Der Vorschlag für ein "Gemeinsames Europäisches Kaufrecht" – Kompetenz, Subsidiarität, Verhältnismäßigkeit– Stellungnahme für den Rechtsausschuss des Deutschen Bundestages (The Proposal for a Regulation on a Common European Sales Law – Competence, Subsidiarity, Proportionality – A Report to the Committee on Legal Affairs of the German Bundestag)
14 Pages Posted: 5 Feb 2012 Last revised: 7 Feb 2012
Date Written: February 2, 2012
Abstract
On 11 October 2011, the European Commission published a Proposal for a Regulation on a Common European Sales Law (CESL). This Regulation shall be applicable on cross-border sales contracts between a business and a consumer and between two businesses if at least one of them is a small or medium-sized enterprise. With the proposal, which is based on Article 114 Treaty on the Functioning of the European Union (TFEU), the European Commission tries to avoid the favourability principle of Art. 6 (2) Rome I-Regulation when it comes to the choice of CESL as the applicable law. According to Art. 6 of the protocol on the application of the principles of subsidiarity and proportionality a national Parliament may, within six weeks from the date of transmission of a draft European legislative act, issue a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity. After a hearing of experts in the Committee on Legal Affairs, the German Bundestag issued such a reasoned opinion on 1 December 2011. The present report was presented to the Committee during the hearing and deals with the question of the correct legal basis for the Proposal. Furthermore the principles of subsidiarity and proportionality are discussed. It is submitted that Article 114 TFEU cannot serve as a legal basis for the proposed regulation as it aims at establishing a "second regime" of contract law rather than at approximating the national laws of the EU Member States. Following the European Court of Justice's judgement in case C-436/03 on the Regulation on the European Cooperative Company (Societas Cooperativa Eurpaea), a legislative act 'which leaves unchanged the different national laws already in existence, cannot be regarded as aiming to approximate the laws of the Member States'.
Note: Downloadable document is in German.
Keywords: GEK, CESL, Gemeinsames Europäisches Kaufrecht, Common European Sales Law, EU-Verordnung
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