Suchergebnisse

On 20 May 2019 the European legislator adopted two Directives, each a milestone on the road to development of European contract law: The Directives on Contracts for the Supply of Digital Content or Services and on the Sale of Goods. These Directives are the first steps in the adaptation of European private law to the requirements of the digital economy. The object of this article is firstly, to explain the importance of these Directives from this policy angle and then, to explain their content. It focuses on both the areas of commonalities and the areas of difference with regard to scope and the Directives' central provisions on conformity and consumer remedies. This contribution pays special attention to the two areas of data as counter-performance and goods with digital elements which exemplify the adaptation of legislation to the digital economy. Throughout this contribution, we will consider where the legislator has maintained consistency with existing law and the sources from which any changes stem.

The Commission has gone one step further on its way to a coherent European contract law. The Communication ?European contract law and the revision of the acquis: the way forward? shows this already in its title. The Communication deals in particular with the development of the Common Frame of Reference which will serve as a tool to review and revise the contract?law?relevant EC acquis. In addition, it also develops some parameters for the discussion on future optional instruments in European contract law which the contractual parties can choose as the applicable law for cross?border contracts.

Abstract: The recent Commission's Action Plan on a more coherent European Contract Law is another important step in the discussion about perspectives for the future of European Contract Law. To start with, this document suggests, as a first measure, improving the existing and future acquis communitaire in the field of contract law. This is to be achieved by means of a so-called Common Frame of Reference, which will be developed in order to help both in revising the existing acquis communitaire and in preparing new proposals. In addition, the Action Plan envisages the development of general business conditions valid throughout Europe via the exchange of information, and it embarks upon further reflections about having an optional instrument of European Contract Law. Parties can then make a choice of law for the latter next to their national laws.

On 11 July 2001 the Commission adopted its Communication on European Contract Law,1 which has received a lot of attention in academic discussion.2 In the following the main contents of the Commission Communication will first be summarised. In addition the political and institutional context shall be described which is important for the understanding of the Communication and the future prospects. Finally, we will try to demonstrate, how—according to the Council report3 and the European Parliament (EP) resolution4 concerning the Communication—these future prospects could develop4a.

In the political context, the Communication from the Commission lies at the intersection of three converging tendencies of development: the ambitions on the part of the European Parliament concerning the harmonization of Private Law; the increasing amount of academic preparatory work; and the impetus provided by the European Council in Tampere. The underlying question of the Communication is whether — in the light of the current degree of harmonization of European Contract LAw — there are still problems despite, or due to, the selective approach to harmonization that might call for a new approach. Areas where problems could occur concern the proper functioning of the Internal Market and the uniform application of Community law. The Communication raises four options for discussion. First, the solution is left to the market. The second option envisages the development of common principles that can be used as non-binding guidelines for contracting parties, national courts, arbitrators, and national legislators. The third option consists of revising the existing acquis communautaire. The fourth option devises the adoption of a new instrument at the EC level, where three criteria can be combined: the nature of the act to be adopted, the relationship with national law, and applicability by way of choice of law or automatically.

The wide scope Directive on the Sale of Consumer Goods and Associated Guarantees (Directive 99/44/EC, dated 25. May 1999) is the most important consumer legislation adopted by the European Community. Furthermore, this Directive concerns one of the core areas of every national private law. This Directive is destined to be a milestone on the path to a unified European private law. It aims to improve the functioning of the internal market and to protect the consumer. Its scope is determined by the definitions of "consumer" and "seller" and it covers contracts of sale of consumer goods. Goods have to conform to the contract. The seller is liable where defective goods are delivered to the consumer. In such an event, the remedies of replacement, repair, rescission of the contract and price reduction are available to the consumer. The lack of conformity has to become apparent within two years as from delivery of the goods. The Directive includes a shift of the burden of proof in favour of the consumer. Member States have the possibility to introduce an obligation on the consumer to notify the defect within a set time period. The final seller has a right of redress against the person liable in the contractual chain. The Directive contains also a number of transparency obligations concerning commercial guarantees.

