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Lesson 3 Comparative law, Apuntes de Derecho Comparado

Tema 3 Comparative law, 1o derecho

Tipo: Apuntes

2018/2019

Subido el 21/10/2019

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LESSON 3: EUROPEANISATION OF LAW.
3.0. THE EUROPEAN UNION.
European Union (EU):
Political and economic union of 28 member states.
Internal single market.
Free movement of people, goods, services and capital.
Common legislation and justice (in some affairs).Common policies trade: agriculture,
fisheries, regional development.
Monetary union: 19 EU member states.
Origins:
European Coal and Steel Community (ECSC): Treaty of Paris 1951.
European Economic Community (EEC): Treaty of Rome 1957.
Legal system in EU:
Treaties (*) (origins: Treaty of Paris 1951 and Treaty of Rome 1957).
Acts:
Regulations become law in all member states the moment they come into force,
without the requirement for any implementing measures and automatically override
conflicting domestic provisions.
Directives require member states to achieve a certain result while leaving them
discretion as to how to achieve the result. The details of how they are to be
implemented are left to member states. When the time limit for implementing
directives passes, they may, under certain conditions, have direct effect in national
law against member states.
Decisions offer an alternative to the two above modes of legislation. They are legal
acts which only apply to specified individuals, companies or a particular member
state.
Regulations, directives, and decisions are of equal legal value and apply without any
formal hierarchy.
The Treaties of the European Union are a set of international treaties between the
EU member states which sets out the EU's constitutional basis.
They establish the various institutions together with their remit, procedures and
objectives.
The EU can only act within the competences granted to it through these treaties and
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LESSON 3: EUROPEANISATION OF LAW.

3.0. THE EUROPEAN UNION.

European Union (EU):

  • Political and economic union of 28 member states.
  • Internal single market.
  • Free movement of people, goods, services and capital.
  • Common legislation and justice (in some affairs).Common policies trade: agriculture, fisheries, regional development.
  • Monetary union: 19 EU member states.
  • Origins:
    • European Coal and Steel Community (ECSC): Treaty of Paris 1951.
    • European Economic Community (EEC): Treaty of Rome 1957. Legal system in EU:
  • Treaties ()* ( origins : Treaty of Paris 1951 and Treaty of Rome 1957 ).
  • Acts:
  • Regulations become law in all member states the moment they come into force, without the requirement for any implementing measures and automatically override conflicting domestic provisions.
  • Directives require member states to achieve a certain result while leaving them discretion as to how to achieve the result. The details of how they are to be implemented are left to member states. When the time limit for implementing directives passes, they may, under certain conditions, have direct effect in national law against member states.
  • Decisions offer an alternative to the two above modes of legislation. They are legal acts which only apply to specified individuals, companies or a particular member state.
  • Regulations, directives, and decisions are of equal legal value and apply without any formal hierarchy.
  • The Treaties of the European Union are a set of international treaties between the EU member states which sets out the EU's constitutional basis.
  • They establish the various institutions together with their remit, procedures and objectives.
  • The EU can only act within the competences granted to it through these treaties and

amendment to the treaties requires the agreement and ratification (according to their national procedures) of every single signatory.

  • Two core functional treaties:
    • The Treaty on European Union ( originally signed in Maastrich in 1992 ).
    • The Treaty on the Functioning of the European Union ( originally signed in Rome in 1957 as the Treaty establishing the European Economic Community ). Institutions in EU: 1. The European Council. 2. The European Commission. 3. The Council of the European Union. 4. The European Parliament. 5. The Court of Justice of the European Union. 6. The European Central Bank. 7. The European Court of Auditors.

3.1. HARMONIZATION OF PRIVATE LAW IN THE EUROPEAN UNION: THE POLITICAL

INITIATIVES.

Actual situation in Europe:

  • One of the European Union’s most significant achievements is the single market of 500 million consumers. Its fundamental freedoms entitle businesses and citizens to move and interact freely in a borderless Union.
  • Despite these impressive successes, barriers between the EU Member States still remain.
  • They do not always allow citizens and businesses to take full advantage of the single market and more specifically cross-border trade. Many of these barriers result from differences between national legal systems.
  • For these reasons → harmonization.

