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Saggi, Conferenze e Seminari 18. Reproduced with permission of Centro di studi e ricerche di diritto comparator e straniero, diretto da M.J. Bonell

Consumer Guarantees:
Towards a European Sale of Goods Act

Ewoud H. Hondius
Roma (January 1996)

  1. Introduction
  2. Constitutional Basis
  3. Towards a European Private Law?
  4. Harmonisation of Aspects of the Sale of Goods
  5. The Consumer Notion
  6. Non-Conformity
  7. Late Delivery
  8. Remedies
  9. Deadlines
  10. Guarantees
  11. After-Sales Service
  12. Conclusion

1. Introduction

Many of us nowadays are speaking and writing about a European private law. Especially in academic circles, this is at present a fashionable theme for conferences [1] and special courses.[2] The old comparative law seems to be given a new life. Some twenty years ago, the comparatist's life was that of an esoteric, utopian fellow, travelling third class and forsaking all luxury. Now, comparative law is becoming a glamorous subject. A subject in which business circles take an increasing interest. This is also due to the efforts of organisations such as Unidroit here in Rome and of one of its chief protagonists, Professor Bonell.

But there is more to come. Until recently, on the level of the European community there was very little private law regulation to point out. In the last decade, two important directives have paved the way for a European private law: the directives on product liability and on unfair contract terms. Now a third directive is in the course of being arrived at, [page 1] which once again touches an important subject for the private citizen. Perhaps it is even the single most important issue which citizens may encounter: that of delivery of defective goods. The sale of goods, it has been said, is the single most important contract, and delivery of defective goods is the single most important complication. A directive of this nature would therefore constitute a highly important subject.

The directive is still known under its former name: on consumer guarantees. This is somewhat misleading, not for southern European countries which are familiar with the notion of the 'garantie légale',[3] but for the Northern part of our continent.[4] There the word 'guarantee' is only used in connection with what the Green Paper calls the commercial guarantee. The latter is a subject which is indeed also covered by the directive, but the main part deals with the sale of goods without guarantee. A second part then deals with guarantees, and a third leg with after-sales service. Not only does the directive aim at providing European citizens with a minimum level of protection wherever they make their purchases within the European Union, it also has some interesting innovations which on the whole have been borrowed from the law of Member States.

When the directive will be published, it will not have come out of the blue. The unfair contract terms directive in its first draft already contained some provisions on guarantees.[5] These were then taken out, not because they were considered redundant or questionable, but rather because it was considered that the issue of consumer guarantees was in need of a more thorough approach. With this in mind, the European Commission prepared a Green Paper, which was widely distributed to [page 2] invite comments.[6] In her final year as a Commissioner, Madame Scrivener convened a major conference in Brussels with the Green Paper as one of the main subjects. At the Brussels conference, three groups were represented: consumers, producers and retailers. Consumers, not unexpectedly, came out in favour of a directive; producers, not unexpectedly either, came out against. But surprisingly, retailers were not against a directive. They expressed their opinion in the following words: we do not like it, but we see the time has become ripe fir a directive in this area.

With the support of two of the three parties concerned, the Commission's Directorate-General XXIV started to draft a text. This was in no way easy, and a Committee of experts was appointed to advise the Commission. I had the privilege of serving as a member of this commission [7] and I would like to tell something about my experiences. After a text had been prepared, DG XXIV's task was not yet finished. It first had to get the other DG's behind it, as well as the Legal Service. And now it still has the huge task of winning the approval of the Member States. Already one Member State, Germany, has publicly proclaimed that it will vote against a directive. Germany apparently was so annoyed with the draft, that it even instructed its two Commissioners to vote against the draft, something which it is not allowed to do at all.

2. Constitutional basis

The introduction of directives such as this one has not always been uncontroversial. At the time, the constitutionality of the directive on product liability was doubted by some politicians.[8] The Single Act [page 3] and especially the Treaty of Maastricht have put an end to such doubts. Article 129a of the EU Treaty now reads:

1. The Community shall contribute to the attainment of a high level of consumer protection through:
(a) measures adopted pursuant to Article 100a in the context of the completion of the internal market;
(b) specific action which supports and supplements the policy pursued by the Member States to protect the health, safety and economic interests of consumers and to provide adequate information to consumers (...).

