – specifically how it can help memorialisation engage with issues of gendered experience and the politicisation of the private sphere. There is a tension within this form of memorialisation – between the vernacularised representation of notions of rights, equality and political agency on one hand and the reproduction of a memorial template which traditionally privileges partisan, nationalistic and often militaristic forms.

In January 2012, the African Union Human Rights Memorial (AUHRM) was unveiled as a part of the new African Union (AU) headquarters in Addis Abba, Ethiopia. The memorial forms a part of the new AU precinct built at the site of a former prison, Alem Bekagn, which gained notoriety as a site of massacre and detention during the period of the Italian occupation in 1936, and the Red Terror period from 1977 to 1979. The AUHRM, initially built with the goal to commemorate the Ethiopian Red Terror, the Rwanda Genocide, Apartheid in South Africa, colonialism and the slave trade aims to, in the future, expand to include and acknowledge mass atrocities in other countries on the continent. At the inauguration of the memorial, Professor Andreas Esthete, Chairman of the Interim Board of the AUHRM, noted

The AUHRM is just one example of the increased role that memorialisation has begun to play in post-conflict societies. Not only does the AUHRM exemplify the increased political recognition of, and commitment to use, memorialisation as a means to recognise victims of mass atrocity at a regional level but it also highlights the increased role of memorials in broader transitional justice processes where memorialisation has come to fill in some of the gaps that cannot be fully addressed by formal transitional justice mechanisms such as prosecutions. While memorials have almost always been a part of the public landscape, the role of memorialisation as a symbol of recognition of suffering and a form of reparations for victims gained political and social capital following the Holocaust as the world attempted to come to terms with mass atrocity, the scale of which was never before seen in modern times.

Settler societies such as Australia, New Zealand and Canada are undergoing “profound renegotiations of their histories” and are increasingly acknowledging the violence, trauma and dispossession of colonisation. As part of this process, a new generation of state-sponsored public memorials marks genocidal actions such as the systemic removal of Aboriginal children from their families in 20th Century Australia (a group now known as the Stolen Generations). These contemporary settler colonial memorials reflect the global post-war rise of public memorials that acknowledge instances of trauma, genocide and state violence. They invert traditional nation-building monumental forms, aiming to be interactive rather than pedagogical, fragmented rather than unified and evolving rather than completed. Their abstract aesthetic reflects absence and seeks to make space for multiple perspectives. This chapter explores the political complexities of Australian settler colonial memorials and their relationship to these broader global processes of memorialisation and post-conflict transformation. In particular, it examines the official central state memorial complex in the national capital Canberra, named ‘Reconciliation Place’, which is intended to both mark and bring about a newly integrated post-colonial society.

Settler colonial memorialisation efforts are often understood in the framework of transitional justice or reconciliation, that is, as part of the political and social rebuilding which must come after divisive internal conflicts. Public, communal acknowledgement of the full ‘truth’ of traumatic events through memorialisation is now widely accepted as central to the establishment of a new peaceful and just order. Settler colonial memorials share many characteristics with these international post-conflict memorials: they seek to acknowledge the violence and injustice of the past in order to facilitate a new political beginning; they accept the culpability of state institutions in much of the violence; they seek to create a single space where both victims and perpetrators can come together to build a shared and unifying historical narrative. This involves an attempt to break down rigid conflict-based group identities (in the settler case, coloniser and colonised) and to build diverse but integrated new communities. In recent decades, Australia has taken up many of the tools of transitional justice – official apologies, truth commissions and memorialisation – and in doing so has consciously connected itself to the political narrative of post-conflict transformation.

In January 2011, a small delegation of Rwandans travelled to Germany to meet with representatives and curators of the most significant Holocaust memorial sites. The group, comprised of representatives of victim organisations, the Kigali Memorial Center, the Commission for the Fight against Genocide as well as peace initiatives, had ventured on this journey to learn about the German experience with remembrance and commemoration in order to draw lessons for their own memory work. For despite all differences, what both countries have in common is a past marked by extreme violence, by genocide. And both seek to redress the past by means of building or conserving physical structures as sites of memory: memorials.

