I want everything: the full harmonization of unfair commercial practices as seen in Citroën Belux NV v. Federatie voor Verzekerings- en Financiële Tussenpersonen (FvF))

On 18 July 2013, the Court of Justice of the European Union (CJEU) delivered its judgment in Citroën Belux NV v. Federatie voor Verzekerings- en Financiële Tussenpersonen (FvF)), a case surrounding Directive 2005/29/EC on unfair commercial practices (UCPD) and Art. 56 TFEU.

In 2010, car manufacturer Citroën initiated a campaign offering interested purchasers of a new car six months’ worth of free comprehensive car insurance. The Federation for Insurance and Financial Intermediaries (FvF) considered such offer to constitute a prohibited combined offer in the understanding of Belgian legislation; Art. 72 of the Law of 6 April on market practices and consumer protection (Wet van 6 april 2010 betreffende marktpraktijken en consumentenbescherming/Loi du 6 avril 2010 relative aux pratiques du marché et à la protection du consommateur) prohibits (with certain exceptions) any combined offer to the consumer which has at least one finance service component. The Rechtbank van koophandel te Brussel agreed with the Federation, and Citroën subsequently lodged an appeal with the Hof van beroep te Brussel. It was the latter Court that decided to submit a question to the CJEU for a preliminary ruling in relation to Article 3(9) UCPD:

“Must Article 3(9) of Directive 2005/29 be interpreted as precluding a provision, such as Article 72 [of the Law of 6 April 2010], which generally prohibits – save in the cases exhaustively listed by the statute – any combined offer to the consumer where at least one component is a financial service?”

The CJEU answered in the negative.

It was not the first time that the CJEU was analyzing combined offers. On several other occasions, including in 2009 in the VTB-VAB NV and Galatea joint cases, as well as in 2010 in Zentrale zur Bekämpfung unlauteren Wettbewerbs eV, the Court stated that the UCPD precludes national prohibitions of commercial offers whereby the availability of certain services is linked to the purchase of goods, since they were not listed in the Directive’s black list. Given the list is set in stone and can only be modified by modifying the Directive itself, Member States cannot add to it. Nevertheless, it was the first time when combined offers involved financial services, which are as such outside the boundaries of the process of fully harmonizing unfair commercial practices.

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Competition in International Sales Law – Perspectives on Choice

* Note: Programme updated as of 16 May 2012*

2012 is a significant year. It marks the 20th anniversary of the entry into force of the CISG, and the introduction of CESL. Placed within the context of other international and regional sales laws, one may say that those who shop in the market for laws are now spoilt for choice. But how is such choice to be exercised? Choice implies the selection of one instrument over the other, giving rise to notions of competition. It is in that sense important to understand how parties make such choices.

Choice in international sales law is in that respect the theme for MEPLI’s one-day roundtable conference scheduled for Friday 15 June 2012 and hosted at the Feestzaal of Maastricht Law Faculty.

This roundtable is divided into three panels, distinguished on the basis of perspective. Contributions in the first panel offer an institutional perspective on the choices available. A second panel focuses on competition between the instruments and how parties may be expected to choose. The third sheds some light on the similarities and differences between the instruments, suggesting criteria to evaluate these instruments, as well as views on what the best instrument is. Speakers are drawn from academia, legal practice, as well as commercial interests.

Attendance is free but do note that space is limited. You may register by Friday 8 June by email to Dr Gary Low (mepli@maastrichtuniversity.nl), and please include your full name, designation, and contact details. If you are subsequently unable to attend, please send an email to that effect to the same address.