But Maastricht has introduced a new theme: is civil law not something to be left to Member States under the principle of subsidiarity?[9] Article 3b of the EU Treaty now reads:

(...) In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community (...).

An interesting question is whether this subsidiarity requirement is merely a political issue, or whether it is a legal requirement.[10] Whatever may be its character, the subsidiarity issue does raise the question which arguments may be put forward in favour of community action and which against.

Two arguments may be advanced in favour of Community action. First, not only business interests but also consumers should be put in a position to profit from the common market. This is especially valid for [page 4] the 'active' consumer,[11] who at present hardly has any incentive to enter into cross-border purchases. Second, business interests too may profit from unification of domestic laws on the sale of goods. At present, because of consumer protection statutes in most Member States, they have to devise different sales conditions for the various jurisdiction with which they enter into contract. It would reduce costs and lead to more competition if these trade barriers were taken away.

There is also an argument against Community action. It has been expressed in the following words: 'What is the essence of Europe? The essence of Europe is its variety of cultures. What will happen if law is harmonised? The variety of law, and therefore Europe itself, will then be destroyed.'[12] Whatever may be the value of this argument where areas such family law are concerned, it does not convince with regard to technical questions such as the conformity principles and the concept of 'hidden defects'. Before exploring this issue more fully, it is time to present a brief view of the framework in which community legislation on the consumer sale of goods could fit.

3. Towards a European private law? [13]

There is now a serious debate developing as to the desirability and the feasibility of a European Civil Code. So far, the emphasis in the European Union has rather been on public law, but several of the prerequisites for a European civil law do already exist. The European Court of Justice has shown itself highly competent; it has brought into [page 5] operation really from scratch a European administrative law, which in turn has influenced the development of national law.[14] There is a European bar. What is lacking is consensus over the direction which this development should take. Should consensus not be arrived at as to the framework in which future directives in the area of civil law should find a place? Such framework may eventually be provided by a European Civil Code.

This issue raises several interesting questions. First, is codification of the law, more specifically of the civil or private law, a worthwhile idea? And second, is this feasible on a European level? As to the first question, protagonists of a European Code usually point to a resolution of the European Parliament.[15] There is no doubt that this is an interesting opinion. For a Dutch lawyer, the fact that the recent recodification of Dutch civil law also began with what seemed an innocuous parliamentary question springs to mind. Yet, resolutions of the European Parliament do not carry great weight, and not too much should be made of this particular resolution.

Ever since the famous debate between Thibaut and Savigny in early XIXth century Germany, the question has remained on the civil lawyer's agenda: to (re)codify the law or not. Germany eventually got its codification, after Belgium, France, Luxembourg, the Netherlands, Portugal and Spain had preceded it. Greece was still to come and then [page 6] Italy (1942), Portugal (1966), East Germany (1975) and the Netherlands (1992) recodified their civil law. The recent reform proposals in Germany only have a limited impact, but it should not be overlooked that in the shadow of large scale recodification, updating projects on a far smaller scale have brought most other codes in line with modern times. One therefore cannot really say that the codification idea is dead.

And what about the common law countries, one may object, what about Denmark? Are not the common law countries especially radically opposed to any codification whatsoever? It has indeed been argued that the adoption of a European Code is not possible for England.[16] Yet, one should not forget that as recently as the 1950's, with the establishment of its Law Commissions, the United Kingdom did contemplate the adoption of a codification of at least its law of contract. Thus, the codification idea does have some chances of being adopted Euro-wise. This does not mean that such codification should necessarily be European, but by all means regional efforts of harmonisation now seem to have better prospects than global efforts.