Harmonization :

  • What is? The process of creating common standards across the internal market.
  • Why? Achieve uniformity in laws of member states to facilitate free trade and protect citizens.
  • One difficulty: multilingual structure → need of accurate translations. Harmonization vs. Unification:
  • Unification : substituting or combining two or more legal systems and replacing them with a single system.
  • Harmonization: co-ordinate different legal systems by “eliminating major differences and creating minimum requirements or standards”. Harmonization can be seen as a step towards unification. Harmonization of private law : Methods: 1. Ordinary legislation : ( dº vigente ).
  • Regulation: i.e. data protection.
  • Directives: i.e. intellectual property, mercantile companies, insurance contracts, unfair trading, misleading advertising, product liability, consumer contracts and electronic commerce. (The preferential use of directives in the sphere of private law helps member states to retain a certain degree of autonomy and flexibility.) 2. Non-binding methods (soft law) : ( dº académico ).
  • Aim: convergence of the legal systems of each member state. Tendency to new common European law. Main Political initiatives of soft law (non-binding)
  • Principles of European Contract Law (Principios de Derecho Europeo de los contratos PECL).
  • Draft Common Frame of Reference (Borrador de Marco Común de Referencia DCFR).
  • Common European Sales Law (Propuesta de Reglamento sobre Derecho europeo común de la compraventa: propuesta CESL) 3.2. THE PRINCIPLES OF EUROPEAN CONTRACT LAW (PECL). Principles of European Contract Law ( Principios de Derecho Europeo de los contratos PECL ). (2000)

Sometimes are the election between different solutions in the national systems and, other times, different adopted agreements of the group.

  • Influence in the Libro Sexto Código Civil de Catalunya (2017). 3.4. COMMON EUROPEAN SALES LAW (CESL). Common European Sales Law ( Propuesta de Reglamento sobre Derecho europeo común de la compraventa: propuesta CESL ) (2011, approved 2014).
  • Common regulation of sales law. This regulation is facultative (parts can decide if use it or not), depending on the internal law of each country.
  • It is based in the “Convención de Viena”, “Principios Unidroit”, Principios Lando, DCFR, Principios Acquis and other legal texts that join the proposals of a modern regulation in obligations and contracts.
  • Why is CESL important? All economic transactions are based on contracts. This is why differences in the rules on how a contract is concluded or terminated, how the delivery of a faulty product has to be remedied or what interest has to be paid in the case of a late payment are felt in the daily life of both traders and consumers. For traders, these differences generate additional complexity and costs, notably when they want to export their products and services to several other EU Member States. For consumers, these differences make it more difficult to shop in countries other than their own, a situation which is particularly felt in the context of online purchases. 3.5. NEW PROPOSALS OF EUROPEAN DIRECTIVES: THE SINGLE DIGITAL MARKET. The importance of the single digital market :
  • The Digital Single Market is a strategy of the European Commission to ensure access to online activities for individuals and businesses under conditions of fair competition, consumer and data protection, removing geo-blocking and copyright issues. The Digital Single Market Strategy is built on three pillars: 1. ACCESS : better access for consumers and businesses to digital goods and services across Europe; 2. ENVIRONMENT : creating the right conditions and a level playing field for digital networks and innovative services to flourish; 3. ECONOMY and SOCIETY : maximising the growth potential of the digital economy.

The single digital market → modern digital contract rules.

  • Two proposals of directives:
    • Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain aspects concerning contracts for the supply of digital content. (9.12.2015) [This Directive lays down certain requirements concerning contracts for the supply of digital content to consumers, in particular rules on conformity of digital content with the contract, remedies in case of the lack of such conformity and the modalities for the exercise of those remedies as well as on modification and termination of such contracts] (Netflix, HBO, Movistar+).
    • Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT and OF THE COUNCIL on certain aspects concerning contracts for the online and other distance sales of goods (9.12.2015) (Amazon, AliExpress, Ebay).