Cover -- Data as Counter-Performance - Contract Law 2.0? An Introduction -- I. Background -- II. The response of the European legislator -- III. Provision of data and conclusion and performance of contract -- IV. Conclusion and outlook -- Legal Nature and Economic Value of Data in the Contractual Relationship -- A Market Model for Personal Data: State of Play under the New Directive on Digital Content and Digital Services -- I. Data as counter-performance in consumer contracts -- II. Personal data and the law of contract -- 1. Offer to conclude a contract -- 2. Acceptance by the consumer -- 3. Personal data as consideration? -- 4. Contract with or without consent to data processing -- 5. Obligation to provide data as counter-performance -- 6. Validity of contract -- III. A market model for personal data -- 1. Why taking the risks of a market model? -- 2. Indications for market failure -- IV. Conclusions -- Regulating the Economic Impact of Data as Counter-Performance: From the Illegality Doctrine to the Unfair Contract Terms Directive -- I. Introduction -- II. Measuring the economic value of personal data -- 1. Market valuation methods -- 2. Individuals' valuation methods -- 3. Key insights -- III. The legal value of personal data as counter-performance -- 1. Counter-performance and the Directive on Contracts for the Supply of Digital Content and Digital Services -- 2. General contract law and data protection law -- a) Partial independence: unlawful data processing and counter-performance -- aa) The role of data protection law - the Facebook example -- bb) The illegality doctrine revisited: against the invalidation of contracts -- b) The scope of the DCDS Directive -- IV. Limits to data as counter-performance: the Unfair Contract Terms Directive -- 1. Market failures in data-based consumer markets -- 2. Applicability in parallel to the GDPR.

Cover -- Introduction -- Trading Data in the Digital Economy: Legal Concepts and Tools -- Starting Points and Challenges -- Big Data and the EU Database Directive 96/9/EC: Current Law and Potential for Reform -- Trading Data in the Digital Economy: Trade Secrets Perspective -- Exclusivity Rights -- Data Property in the System of Intellectual Property Law: Welcome Guest or Misfit? -- Property Rights Regarding Data? -- Rights on Data: The EU Communication 'Building a European Data Economy' from an Economic Perspective -- Compulsory Licence -- Improvement of Data Economy through Compulsory Licences? -- Access to Data: The Role of Consent and the Licensing Scheme -- Data Interfaces and Data Formats as Obstacles to the Exchange and Portability of Data: Is there a Need for (Statutory) Compulsory Licences? -- Contractual Concepts -- On the Future EU Legal Framework for the Digital Economy: A Competition-based Response to the 'Ownership and Access' Debate -- Contracts with Big Data: The End of the Traditional Contract Concept? -- Fishing for an Agreement: Data Access and the Notion of Contract -- Panel Discussion -- Learning from Past Mistakes: Similarities in the European Commission's Justifications of the Sui Generis Database Right and the Data Producers' Right -- Trading in Data: A Policy Perspective -- Trading in Data: An Industry Perspective -- Of Elephants in the Room and Paper Tigers: How to Reconcile Data Protection and the Data Economy -- Contributors

Die Schaffung eines einheitlichen digitalen Binnenmarktes gehört zu den wichtigsten Zielen der Europäischen Kommission. Das Werk befasst sich mit den Herausforderungen für das Europäische Vertragsrecht für die Bereiche 3D-Druck, Share Economy und Internet of Things. Die zunehmende Verbreitung digitaler Produkte und besonders des Internet of Things, der Share Economy und des 3D-Drucks stellen den Gesetzgeber und die Rechtswissenschaft vor neue Herausforderungen.Der Band setzt sich in diesem Rahmen u.a. mit dem Einfluss auf vertragliche Pflichten, die Auswirkungen für die vertragliche und außervertragliche Haftung sowie dem Verbraucherbegriff auseinander