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The purpose of this contribution is to discuss the extent of the Union's competence to adopt a comprehensive instrument of substantive contract law in light of the options set forth in the Commission's 2010 Green Paper on European contract law, with a view to exploring the limits of, and the relationship between, certain prominent Treaty provisions in the debate -- namely, Articles 114, 115, 81, 169 and 352 TFEU (ex Articles 95, 94, 65, 153 and 308 EC, respectively) -- and the roles played by the principles of subsidiarity and proportionality in guiding the exercise of Union competence inside, as well as outside, the EU decision-making process. Moreover, given the reference to certain American techniques in the Green Paper, this contribution seeks to facilitate discussion of the comparative dimensions of the constitutional assessment of contract law in the European Union and the United States. [ABSTRACT FROM AUTHOR]

Although based on academic background and literature, my answer to the questions posed by the European Commission turns out to be rather political as from my point of view it is impossible to address those questions in a purely technical way. Although there are other, probably more relevant, obstacles to the internal market, I consider that there is enough evidence to assume that different legislation is an obstacle well worth looking at. I begin with the discussion of goals, strictly connected to the scope of application, and move to the debate on formal/informal harmonisation of contract law. As on one side there is not enough evaluation to sustain solidly that harmonisation or unification is better that diversity that meets local preferences, and on the other side liberty, subsidiarity and proportionality claim for parties' freedom to opt for their better solution, I support the view that Member States must be able to maintain their internal law but at the same time must wide the parties' scope of options with the approval of a Regulation on European contract law. In any case, a lot of assessment should still take place. [ABSTRACT FROM AUTHOR]

This paper explores the possible implications of leading contemporary theories of political philosophy for some of the main questions that the political institutions of the European Union will have to decide on concerning the future of European contract law. Thus, it explores what a utilitarian, liberal-egalitarian, libertarian, communitarian, deliberative/citizenship idea of European contract law might look like. The primary aim of the paper is to demonstrate the relevance of social justice theories to some of the main issues concerning the future of European contract and, conversely, to indicate the relevance of (European) contract law to political philosophy. A second, more practical aim is to provide the stakeholders (including legal academics) and politicians that are currently called upon, by the European Commission's Green Paper, to submit their views on ''policy options for progress towards a European Contract Law for consumers and businesses'' with an idea of what a position in terms of an articulate and comprehensive political theory might look like. An important question is whether it is possible and desirable to explain and justify one's concept of European contract law and its future exclusively in terms of one single of these five political ideas of European contract law. The tentative answer in this paper is that a pluralist or composite idea of European contract law is more attractive than a monist one. [ABSTRACT FROM AUTHOR]

The Green Paper points towards option 4, the Optional Instrument, as the instrument of European contract law. But it is a deceptively reassuring option: the emphasis on choice is misguided. Choice is not necessarily good. If it allows parties to avoid rules or principles of national law which have been developed for good reasons within the national legal system, it can undermine the national policies. And ''choice'' is not necessarily free choice. The appropriate place for the discussion of consumer protection is in relation to the Consumer Rights Directive. ''Choice'' is not always present in relation to business contracts, either. The only context in which the emphasis on ''choice'' makes sense is where there is a negotiation between two equal business parties. The desirability of an Optional Instrument hinges on that case. But this still raises questions about whether a business party would rationally choose the Optional Instrument over its own or the other party's law, given questions of legal certainty which will arise (at least in the early years), and given the substantive rules of the final text of the Instrument. [ABSTRACT FROM AUTHOR]

After shortly introducing the most promising options presented in the Green Paper -- the introduction of an optional instrument, a European contract law or a European civil code -- their potential personal and material scope are analysed. As with regard to the optional instrument, the EC's assumption that businesses as well as customers would opt for it is challenged by showing that practical obstacles other than legal differences hinder cross-border trade. With regard to the personal scope, the disadvantages of provisions based on a stereotyped consumer notion and of the adoption of European rules by merely copying them into national law are demonstrated. Consequently it is advocated that specific provisions applying only to B2C relations should to a certain extent be substituted by general clauses. It is concluded that a broad personal scope including B2C, B2B as well as C2C relations would best serve the purpose of enhancing the internal market by reducing the legal regimes businesses would have to deal with. In line with the EC's goal to promote cross-border trade by reducing legal differences, a broad material scope is recommended since the limitation to certain types of contracts or to cross-border transactions would not reduce transaction costs. Finally, the importance of an effective enforcement of European rules is stressed. [ABSTRACT FROM AUTHOR]

The paper examines the role of the Common Frame of Reference in a multilevel private law system where it is asked to work as a parameter for interpretation and application of internal law. It reaches the conclusion that the best solution for the progress of European contract law could be the adoption of a non binding instrument for, such as a Commission Recommendation (option 3). [ABSTRACT FROM AUTHOR]