Should it be along the traditional division of the law in private and public law, in substantive and procedural law, that European law be codified? So far, codification along social-economic lines seems to have been a better way. However, with the advent of more harmonised private law, it is important to preserve the rich European tradition in this area and this can best be done by keeping intact traditional divisions, even though in most countries these are not as sharp as they may once have been. The one exception is the division of private law in civil and commercial law. As the Italian and the Dutch examples show, this distinction is no longer warranted. [page 7]

Yet, the practical difficulties of codification, even along traditional lines, are large. With the Italian writer Mengoni, who spoke at this place three years ago, one is apt to

'riconoscere che "un codice per l'Europa" non è un'alternativa realistica.'[17]

It is therefore worthwhile to consider alternatives to codification.[18] How to proceed, once regulation -- be it in the form of codification, restatement or otherwise -- has been opted for? Some advocate the use of a single text as a point of departure.[19]

As to the feasibility, it may be argued that common and civil law are indeed too far apart at present. However, in ten or twenty years time this may be different. The difficulty seems to be that the systems are apart not only where solutions to common problems are concerned but also as to the formulation of these problems and the concepts used. Not everywhere is this the case. The common law jurisdictions, England and Wales, and Ireland, are close. The same applies to the civil law countries France, Belgium and Luxembourg, and to Denmark, Finland, Sweden and the European Economic Space State Norway. As between civil law and common countries,[20] England and Scotland are an example of close [page 8] co-operation. As these examples show,[21] a common linguistic heritage and a common legal culture often are the basis for such co-operation.

A common language -- Latin -- and a common heritage -- Roman law -- once did of course exist in Europe. Although the present situation bears little resemblance to pre-XIXth century Europe, and therefore a 'return' to that period is highly unlikely, yet the present interest in a new European civil law is a fascinating challenge to legal historians.[22]

Is all this academic speculation, designed at upgrading the profile of the law curriculum? A brief look at what the 'actors of the law' are doing shows us that the interest in the development of a European (civil) law is very real. Attorneys all over Europe are forming alliances. Judges are joining their efforts in setting up European courses for their continuing education. The most important event is that future attorneys and judges, the law students of today, are very much affected. Many present day students are participating in various exchange programmes, of which ERASMUS -- shortly to be replaced by SOCRATES -- and TEMPUS are the most successful, and a common legal education is being contemplated in various countries.[23] [page 9]

4. Harmonisation of aspects of the sale of goods

Returning to the question whether the consumer sale of goods law shall be harmonised, the answer must be yes. If private law is to be codified on a European level at all, the consumer sale of goods seems a most appropriate subject. As I have already noticed above, sale of goods is the single most important contract for the consumer and the question of conformity is the most important problem with which he is confronted.

Three arguments may still be advanced against the project. First, are not the laws of the Member States on this particular point too far removed from one another to warrant unification. Second, does partial harmonisation not destroy the possibility of future full scale unification. And third, is there any need for unification in practice.

As to the first argument, it may indeed be argued that unification is not (yet) possible, the various laws of Member States being too far removed from one another. It therefore seems a better idea to strive for the next best, which is harmonisation. This is indeed what the draft directive aims at. It must be confessed that harmonisation may satisfy the needs of the active consumer, but what about business interests? These would indeed be better served by total harmonisation, but this seems only attainable in a later stage.

The second argument must indeed be taken very seriously. Adopting a directive which is not in line with other directives, such as the forthcoming directive on distance-selling [24] or even other community-wide regulations, such as the Convention on the [page 10] International Sale of Goods,[25] may present serious problems once adoption of a more comprehensive code is contemplated.

The third argument is that there are at present very few consumer complaints with regard to cross-border transactions, for the simple reason that the number of cross-border consumer transactions is very low. This may be true, but then the question may be raised whether this may not in part be attributed to consumer constraints to fully explore the possibilities of the common market.[26] Constraints caused, among others, by unfamiliarity with what will happen if the goods bought abroad are going to give rise to complaints or after-sales service is needed.