The tentative programme is as follows:

Programme

1000 – 1025 Registration and coffee

1025 – 1030 Welcome address by Prof Jan Smits

Panel 1 – A view from the institutions

1030 – 1050 An arbitrator’s perspective, Prof Christina Ramberg (Stockholm)

1050 – 1110 The CESL on the European Law Market,  Prof Jan Smits (Maastricht)

1110 – 1130 A view from Uncitral, Mr Renaud Sorieul (UNCITRAL)

1130 – 1200 Discussion

1200 – 1330 Lunch

Panel 2 – How parties (ought to) choose

1330 – 1350 A psychology of choice of laws, Dr Gary Low (Maastricht)

1350 – 1410 Choice of jurisdiction, Prof Jan Dalhuisen (King’s College London)

1410 – 1430 A commercial perspective, Mr Eric Poelman (Philips CE)

1430 – 1500 Discussion

1500 – 1520  Coffee break

Panel 3 – Comparing choices

1520 – 1540 Formation/Incorporation, Dr Sonja Kruisinga (Utrecht)

1540 – 1600 interpretation of Contracts, Dr Nicole Kornet (Maastricht)

1600 – 1620 Remedies for Breach, Dr Olaf Meyer (Bremen)

1620 – 1650 Discussion

1650 – 1700 Closing remarks

1700 –             Reception

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Conference – Towards a Common European Sales Law

29 February 2012, Amsterdam.

Hot on the heels of ERA’s event in Trier, and our own in Brussels, the Centre for the Study of European Contract Law held its conference on the proposed Common European Sales Law (or CESL) in the plush surroundings of the Bethanien Klooster in Amsterdam. The conference proceedings were in Dutch, and aimed at stakeholders in the Dutch community. A glance at the participants list revealed who these stakeholders included: the usual suspects (i.e. academics), law firms and legal counsel, business interests and  consumer organisations. The judiciary sent representatives, as did the ministries of justice as well as economic affairs. An MP for VVD (the Dutch Liberals, a member of the ruling coalition) and the Netherlands Permanent Representation in Brussels also sent observers. Importantly, a member of DG Justice was also in the audience.

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The Global Challenge of International Sales Law

I just returned from a conference at the University of Florida devoted to Global Challenges of International Sales Law. The organiser of this conference was Larry DiMatteo from the UF Warrington College of Business Administration. He managed to bring together experts on the CISG from around the world, including many German and American colleagues. I enjoyed the conference very much, not only because of the excellent organisation and the great hospitality exposed to the participants, but also because of the substantive discussions. I am not an expert on the CISG, but my job was to talk about the ‘problems of uniforms laws.’ This meant that I could play the role of the contrarian. The feeling among most CISG experts is that the Convention is a huge success because of the 77 countries that ratified it. However, my own perspective for measuring success is the extent to which the CISG is in fact preferred by commercial parties over the applicability of some domestic law – and here I am skeptical.

There is one thing that struck me at the conference. This is that the circle of people writing about the CISG is usually not very much aware of the debate about European private law, and the other way around. This is a pity: in my view both discussions are about a similar question: do we need uniform laws and, if so, how should we put these into place? Perhaps the recent proposal of the European Commission for a Common European Sales law will bring both circles closer together. At the roundtable conference that MEPLI will organise on 9 December 2011, Nicole Kornet will in any event talk about the relationship netween the CISG and the proposed CESL.

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Roundtable on Common European Sales Law

On 11 October, the European Commission published a Proposal for a Common European Sales Law (CESL) (click here for an earlier post). The Maastricht European Private Law Institute (M-EPLI) is delighted to host a half-day round table on this initiative of such important that it is likely to shape the future of European private law. At stake at the conference is whether the ‘right’ choices have been made in the CESL – spanning issues of both form and substance.Views from academia, legal professional, consumer and commercial stakeholders will be presented. These include views from Prof Eric Clive (Edinburgh Law School and member of the Expert Group), Prof Giesela Ruhl (Friedrich-Schiller-Universitat Jena), Prof Evelyne Terryn (KU Leuven), Eurocommerce, BEUC, CCBE, the Belgian Association of Company Lawyers, DG Justice (the European Commission), as well as papers from M-EPLI residents.
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An Optional European Sales Law

11 October, Brussels – ‘Crisis’, quipped Viviane Reding, stressing talk of ‘the disintegration of Europe’ (though she might just as well have meant the euro). The Union needs to respond strongly – she urged – by stimulating trade, boosting income and creating jobs. It needs to restore Europe’s credibility and regain the confidence of its citizens.
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