The Department of Civil and Private International Law
Faculty of Law and Administration
University of Silesia, Katowice, Poland

International conference organised by the University of Silesia, the Polish Ministry of Justice, European Centre Natolin and Fundacja Facultas Iuridica

under the patronage of the Minister of Foreign Affairs of the Republic of Poland

Recent Developments in European Private Law
The Influence of European Consumer Law on National Legal Systems

23-24 September 2010

On 23-24 September 2010 a conference was held at the University of Silesia. It adressed the process of harmonization of private law in Europe, in particular the EU consumer law. The primary goal of the conference was to discuss the impact of European consumer legislation on the national legal systems of Member States. The changes in the Polish law served as an example to that effect, since the conference took place in parallel to the ongoing work on a draft of a new Civil Code in Poland, likely to be profoundly influenced by the European consumer law.
The participants included representatives of the European Parliament, the European Commission, members of the Expert Group established by the European Commission to draft the Common Frame of Reference, as well as the academics and practitioners specializing in private law. The invited experts presented the ideas concerning the future of private law harmonisation including the so called ‘optional instrument’. The discussion was exceptionally interesting. Itwas placed in the context of the recent developments in the area of private law at the EU level, i.e. the establishment of the Expert Group and the publication of Communication of the Commission on the future of contract law in the EU (Green Paper from the Commission on policy options for progress towards a European Contract Law for consumers and businesses - COM(2010)348 final). The Polish context is increasingly relevant, since Polish Government expects to make a progress in this field during upcoming Polish Presidency in the second half of 2011.
The conference has proven that there were probably more questions left unsettled than answers given regarding the future of the European private law. Some of the key issues identified by the participants in reference to the Commission’s Green Book included questions such as: what are the options for developing private law in EU, what are the pros and cons of the possible options, what are the limits of harmonization, and finally how close to a European civil code could the EU ever get? These were introduced during the first session of the conference by professor Christian von Bar and remained the core axes of the discussion throughout the two days of the meeting in Katowice. The further stimulating questions as to the future of European private law were posed by the Polish Minister of Justice, Mr Krzysztof Kwiatkowski. He observed that there are certain elements which render the harmonization of private law in Europe very controversial. These include the already long lasting discourse on this topic at the EU level, the disagreement as to the real aim of the European measure, the manner in which the work has been carried out, the complexity of the subject matter, the variety of the possible options to choose from and finally the potential huge practical impact in all of the Member States. Irrespective of the existing difficulties, Mr Kwiatkowski has declared support of the Polish government towards further development of European private law, particularly in light of the upcoming Polish EU presidency in 2011. He underlined however that Polish government will back up only an option which is politically realistic and has a significant likelihood of success.
A representative of the European Commission, Mr Michael Shotter said that a new unit has been founded within the Commission’s Justice Department. It shows a positive shift in the priorities of the EU. Mr Shotter underlined also an opinion shared by many that a lot of valuable work has been done in the process of harmonization of European law. It would be important to benefit from it. This does not however envisage that the national contract laws would be replaced by an EU instrument. It is rather an idea of working from the bottom up, to make a practical use of what was done and serve businesses and consumers throughout Europe. Thus one of the valuable options is also the toolbox, which could serve as an institutional tool for the EU institutions and a recommendation for the Member States legislators. On the other hand MEP Tadeusz Zwiefka and later Robert Bray of the EP Secretariat General gave comments from the perspective of that institution. They agreed as to a rather favorable attitude of the Parliament towards the prospects of harmonization of private law in Europe.
Professor Hugh Beale reminded that the existing instruments (PECL, DCFR) are already in use by the courts. He expressed a view that it is important that the envisaged documents set their own definitions of legal concepts which would have autonomous European meaning. Professor Beale took a position that the optional instrument shall cover at least sales of goods and supply of services contracts. A question of whether the optional instrument should cover both B2B and B2C relationships was also discussed. A positive answer to this question seemed to dominate among the participants of the conference. The view was also generally shared that the small and medium enterprises might require certain special protection in the future instrument.
An important part of the conference was devoted to the relationship between the envisaged optional instrument and the conflict of laws. Ms Raquel Ferreira Correia reminded that in B2B contracts it is already possible for the parties to take advantage of the set of rules not forming part of any state law (e.g. PECL). However, it rarely happens in practice. The invention of the so called “blue button” was also discussed in certain presentations but the views differed as to whether this instrument can actually prove to be useful and effective. Moreover, it was pointed out by professor Schulte-Nölke that an important dilemma exists as to whether the new instrument should be applied under the regular private international law mechanism (and thus be applied with effects of a state law) or whether it would only be incorporated as a substantive part of the contract, subject to the control of the mandatory rules of the applicable national law. The relationship with regulations Rome I and Rome II was discussed and a question was identified as to how the gaps in the instrument would be filled in. Dirk Staudenmayer of the European Commission on the other hand pointed out at certain practical consequences of the mututal relationship between the optional instrument and article 6 of the Rome I Regulation.
The second day of the conference focused on the impact of EU consumer law on national legal systems, with a particular emphasis on the amendments envisaged in the Polish private law. The issue is particularly up to date in Poland, since the Civil Law Codification Committee has been working for some time now on the draft of a new Civil Code. This includes a revision of the consumer protection law. During the day, the academics and other members of the Committee analysed the problems arising from the implementation of the EU consumer legislation into a system of private law based on a civil code. The speakers concentrated on the problems relating to the differences between the structure of a national legal system based on a civil code, and the European consumer law based on directives. The possibility of using legal instruments such as the DCFR as a source of inspiration in overcoming the difficulties was also discussed. The international guests have made helpful comments and suggestions as to the possible future development of Polish private law.

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For further information please contact dr Monika Jagielska monika.jagielska@us.edu.pl