5. The consumer notion

Let us now turn to the draft directive which has been circulated on a limited scale. A directive usually begins with a number of definitions. The draft directive on consumer guarantees is no exception. One of the definitions requires our particular attention, since it is somewhat out of the ordinary. It is the definition of 'consumer':

'Consumer' means a natural person who purchases a consumer good other than in the course of his trade, business or profession. Natural or legal persons purchasing consumer goods for purposes other than reselling them or making them available to a third party for financial gain shall be considered as a consumers when the circumstances and nature of the transaction makes are such that they are indistinguishable from purchases normally made by consumers.' [page 11]

The first sentence is in line with other EU directives, except for the requirement that the transaction should have to do with a 'consumer good'. An argument for including this element is that with regard to non-consumer goods the seller will not always be in a position to distinguish consumers from professional buyers. But it is the second sentence which is of most interest. The proposed rule strikes a balance between two opposing views which were expressed in the group of experts. One view was that not only consumers but small retailers as well should be protected by the directive. Although there was much sympathy for this view, the majority held that it would be very unwise to provide this protection through broadening of the consumer notion, as DG XXIV at first proposed. This would lead to even greater confusion as to the definition of consumer in community law.[27] The present text does not blow up the consumer notion, but extends the protection offered consumers by way of analogy. Whether the words 'indistinguishable' provide a good test, still remains to be seen.

6. Non-conformity

The most important part of the directive deals with non-conformity. Actually, it is even broader, since apart from non-conformity also late delivery is regulated. But that is it: problems such as the transfer of risk, the question which party should bear the costs of delivery, etc. are not dealt with in the proposal. The draftsmen were instructed not to exceed a reasonable number of articles and therefore had to drop all minor questions.

But let us first deal with non-conformity. At an earlier stage, the Commission had proposed to use instead a different test, e.g. whether the goods delivered were defective. This test was rejected by a majority [page 12] of the group of experts, who rather sought a closer link with the commercial sale of goods. The Vienna Sales Convention, to which a majority of EU Member States now adhere, uses the conformity test and some national laws do the same. The difference between the two tests may be shown by the example of the delivery of a 1995 model of a passenger car when the sales contract is concluded in 1996. Nothing with the car is wrong, so it can hardly be called defective. And yet it clearly is not in conformity with the expectations of the buyer, who expects a brand new car which at the time it is traded in has the value of a 1996 model and not of a 1995 model.[28]

Having settled for the conformity principle, several problems remain to be solved. First there is the question which party will have to prove lack of conformity and next, there is a number of specific situations which should be regulated. As for the first point, the Commission proposes that lack of conformity which becomes apparent within six months of delivery shall be presumed to have existed at the time of delivery.

The special situations which are dealt with are the following. First the goods delivered shall comply with statements by the seller and with advertising even when the latter comes from another party, e.g. the importer of the car concerned. This latter kind of provision may be novel for Italy, but it is well known in for instance Dutch [29] and Scandinavian law.[30] [page 13]

Second, goods shall be fit for the ordinary purpose and for the particular purpose agreed upon by the parties. This is in line with the Vienna Sales Convention (art. 35).

Third, the goods delivered shall be free of defects. It may be doubted whether this adds much to the previous obligations, but it can certainly do no harm.

7. Late delivery

The provision in the Draft directive which deals with conformity also contains a paragraph on late delivery. Goods, it says, shall be delivered by the time of the deadline; in the absence of a deadline, they shall be delivered within thirty days. The first sentence is in line with the law of most Member States. The second sentence of the paragraph is more specific than the law of Member States and should therefore be applauded. The sanction on non-compliance with this paragraph, according to the draft, is that the consumer has the right to cancel the contract. This raises the question whether or not Member States are free to require prior notification, and perhaps even to allow the seller a 'Nachfrist' ('Terme de grâce'). The fact that the draft does not mention this possibility warrants the conclusion that Member States may not put obstacles for cancellation. [page 14]

There is only one point on which the paragraph may be criticised. This is that it is out of place in a provision on non-conformity. Why is late delivery not dealt with in a separate provision? The answer lies in political reality: as I mentioned before, the draftsmen had strict orders to keep the number of provisions of the draft to a minimum. Exceeding the minimum might invite more votes against the draft. Although this is not very satisfactory, arguments such as these appear to be acceptable in the short run.