This is by no means an isolated scenario. Since the 1960–70s, we can see a worldwide upsurge of memorial projects that address the violent histories of recent wars, genocides and systematic human rights abuses. They include the Tuol Sleng Genocide Museum in Cambodia, the Escuela de Mecánica de la Armada (ESMA) in Argentina, the Robben Island Museum in South Africa, as well as many others some of which shall be investigated more closely in the context of this volume. Such interventions often employ a common architectural language and are informed by a set of political and ethical claims in regard to what role commemoration can and/or should play after large-scale violence: providing public sites of mourning, putting past wrongs right, holding perpetrators accountable, vindicating the dignity of victims-survivors and contributing to reconciliation.

Dealing with the legacy of the past is subject to transitional justice, a concept which has gained in popularity since it was first coined in the 1990s and which refers to ways and means of providing justice for past abuses in times of transition from violence to, at its most basic, peaceful coexistence. Conventionally, it incorporates a number of mechanisms such as truth commissions, tribunals, lustrations, reparations and more recently also memory work – including memorials – in order to deal with past injustices. It is based onthe assumption that any form of transition from violence to peaceful coexistence requires the disclosure of past events and the establishment of some form of justice for the victims in particular and the society in general.

When visiting Santiago de Chile in 2010, I encountered a new dimension to memorialisation efforts related to the military dictatorship: photo books of monuments and memorials. In a café close to La Moneda, an interviewee pointed out to me that a book had been published on monuments and memorials in Chile. I thought she was referring to a book published in 2007 by the Ministry of National Property, Memoriales en Chile. Homenajes a las Víctimas de Violaciones de Derechos Humanos. On the contrary, she was referring to a book from the Ministry of Housing and Urbanism published in October 2009, entitled Memorias de la Cuidad. Registro de Memoriales de Detenidos Desaparecidos y Ejecutados Políticos, Región Metropolitana; a full colour, hard back publication, full of pictures and explanatory texts. A few days later a friend offered to show me “a new book on monuments and memorials”. To my surprise she presented yet another book, this time published in January 2010 by the Program of Human Rights of the Ministry of Interior, entitled Geografía de la Memoria; also a full colour hardback with images of memorials.

The books differ somewhat in approach and focus, yet their introductions all refer to a culture of human rights, to the dictum ‘never again’, to democracy and a just society, and crucially, to the importance of memory in each of these. The series of images depict monuments and memorials in Chile, especially in its capital Santiago – some well-known and used as active memory places, others less known and half-forgotten. These monuments and memorials were created at different points in time by a wide variety of actors, and invite to reflect on the dynamics behind the memory landscape of Santiago: who undertakes these memory initiatives? What narratives do they want to convey? What are their struggles? Or more generally: how should we understand processes of memorialisation?

The comments in the epigraph which refer to the Berlin-Hohenschönhausen Memorial to remember state repression during the German Democratic Republic (GDR) could not be more graphic. Reflecting the diverse interpretations and perceptions of the site they point to a colourful memoryscape in Germany regarding the former socialist state. Yet how does the way the memorial space is conceptualised and presented relate to the wider social dynamics of dealing with the past? This is the subject of the present chapter.

The former Stasi remand prison in the north-eastern area of Berlin Hohenschönhausen was turned into a memorial in 1994 and is now a substantial part of the city's memoryscape as well as a popular destination for school classes, leisure tourists and local dwellers. In 2010, the annual number of visitors was 332,000 and in October 2010 the total number of visitors reached two million. Unsurprisingly, numbers rocketed after the release of the Academy Award winning film ‘The Lives of Others’ in which the prison features prominently, as well as after an incident with former Stasi officers in 2006 (see below), a fact which only confirms the view that sites are particularly interesting if they were notorious for death and pain, if the regime that perpetrated the abuses is considered to be unjust, and if the victims of the cruelties were likeable. This has also been referred to as Dark Tourism.

Memorials have become an important aspect of transitional justice discourses and practise. In addition to the immediate aspirations of serving as symbolic reparation – acknowledging guilt and responsibility, and vindicating the dignity of victims – debates around memorials serve as seismographs for assessing tendencies within societies regarding how the past is being remembered. In this sense, they are not merely measures to promote transitional justice in and of itself, but they also provide insights into the dynamics of dealing with the past in a society.

Therefore, this chapter pursues two objectives: first, it seeks to analyse the historical narrative about the Stasi as evoked and endorsed by the memorial Hohenschönhausen; second, and closely related, it situates this narrative in the wider social context of dealing with the GDR in current day Germany.