ppt-slides European Private Law fall semester 2014

Preliminary remark


This presentation is NOT
self-explanatory. It is
neither meant to be an
outline nor a textbook.
This presentation only
serves as a visual help for
those attending the lecture
and is contingent on the
explanations and
(substantial!) additions
being given orally and on
the blackboard during the
lecture.
European Private Law
Universität Mannheim
Fall Semester 2014
Dr. Juliana Mörsdorf-Schulte
LL.M. (Berkeley)
juliana@netcologne.de
This presentation ...
... accompanying the EPL lecture will be available online:
http://www.jura.uni-mannheim.de/dozenten/
lehrbeauftragte_lehrkraefte/dr_juliana_moersdorf_schulte/in
dex.html
... for important questions please feel free to contact
juliana@netcologne.de
… or come and see me during the breaks
Timetable !!!
Sat 15.11.2014 (11h-18h15)
Sat 22.11.2014 (11h-18h15)
Thu 27.11.2014 (10h15 -13h30)
(13h45-15h30)
exam:
Thu 11.12.2014 (11h-11h45)
EW 156
EW 148
B6 A301
O 135
L9 001
Europe

European Union
 Council of Europe (e.g. European
Convention on Human Rights + ECourtHR)
 Other Treaties
EU Law

Different kinds of legal acts
 Principle of conferral: restricted
legislative competence
 No comprehensive competence to
legislate in private law – no code
 Draft Common Frame of Reference
 Lando Group
 Study Group
 Acquis Group
European Private Law

Multi Layer Situation
 Autonomous legal order
(Costa/ENEL 6/64)
 29 legal orders
 „European Legal Space“ (von
Bogdandy JZ 2011, 1 ff.)
Preemptive effect of EU law
Van Gend & Loos (26/62):
•Preemption
•Individual Rights
Problems as to the interplay of EU
law and national law implementing
EU law, e.g. cases:
•Quelle (C-404/06)
•Schultz-Hoff (C-350/06)
European Court of Justice of
the European Union (ECJ)
Art. 19 Subart. 1, TEU
Art. 267 TFEU
ECJ
German Federal President Herzog FAZ 2008:
„Stop the ECJ!“ (aftermath of the Mangold case C-144/04)
„Methodology“ of the ECJ
(German constitutional court – „rule of law“)

Literal
 Historical
 Systematic
 Teleological
– „effet utile“

(Equitable) comparative method
Stare decisis (?)
(aspect of legitimation:
broad discourse with more than 33 partcipants)
Implementation
in the Member States
State liability for non-implementation:

Francovich case (C-6 and 9 /90)

Köbler case (C-224/01)
Comprehensive English
„literature“ on
European Private Law

ec.europa.eu/justice/contract/files/european
-private-law_en.pdf
 European Review of Private Law

desire to codify (prevalent among
continental academics) ./. Niglia, Leone,
The Struggle for European Private Law: A
Critique of Codification, Dec 2014.
Principles underlying EPL
according to the DCFR

Freedom
 Security
 Justice
 Efficiency
DCFR = a valuable treasure of soft law
CESL = upcoming hard law
Sales Law

Common European Sales Law, CESL
– Opt in (optional instrument)
– B2C, B2B
– for distant selling (esp. online contracts) only
(see, Commission draft amended by Parliament
on Feb 26, 2014)

CISG
– Opt out
– B2B
CESL

Draft as of Jan 11, 2011 COM(2011) 635 final
 Basis: 114, 294 II TFEU
 Pro
– Uniform interpretation throughout EU

Con
– Some member states‘ parliaments reject the draft for
reasons of subsidiarity
UNJUST ENRICHMENT

No uniform law but:
Leverage for breach of public EU law (EU
prohibitions)
– E.g.: §§ 812, 134 CC in connection with e.g.
Art 102 TFEU
(ECJ 66/86 Ahmed Saeed Flugreisen)
§ 134 CC: „A legal transaction that violates a statutory
prohibition is void ....“
§ 812 CC: „A person who obtains something as a result of
the performance of another person ... Without legal
grounds for doing so is under a duty to make restitution to
him. ...“
Intellectual Property
See: Kur, Annette/Dreier,Thomas
European Intellectual Property Law Text, Cases and Materials, 2013.
Unfair Competition

