31.1.2011 klo 08:10

Consultation on the Green Paper on a European Contract Law / COM (2010) 348 final

European Commission
Directorate General Justice

With reference to the consultation Federation of Finnish Enterprises states the following:

The basic principle and backbone of contract law and all contracting is the freedom of contract which consists of several elements that are all of great importance. These elements are for instance the freedom to choose your contracting party, freedom to enter (or not to enter) into a contract, ab-sence of formal requirements and freedom to decide the content (terms) of the contract. The regulation of contracts and contracting is based upon the above-mentioned principle of freedom of contract but also on an extensive national legal praxis instead of written law.

The elements of freedom of contract and legal praxis should not be inter-fered unless it is absolutely necessary. Some of the instruments (ie. option 6) proposed in the Green Paper would unnecessarily constrict the freedom of contract and therefore cannot be supported. In addition, new binding legislation would create legal uncertainty and confusion whether or not the national legal praxis is still valid. The Green Paper does not contain con-crete evidence nor give examples of the problems in the present situation that would constitute the need for a unified European Contract Law (espe-cially in b-to-b transactions). Moreover from the consumers’ point of view the relation between the proposed instruments in the Green Paper and the Commission’s proposal for a Consumer Rights Directive remains unclear.

Consequently the Federation of Finnish Enterprises does not support any legally binding or semi-binding instruments to be introduced. We support, however, the publication of the results of the Expert Group (option 1) which could be useful for further education as stated in the Green Paper.

Finally it must be emphasized that there are specific problems in the mar-ket related to the contract law and contracting that should be attended to for the benefit of SMEs. These are, for example, unfair commercial practices and even scams that particularly target micro enterprises and sole traders since they lack the needed protection (in comparison to consumers). These issues, however, do not require European level contract law but well planned, assessed and pinpointed legislation.

Federation of Finnish Enterprises

Janne Makkula
Chief of Legal Affairs