8. Remedies

This brings me to the important issue of remedies. Basically, the directive gives the buyer four remedies: the redhibitoria, a right to replacement, a right to repair, the quanti minoris. In most Member States, the redhibitoria and the quanti minoris have long ago been recognised,[31] but the right to replacement and to repair are more modern remedies. It is up to the buyer to choose between these remedies. There is no requirement that the breach be fundamental in order for the buyer to claim reimbursement. The directive does provide for something similar: in the case of 'minor lack of conformity', only two remedies are available -- the right to replacement and the right to repair -- and from the text it is not certain whether the consumer has a choice between the two. Elsewhere, a minor lack of conformity is called 'non-trivial', so the conclusion must be that this distinction boils down to something quite different from CISG's fundamental -- non-fundamental dichotomy. The draft directive leaves what shall be considered 'minor' for the courts to decide.

A fifth possibility for the consumer is to withhold payment, the exceptio non adimpleti contractus. [page 15]

A traditional remedy which is notably absent, is that of consequential damages. The draft directive lays down some provisions as to minor aspects of damages, but the major questions are left untouched. Wisely so, I would judge, since harmonisation of the law of damages will prove another major difficulty, and the present text is already quite a job. This will mean that with regard to most forms of damages, national law only will apply.

9. Deadlines

Whenever a consumer receives a good which is not in conformity with the contract, the question poses itself within which time a complaint should be made to the seller or the producer or within which further steps should be taken. The draft directive has the distinction of distinguishing between various deadlines. First, the consumer must notify the seller or the producer of any lack of conformity; second, he must claim a remedy, and third, he shall begin legal proceedings. As to the notification, the draft lays down a one month period. The advantage of a precise period, as opposed to the 'reasonable time' of art. 35 CISG, is that there can be no doubts as to its length. The period starts to run on the date on which the lack of conformity was detected, or ought to have been detected.[32]

The remedies of redhibitoria and replacement are only available, when the lack of conformity has been detected within one year; the remedies of quanti minoris and repair are available for two years. Both periods begin to run when the lack of conformity has been detected. As is the case in the product liability directive, there is a concurring period [page 16] as against the producer after which the consumer's action extinguishes. This is a ten year period, which starts to run when the producer has placed the good on the market.

Finally, the limitation period for the introduction of legal proceedings is left to Member States. But this period shall not be less than three years from the date on which the consumer notified the lack of conformity.

10. Guarantees

All of us are familiar with the guarantee documents which we receive when buying durable consumer goods, such as tv sets, cars, etc. More often than not, these guarantee documents offer the consumer nothing more than the law does, and even substantially less, by laying down exemptions for the seller. Lawyers have therefore traditionally held these guarantee documents in low esteem. And yet it cannot be denied that on a practical level, the system seems to work. If a consumer shows up at a retail store, showing a guarantee document, he is almost certain to be listened to. In the absence of a guarantee, he will have a hard job convincing the retailer of his rights.

The English have been the first to grasp this reality. In 1986 the Office of Fair Trading issued a Report on Consumer Guarantees, which was followed by a number of other official documents. This has then been taken up by the European Commission.

Art. 8 of the draft lays down a number of requirements. First, any guarantee must place the consumer in a more advantageous position than under the preceding articles. Second, the guarantee must be in writing. Third, the written document shall establish a number of things, such as the guarantee's duration and a notice of the fact that there are other rights besides the guarantee. Fourth, the consumer shall have the opportunity to examine the document before a purchase. Finally, the [page 17] draft directive, on the correct presumption that guarantees pertain to the goods and not to the purchasers contains the useful provision that they are automatically transferred to any later purchaser.

There is a number of technical questions, which I will not deal with here. A difficult problem, which we shall also encounter with regard to the after-sales service, is that of enforcement. Clearly a sanction of nullity of the guarantee would only be beneficial for the seller. Other measures will therefore have to be resorted to, as art. 11 of the draft Directive says. Whether these should be of a criminal, an administrative or a private (treble damages) type, is left to Member States.