ECJ
Estee Lauder ./. Lancaster
C-220/98
• Art 34, 36 TFEU
• Directive 76/768/EEC
• Directive 84/450/EEC
hasty vs. reasonable consumer
PRODUCTS LIABILITY

Product liability directive
85/374/EEC
 Case: T steals a precious
briefcase worth 1.200 EUR
out of the trunk of B‘s car.
Can B get damages from P
who produced the car with
a defect in the trunk lock
that made the theft easy?
COMPANY LAW
Ideal field to promote transboarder commercial
activities

Primary Law
 Secondary Law
– 13 directives on harmonization (on capital, audits,
fusion & division etc.)
– 2 regulations on „European companies“ (SE, EEIG)

Case Law
Equal protection of
shareholders?

ECJ C-101/08 Audiolux

RTL Group SA: Bertelsmann bought
shares of 2 big shareholders

Several directives provided for equal prot.
 Yet reluctant court found no principle.
Art 49 II TFEU

„Freedom of establishment shall include the right
to take up and pursue activities as self employed
persons and to set up and manage undertakings, in
particular companies or firms within the meaning
of the second paragraph of Article 54, under the
conditions laid down for its own nationals by the
law of the country where such establishment is
effected, subject to the provisions of the Chapter
relating to capital.“
./. ex art 293 ECT: „Member States shall, so far as is necessary, enter into negotiations with
each other with a view to securing for the benefit of their nationals: ….
— the mutual recognition of companies or firms within the meaning of the second paragraph
of Article 48, the retention of legal personality in the event of transfer of their seat from
one country to another, and the possibility of mergers between companies or firms
governed by the laws of different countries,
…
Law of Corporations
Ongoing erosion of the rule of head office?
... for reason of freedom of establishment
EU:







Daily Mail C-81/87
Centros C -212/97
Überseering C-208/00
Inspire Art C-167/01
Cartesio C -210/06
Vale C-378/10
Not only as to existence, but also as to internal structure/liability of directors ( German Supreme Court
BGH NJW 2005, 1648 )
Limits:
 … in order to come under Art 49, 54 TFEU, corp needs to pursue economic gain (OLG Zweibrücken
NZG 2005, 1019)
 requirement of minimum contacts: genuine link, BGH IPRax 2005, 340; JZ 05, 298
Extensions:
 Extension of this rule to US by German Supreme Court (BGH IPRax 2003, 265 = BGHZ 153, 353)
Extension to other friendship treaties as well?
 Extension to European Economic Area, e.g. Liechtenstein: German Supreme Court BGH NJW 2005,
3351 (Art 31 EEA)
LABOUR LAW

Hornbooks:
Thüsing (2008, 2011)
Riesenhuber 2009
 Law Journal: „Europäische Zeitschrift für
Arbeitsrecht“ – since 2008
 Collection of legal provisions: Neumann
(Ed.), Europäisches Arbeitsrecht/European
Labour Law/Droit Européen du Travail,
2003.
Overview

Primary law
 General principles of Community law
 Secondary law

Bases of competence:
– Social Policy: Art. 151-161 TFEU
– Free movement: Art. 45-48 TFEU
– Discrimination: Art. 19 TFEU

Soft law: 1989 Community Charter of the
Fundamental Rights of Workers
SIMAP
C-303/98

Presentation: Ms. Fuentes de Tienda

Directives 89/391/EEC + 93/104/EC

Broad economic consequences
Mangold
C-144/07

Presentation: Mr. Feddersen
Mangold „Legal context“

Paragraph 14(3) of the TzBfG as of 1 January
2003:
 ‘A fixed-term employment contract shall not
require objective justification if when starting the
fixed-term employment relationship the employee
has reached the age … of 52.’
 = implementation of Article 6(1) of Directive
2000/78
 The principle of non-discrimination on grounds of
age must be regarded as a general principle of
Community law.
Mangold aftermath

Critique
(esp. Gerken/Rieble/Roth/Stein/Streinz)
– activist court, exceeding competence, making up
the law, no serious methods of interpretation
– collusion


Constitutional problems ensue - yet ~upheld
by BVerfG NJW 2010, 3422 (Honeywell)
Palacios C-411/05: justification allowed
 Kücükdevici C-555/07: grand chamber 2010:
Mangold affd. (on the basis of 21 I Charter, 6
TEU)
Christel Schmidt
ECJ C-392/92
Plaintiff and appellant in the main
proceedings, who was employed by
the Savings Bank to clean the
premises of its branch office in
Wacken, was dismissed in February
1992 on account of the
refurbishment of that branch office,
in which the Savings Bank wished
to entrust the cleaning to
Spiegelblank, the firm which was
already responsible for the cleaning
of most of the Savings Bank' s
other premises.
Christel Schmidt

