Suchergebnisse

The 2008 proposal for a Directive on Consumer Rights (hereinafter: the Draft) aims at reorganizing the acquis of four specific European directives on consumer protection into a more coherent codification of consumer rights. Specifically, it contains rules on precontractual information duties, on withdrawal rights for distance and off-premises contracts, on consumer sales and on general contract terms in consumer contracts. In replacing the four directives with a minimum harmonization character, the Draft marks a further step towards full harmonization of consumer contract law in Europe. This is an unsettling step because the level of protection offered to consumers in the Draft hardly exceeds the level of protection offered by the four directives mentioned earlier. Instead, it diminishes this protection in some regards. In light of all this, the question arises whether the policy choices underlying the Draft are, in fact, convincingly underpinned by solid argumentation. This article addresses this issue by first analyzing the Draft's use of the generic concept of "contracts between consumers and traders". It is argued that full harmonization of a badly delineated territory is ill-advised. Subsequently, the argumentative power of the policy considerations forwarded by the European Commission in its Regulatory Assessment Study is tested. The article concludes that the Commission's assessment of expected costs and benefits of the Draft is waver-thin and geared towards persuading the reader of the aptness of choices already made. In some respects, the evidence presented by the Commission is outright unconvincing. At certain points, the Draft even fuels the reader's suspicion of foregone conclusions. Overall, the need for reduction of the level of protection offered by the current minimum harmonization directives is poorly argued by the Commission and appears, in a number of important ways, not to reflect the socio-economic relationships that exist in at least some of the Member States.

This article looks into the role of injunctive relief in tort law. More specifically, it focuses on the role of injunction in cases concerning wrongful risk-taking behaviour (as opposed to intentional or deliberate wrongdoing). Although there seems to be little practical experience with injunctive relief in cases of wrongful risk-taking behaviour, both the dogmatic and practical implications of allowing or rejecting such claims are formidable. By granting petitions for injunctive relief, courts effectively convert ex post claims for compensation into primary duties to act or omit. By contrast, rejecting injunctive relief renders tort law rules into mere taxes on wrongful behaviour. Which of these two routes is chosen by courts and legislators and how forceful are the arguments used to support either choice? The aim of this paper is twofold: firstly, to gain a better understanding of the French, German and English legal systems with respect to the role of injunction in tort law and secondly, by drawing on the comparative analysis, to identify the implications of allowing and rejecting injunctive relief for the understanding of tort law. If indeed the role of injunctive relief in cases of wrongful risk-taking behaviour sheds light on tort law's ends, then perhaps a threefold conception of tort law is in order.