The main criticism which may be levered at this part of the directive is that it does not lay down substantive minimum standards for commercial guarantees.[33] Member states may however, because of the minimum character of the directive, take further steps to protect consumers.

11. After-sales service

With the exception of some recent consumer laws, such as the Greek Consumer Act, after-sales service is usually not dealt with in legislation. The closest to regulation are the self-regulatory codes of practice, which in some trades do provide rules on the service to consumers after the ordinary warranty period has passed. Some trades do not have such codes, in some cases because there is no need for after-sales service (greengrocers). This raises the question whether or not a legislature should require every seller to provide such service. The draft Directive does not do so. It addresses only those sellers of whom, [page 18] 'because of the nature and the price of the good, the consumer could reasonably expect the existence of an after-sales service' (art. 9, para 1). And even those sellers do not have to provide after-sales service. But if they do not, they should inform the consumer thereof before purchase.

What does after-sales service entail? Para 3 answers this question:

3. All sellers, producers and producer's representatives offering after-sales service must be in a position to:
-  ensure maintenance of the goods;
-  ensure fast repair of the goods in the case of breakdown or malfunction;
-  offer fair and transparent prices and inform the consumer of these prices in advance, in particular by providing a detailed breakdown of the costs of the necessary work, if requested by the consumer;
-   give the consumer any technical information necessary.

In line with the Directive's aim to protect the active consumer, the question rises whether this service is of any use to an Italian consumer who buys a TV set in Finland. The Directive tries to solve the crossborder problem in the following way:

4. In the case of networks, all network members must be able to provide after-sales service themselves, or act as direct intermediaries between consumers and third parties who can provide after-sales services, and for whom the network member shall be liable. (...)

This is an ingenious solution. The one drawback which may be signalled is that network members may not be very enthusiastic about providing service to consumers who have profited from parallel imports to buy at low price and then turn to the official dealers for the service. [page 19]

So far we have missed one specific aspect of after-sales service, e.g. the availability of spare parts. This is taken care of in the next paragraph:

5. So that the goods can be used for their intended purpose, the producer shall ensure that the necessary spare parts and technical information are available for maintenance and repair of goods on the market for the normal life-time of the goods, or at least during a reasonable period of which consumers must be informed.

This provision raises several questions. First, it should be pointed out that this paragraph addresses the producer, not the seller. A difficult question is how to enforce this obligation. During the lifetime of the producer, damages such as those referred to in paragraph 2, could provide the answer, but article 9 does not provide for this solution. After the dissolvement of the producer through bankruptcy or otherwise, the problem is even more difficult to solve. One is apt to think of a trust fund, but the draft Directive -- from a political point correctly so -- does not go for this.

The conclusion must be that the after-sales service part is itself innovative but also, perhaps because of that, vulnerable.

12. Conclusion

The EU Draft Directive on guarantees in consumer contracts is an important document, since it is a major step towards harmonisation of European contract law. Trade and industry will not endorse the Directive with enthusiasm, because it does not provide for total harmonisation. Consumers, and to a smaller extent retailers, will benefit from the greater degree of certainty with which they can now make use of the internal market. Consumers and retailers in some Member States [page 20] will also profit from the improvement which the Directive will bring about in their domestic law.

More in general, the Directive -- if agreed upon -- may be a first building block for a European Sale of Goods Act. The sale of goods is the single most important consumer contract and delivery of goods which are not in conformity with the contract is the single most frequent complication. This Directive may well pave the way for more regulation, which may finally result in a European Sale of Goods Act.[34] [page 21]


1. In Italy, European Private Law has been the subject of conferences in Firenze -- see the special issue of the European Review of Private Law 1995/2 -- , Macerata -- see L. Moccia (ed.), Il diritto privato europeo: problemi e prospettive, Milano 1993 -- and Pavia -- see P. Stein (ed.), Incontro di studio su Il futuro codice europeo dei contratti, Milano 1993. In 1993, the Dutch Associations for Civil Law and for European Law discussed the subject in The Hague -- see E.H. Hondius, Naar een Europees burgerlijk recht, and L.A.D. Keus, Europees privaatrecht/een bonte lappendeken, Lelystad 1993; in 1996, the German Comparative Law Association will do the same in Jena.

