When the European Commission initiated the Common Frame of Reference process, it aimed, in particular, at a revision of the acquis communautaire in the field of consumer contract law. However, such a revision has not, to date, been undertaken. The authors of the present paper have attempted to remedy this deficiency by an investigation of the key issues involved: the proper scope and effectiveness of mandatory law, the policing of not individually negotiated unfair contract terms, rights of withdrawal, the unwinding of consumer contracts following the exercise of a right of withdrawal, information duties.
When the European Commission initiated the Common Frame of Reference process, it aimed, in particular, at a revision of the acquis communautaire in the field of consumer contract law. However, such a revision has not, to date, been undertaken. The Draft Common Frame of Reference is marked by a largely uncritical attitude vis-à-vis the acquis. The same will be true, it must be feared, for the 'optional instrument' to be developed by an 'expert group' on that basis by mid-2011. The proposal for a 'horizontal' Directive on Consumer Rights submitted by the Commission in October 2008 also did not benefit from a critical revision of the acquis. The authors of the present paper have attempted to remedy this deficiency by an investigation of the key issues involved: the proper scope and effectiveness of mandatory law, the policing of not individually negotiated unfair contract terms, rights of withdrawal, the unwinding of consumer contracts following the exercise of a right of withdrawal, information duties. This paper presents the main conclusions of a more comprehensive German study in English and in the form of 52 propositions, grouped by subject matter and elucidated, in most cases, by brief comments. We thus hope to initiate a discussion on the reform of European consumer contract law going beyond a harmonizing generalization of individual rules, which emphasizes intellectual coherence as well as consistency of concepts, policies, and evaluations. A particular focus is on rational justifications for consumer contract rules and on how such rules should be formulated in order to serve the economic purposes they are intended to serve.
