Innovating Private Law: On Law and Technology (Pavia, 8 February)

On 8 February I had the pleasure to accompany Jan Smits for a visit to Pavia, where we gave a presentation titled ‘Innovating Private Law: On Law and Technology’, on the third day of the Innovating Legal Studies and Practice Winter School 2017.

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Caroline Cauffman at the European Consumer Summit 2016

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This year’s Summit is entirely dedicated to the fitness check of EU consumer and marketing law in the framework of Regulatory Fitness and Performance Programme (REFIT). ‘Fitness Check’ is a comprehensive policy evaluation aimed at assessing whether the regulatory framework for a particular policy sector is ‘fit for purpose’.

Consumer policy represents one of the most significate achievements of EU single market and makes a tangible difference in the lives of the European citizens. EU consumer and marketing law guarantees a high level of consumer protection and facilitates cross-border trade in goods and services.

The Fitness Check’s objective is to evaluate the functioning of the existing rules and to identify the needs for modernisation, so that EU citizens continue to benefit of a high level of consumer protection and at the same time economic operators, especially SMEs have a clear and fair level-playing field.

During the Summit, we will discuss in particular issues around consumer information requirements, the fairness of commercial practices and of contractual terms and ways to enhance the effectiveness of the injunction procedure. Representatives of national authorities, European institutions, consumer organisations, businesses as well as academics will be invited to contribute to the discussions, which will feed into the Commission’s examination. A number of prominent speakers have already confirmed participation.

Over the years, the European Consumer Summit has become a valuable occasion to increase awareness concerning consumer policy and a key tool to mainstream consumer interests in key EU policies.

European Commission
Directorate General for Justice & Consumers

The European Consumer Summit 2016 highlighted the need for better enforcement of the EU consumer protection rules. The results of the workshop that aimed at formulating concrete proposals for enhancing the effectiveness of the injunctions procedure were presented by our own Caroline Cauffman: https://webcast.ec.europa.eu/european-consumer-summit# (as of 16:13).

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‘The Prism Effect’ of European Jurisdictions (Al. I. Cuza University, Iasi, Romania, 21 October 2016)

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On 21 October 2016, the Robertianum Private Law Center at the Alexandru Ioan Cuza University (Iasi, Romania) will be holding its national conference on ‘The Prism Effect’ of European Jurisdictions. The theme of the conference reflects the role of the European judge in the interpretation of the law, as well as the different methodologies applied by the European judge in the process.

Mihai Sandru and Catalina Goanta will present, also on behalf of their collaborator Dragos Calin, a preliminary research framework for the study of unfair contract terms in Romanian law. This project builds on the existing expertise of the Romanian Association of Law and European Affairs together with the Judge Forum Association Romania as well as The Center for European Law Studies of the Romanian Academy. Within the ambit of this collaboration, a lot of effort has already been dedicated to the mapping of preliminary questions sent by Romanian national judges to the Court of Justice (here you can find an overview of these questions – Romanian only).

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Alternative Approaches to Legal Convergence: A Round Table

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The European Union endorses a harmonisation policy that is deemed to result in legal convergence. Whether in the field of European consumer protection or beyond, the European legislator claims that legal fragmentation and diversity are not conducive to the strengthening of the internal market. Over the course of the last 30 years this has led to a long list of directives of in which varying harmonisation measures are proposed, ranging from minimum harmonisation to ‘targeted full harmonisation’ with the directives on Unfair Commercial Practices and Consumer Rights. Also the proposals of December 2015 on conformity and contractual remedies in distance sales contracts and in contracts for the supply of digital contents aim for maximum harmonisation.

Despite the long history of European harmonisation in the area of private law, it is striking to see that so far very little work is done on the extent to which harmonisation measures actually lead to more convergence among the member states’ national laws. Empirical and quantitative analysis of the extent of convergence is largely missing in the current academic and policy-oriented debate.

This MEPLI-HiiL Round Table conference takes up this challenge. The question central to the conference is how European harmonisation influences the convergence of laws and how current methods of harmonisation must therefore be assessed. To this end, four main approaches to the understanding of legal convergence will be explored: doctrinal, self-regulatory, numerical and empirical.

Participants: Bram Akkermans, Anna Beckers, Caroline Cauffman, Gijs van Dijck, Catalina Goanta, Mark Kawakami, Hans Schulte-Nölke, Mathias Siems, Jan Smits

 

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New book: Mateja Durovic on Unfair Commercial Practices and Contract Law

 

In 2005 the continuous quest of the European legislator to protect the consumer on the European internal market resulted in EU Directive 2005/29 on Unfair Commercial Practices (UCPD). At the time it was issued, the UCPD was special because of the fact that it offers maximum-harmonisation and because of its broad scope. It essentially prohibits any unfair commercial practice that infringes upon the economic interests of a consumer. To this end it adopts a complicated three-step mechanism to test the unfairness of a commercial practice. A point of uncertainty, however, has always been how the UCPD relates to the many other EU-directives in the field of contract law. A recent book published by Mateja Durovic is the first to systematically examine the ambiguous relationship between the directive and contract law. In four substantive chapters she examines the notion of the average consumer, the duty to trade fairly, the duty of information and remedies. This study thus provides an admirable and clearly written account of how one directive, and its interpretation by the Court of Justice, influence the national laws of the member states.

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Gotta Catch ’em All: Dubious Clauses in the Pokémon Go Terms of Service

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This year in July, Pokémon GO has unleashed and the world will never be the same. The internet is now exploding with proof of the irrationality this app has been nurturing among its avid users (see for instance how people injured themselves by falling off cliffs or getting shot at; how South Koreeans discovered a Pokémon gym in the demilitarized zone and flocked there to play the game; or the human stampedes in American parks where people teamed up to find some rare Pokémon).

All in all, this game as well as people’s reactions to it are all pretty silly. Spotting teams of young adults on the streets of Chicago and seeing how immersed they are in the augmented reality game is without a doubt a new level of disturbing (and I am myself a big gaming fan).

However, what is most definitely not silly is how behind this surging new fad there is an entire web of legal rules users will most likely never read or become aware of. [1] Literature suggests that even when companies use boilerplates, they might not have a negative impact on consumers, [2] but I would like to analyse this topic from a different angle.

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