2. In Italy, the University of Bari offers a Corso di perfezionamento in diritto privato europeo; in the Netherlands, all law faculties co-operate in a Network of European Private Law -- 2 European Review of Private Law 171-172 (1994).

3. François Jacquot, "The legal guarantee under French law/A comparison with the E.C. Green Paper", [1995] Consumer Law Journal 138-142. As for Italy see art. 1490 Codice civile.

4. See for instance H.W. Micklitz, "Legal guarantees -- German civil law in the light of the Green Paper", [1995] Consumer Law Journal 117.

5. Official Journal EC C 243 of 28 September 1990.

6. COM(93) of 15 November 1993.

7. Together with H. Beale (GB), G. Hager (D), G. Howells (GB), J. Huet (F), T. Håstad (S), R.H.C. Jongeneel (NL), H. Micklitz (D), G. de Nova (I), D. Philippe (B) and T. Wilhelmsson (SF).

8. See Geraint Howells, Comparative Product Liability, Aldershot 1993, p. 20 ff.

9. See Giscard d'Estaing, A-3-163/90 of 22 June 1990, B of 4 July 1990, footnote 20, B-3-1298-1300/92, B-3-1360-63/92.

10. In which case a Member State such as Germany might raise the issue before the EU Court of Justice -- see Norbert Reich, "European Consumer Law and its Relationship to Private Law", European Review of Private Law 1995, p. 285, 300-303.

11. An 'active' consumer is the consumer who crosses borders in the pursuit of the best or cheapest buy. A 'passive' consumer in this regard is a consumer who simply by watching Eurosport on his TV enters into a cross-border deal with a mail order company selling proposals.

12. A slightly less exagerated version of this view is expressed by Hugh Collins, "European Private Law and the Cultural Identity of States", European Review of Private Law 1995, p. 353-365.

13. The following is to a large degree based on my introductory chapter to A.S. Hartkamp et al. (eds.), Towards a European Civil Code, Dordrecht/Nijmegen 1994.

14. Two examples are the development of the law of legitimate expectations and the reception of the idea of proportionality into English law -- see Jürgen Schwarze, European Administrative Law, London/Luxembourg 1992, p. 869-870. The reception has met with scepticism from some authors who simply believe proportionality non transplantable as such -- see Sophie Boyron, Proportionality in English Administrative Law: A Faulty Translation?, (1992) 12 Oxford Journal of Legal Studies 237-264.

15. Article 1 of this 'Resolution on action to bring into line the private law of the Member States', Official Journal of the European Communities 1989, No C 158/400, reads: 'Requests that a start be made on the necessary preparatory work on drawing up a common European Code of Private Law, the Member States being invited, having deliberated the matter, to state whether they wish to be involved in the planned unification'. In April 1994, a new such resolution has been passed by the European Parliament.

16. J.H.M. van Erp, in Towards a European Civil Code, Dordrecht/Nijmegen 1994, 117-134.

17. Luigi Mengoni, L'Europa dei codici o un codice per l'Europa?, Roma 1993, p. 3.

18. Such alternatives are set out by Müller-Graff in Towards a European Civil Code, 19-36. One such alternative may be the elaboration of Principles of European Contract Law, Tort Law, Procedure, etc., as set out in Towards a European Civil Code, 37-50 by A.S. Hartkamp.

19. For what reason? 'Pour deux raisons fondamentales: tout d'abord pour la position intermédiaire qu'il revêt par rapport non seulement aux deux principaux courants juridique français et allemand (...) mais par rapport aussi au droit anglais; ensuite pour sa modernité intrinsèque, une modernité -- dirais-je -- raisonnablement prononcée, exempte des excès qui ont amené certains pays à faire en toute hâte marche arrière' (Giuseppe Gandolfi, "Pour un code européen des contrats", Revue trimestrielle de droit civil 1992, 707, 726).

