To speed up the debate on the future legislative proposal on European contract law - announced by the European Commission for this autumn - the Polish EU Presidency placed the subject on the agenda of the informal Justice and Home Affairs Council, on 19 July in Sopot, Poland. Warsaw argued for an optional legal arrangement governing cross-border online transactions. Based on the finding that 60% of transactions are not concluded in the EU because of the existence of different national legislations, the Commission has been studying the issue for over a year. The idea is nonetheless encountering resistance by certain member states, which are concerned about the legislative harmonisation that may result.
The European Commission published, in July 2010, a green paper in which its suggested ways of improving the consistency of European contract law, in particular: a recommendation for the gradual and voluntary adoption of a European instrument by member states; a directive for harmonisation of national laws, developed on the basis of common minimum standards; a regulation creating an optional instrument, namely an alternative legal arrangement that would be adopted in all the countries but that could be freely chosen by the parties to the contract; or a regulation creating a European contract law to replace national laws. In its response to the green paper, the European Parliament called, on 9 June, for an optional instrument, in the form of an EU regulation, leaving parties free to choose or not this alternative to national legislation or international law.
Rather than harmonising different national legal rules, Warsaw also recommends a "28th legal arrangement" (also referred to as the "blue button") that would operate in parallel with the 27 national systems. It would be optional, ie it would regulate the terms of sale over the internet only if the sites and consumers concerned choose to use it. The system would enable consumers wishing to conclude a cross-border transaction to choose either the laws of their home country or the EU rules as the basis for the contract (and consequently as the legislative basis for potential disputes). The rules would cover the form of the contract, its terms and conditions, as well as guarantees.
According to a diplomatic source who attended the meetings, five states (France, the UK, Austria, the Czech Republic and Finland) reacted cautiously to this Polish initiative. They argued that such a system could weaken the position of consumers in states where buyers' rights are highly developed. One diplomat commented: "The fundamental question raised during the meeting can be summed up as follows: How will consumers know which set of rules - European or national - is more advantageous for them? Companies, on the other hand, have access to lawyers who can weigh the advantages and disadvantages of each".
Poland's Justice Minister Krzysztof Kwiatkowski replied that "consumers' number one right is to consume freely". Small member states - among them Luxembourg - with limited access to certain online sites support such a European system.
Germany's position is more qualified: the minister raised the question of the added value of this idea, which could encounter resistance in the national parliament.
Justice Commissioner Viviane Redding strongly supports the Polish view: "This is a very relevant proposal for tearing down a barrier to the single market. Because of the uncertainty that results from the different national legislations, sellers lose market shares and consumers lose a lot of buying opportunities," she said. Reding added that the Commission would publish its proposals for EU rules for online contracts next autumn, after which the member states will have to work out a compromise.
Domestic violence
Poland's Justice Minister Krzysztof Kwiatkowski told the informal meeting of ministers that the Polish Presidency was setting the goal of adopting a large part of the European victim protection plan (formulated by the Commission last May), namely the cross-border protection of victims of domestic violence.
"I am convinced that this document will be adopted under the Polish Presidency," the minister said optimistically after the meeting. A victim of domestic violence could be protected from the perpetrator wherever she may reside in the EU.
This subject was originally one of the priorities of the Spanish EU Council Presidency in the first half of 2010. It created considerable tension between the Spanish government and Justice Commissioner Viviane Redding, who wished to preserve her right of initiative. The Commission's proposals, being negotiated in Council, aim to introduce a directive on "minimum standards" of protection of victims in national judicial systems, and a regulation establishing a restraining order to protect victims across EU member states.
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