613 a CC: „If a business or part of a business passes to another
owner by legal transaction, then the latter succeeds to the rights and
duties under the employment relationships existing at the time of
transfer. …”



'1 . May an undertaking's cleaning operations, if they are transferred by
contract to a different firm, be treated as part of a business within the
meaning of Directive 77/187/EEC?
2. If the answer to Question 1 is in principle in the affirmative, does
that also apply if prior to the transfer the cleaning operations were
undertaken by a single employee?‚
Article 1(1) provides that 'this directive shall apply to the transfer of an
undertaking, business or part of a business to another employer as a
result of a legal transfer.
More EU labour law

Ayse Süzen
 Klarenberg
C-13/95
C-466/07

Schultz-Hoff C-360/06 ./. KHS C-214/10

Trade unions: Viking C-438/05, Laval C341/05, Rüffert C-346/06
CONTRACTS

Soft law: esp. DCFR (formerly PECL)
 Primary law: esp. Art. 34 TEU
 Secondary law:
 Numerous directives , e.g.
– Consumer law (2011/83/EU )
– Timesharing (2008/112/EC)
– Insurance broker (2002/92/EC)
– Price transparency (98/6/EC)
 Few regulations, e.g.
– Flight passengers (EC 261/2004) delay and denied
boarding
– Flight passengers (EC 1107/2006) (handicapped
travellers)
Keck, Dassonville


Presentation: Ms. Navarro
Mere modalities of sale ./.
Quantitative restrictions and equivalents
(product related) (Art. 34 TFEU)
Dillenkofer
C-178/94


1. Failure to take any measure to transpose a directive in order to
achieve the result it prescribes within the period laid down for that
purpose constitutes per se a serious breach of Community law and
consequently gives rise to a right of reparation for individuals suffering
injury if the result prescribed by the directive entails the grant to
individuals of rights whose content is identifiable and a causal link
exists between the breach of the State's obligation and the loss and
damage suffered.
2. The result prescribed by Article 7 of Council Directive 90/314/EEC
of 13 June 1990 on package travel, package holidays and package
tours entails the grant to package travellers of rights guaranteeing a
refund of money paid over and their repatriation in the event of the
organizer's insolvency; the content of those rights is sufficiently
identifiable.
Heininger
C-481/99

1. Council Directive 85/577/EEC of 20 December 1985 to protect
the consumer in respect of contracts negotiated away from business
premises is to be interpreted as applying to a secured-credit
agreement such as that in point in the main proceedings, with the
result that the right of cancellation provided for in Article 5 of that
directive is available to a consumer who has entered into a contract
of that type in one of the cases specified in Article 1.
 2. Directive 85/577 precludes the national legislature from
imposing a time-limit of one year from the conclusion of the
contract within which the right of cancellation provided for in
Article 5 of that directive may be exercised, where the consumer
has not received the information specified in Article 4.
Enhanced Cooperation
Art. 20 TEU


Only example: Rome III Regulation
(special legislative procedure not necessary
for Rome IV)
Names Law

Garcia Avello C-148/02.
 Grunkin Paul C-353/06.
 Sayn-Wittgenstein C-208/09
 Runevič-Vardyn C-391/09.

... case presentations and analyses ...
Implementation by the
legislator


Art. 48 IACC
Choice of a name obtained in another Member State of the
European Union
(1) Where the name of a person underlies German law, that person can,
by declaration before the Registrar of Births, Marriages and Deaths,
choose a name that he or she has obtained when he or she had habitual
residence in another Member State of the European Union, where that
name was registered in a Register of Births, Marriages and Deaths,
unless this is manifestly incompatible with the fundamental principles
of German law. The choice of name has retroactive effect upon the
time of the registation in the Register of Births, Marriages and Deaths
of the other Member State, unless the person explicitly declares that
the choice shall be effective for the future only. The declaration needs
to be publicly certified or authenticated. Article 47 subarticles 1 and 3
shall apply mutatis mutandis.
Merry Christmas
and a happy and successful year
2015
!