20. See Zaphiriou, "Harmonization of Private Rules Between Civil and Common Law Jurisdictions", 38 American Journal of Comparative Law (1990).

21. Other examples include both North America -- the harmonisation achieved by the Uniform Commercial Code and the Restatements is notorious -- and Latin America. As to the latter see Alejandro M. Garro, Armonización y Unificación del derecho privado en América Latina: esfuerzos, tendencias y realidades, Roma 1992.

22. Reiner Schulze, "European Legal History -- A New Field of Research in Germany", 13 Journal of Legal History 270-295 (1992). See also the author's Die europäische Rechts- und Verfassungsgeschichte -- zu den gemeinsamen Grundlagen europäischer Rechtskultur, Saarbrücken 1991, p. 19.

23. See for instance F. Ost and M. Van Hoecke, "Pour une formation juridique européenne", Journal des Tribunaux 1990, p. 105-106; H.G. Schermers, "Jurist voor morgen", Nederlands Juristenblad 1991, p. 521-522; R. Verstegen, "Naar een Europese rechtsopleiding", Rechtskundig Weekblad 1990-1991, p. 657-660; G.R. de Groot, "European Legal Education in the 21st Century", in Bruno de Witte and Caroline Forder (eds.), The common law of Europe and the future of legal education/Le droit commun de l'Europe et l'avenir de l'enseignement juridique, Deventer 1992, p. 7-30.

24. See Antonio Jannarelli (ed.), Le vendite aggressive/Vendite stipulate fuori dei locali commerciali e vendite stipulate a distanza nel diritto italiano ed europeo, Napoli 1995.

25. See C.M. Bianca, M.J. Bonell (eds.), Commentary on the International Sales Law/The 1980 Vienna Sales Convention, Milan 1987.

26. See however the social and environmental arguments against cross-border shopping, mentioned by Ross Cranston, "The Green Paper on guarantees", [1995] Consumer Law Journal 110, 116.

27. Kamiel Mortelmans and Stewart Watson, "The notion of consumer in community law: a lottery?", Tijdschrift voor Consumentenrecht 1995, p. 229-246.

28. H.W. Micklitz, F. Amtenbrink, "Legal guarantees -- German civil law in the light of the Green Paper", [1995] Consumer Law Journal 117, 119-123.

29. R.H.C. Jongeneel, "The sale of goods in the Netherlands Civil Code: A contribution to the discussion about the Green Paper on guarantees for consumer goods and after-sales services", [1995] Consumer Law Joirnal 143, 145.

30. A draft provision of the Principles of European Contract Law (Lando Commission) lays down the following:

"(1) ...

(2) If one of the parties is a professional supplier who gives information about the quality or use of services or goods or other property when marketing or advertising them or otherwise before the contract for them is made, the statement is to be treated as a term of the contract unless it is shown that the other party knew or could not be unaware that the statement was incorrect.

(3) Such information and undertakings given by a person advertising or marketing services, goods or other property for a professional supllier or by a person in earlier links of the business chain will also be treated as a contractual undertaking by the professional supplier, unless he did not know and had no reason to know of the information or undertaking."

31. See for instance art. 1492 Codice civile.

32. An example from the CISG case law as to such requirement is the judgement of the German Bundesgerichtshof, which held that a commercial buyer of New Zealand mussels was not entitled to avoid the contract because of non-conformity of the packaging, because he did not give notice in time (notice was given two months after delivery) -- BGH (VIII. Senate) 8 March 1995, RIW 1995, 595, EuZW 1995, 447.

33. Ross Cranston, "The Green Paper on guarantees", [1995] Consumer Law Journal 110, 114-115, who makes a comparison with the American Magnuson-Moss Federal Warranty Act and the British National Consumer Council's draft bill.

34. As to alternatives to legislation see Ole Lando, "Principles of European Contract Law/An Alternative or a Precursor of European Legislation", RabelsZeitschrift 1992, 261-273.

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