The EU Sales directive illustrated the need: a colleague in London, a colleague in Rome and I took the first step. We though that it was time to establish a discussion platform for the core area of the internal market process, i.e. the law of transactions or contract law in the broad sense. We believethat the task is one for all those engaged in private and commercial law and that substantial support from practice is vital.
The internal market is extremely dynamic. Today, virtually no project of business and contract law reform is conceivable without an EC law background. Despite this, a broad international discussion of the existing legal measures of the internal market is still virtually not-existant today. For new legislative acts, the European legislator often cannot rely on broad, thorough and truly international discussion and preparation in academia and circles experienced in practice. In depth discussion of the alternatives is often lacking. The same is true for the European Court of Justice. Also in practice, knowledge on the European substantive law is still weaker than on national law. Moreover, a sceptical attitude towards European private law, especially contract law, is far spread in the leading circles of national private law dogmatics, often without deeper knowledge of it. If market and firm are the two basic forms of organisation in modern economic activity one thing seems evident. The shortcomings named are still stronger in the law of market transactions, above all the core instrument, the contract, although it is this branch of the two which is common to all private law academics and practitioners. The outstanding importance is due to the fact that two thirds of crossborder commerce are already today internal market transactions and, even more important, that European contract law applies with supremacy also to purely domestic transactions. It already applies to all major financial services contracts, to standard term contracts, to the main areas of distribution chains, to the major industries (motor vehicles, computers with software, movies, media and tourism), and since 1999 also to sales and credit transfers in general, i.e. the core area of any transaction. Finding concepts for these legal measures, establishing links between these islands, seeing system and flexibility in it, harmonising the European dimension with the national systems - all this is a task of outstanding importance for all private law circles in the Community.
The outstanding importance on the one hand and the lack of an open, international discussion on the other have been the incentive for my colleagues Massimo Bianca (Rome, Università della Sapienza) and Hugh Collins (London School of Economics) and me to establish the
The first conference on the 8th and 9th of June 2001 in Rome was - in our view - very successful, as was the interim conference in Leuven on the 30th November and 1 December 2001. The Society has about 300 members already. You find more about the initiators and the support from important institutions working in the field of European private law in annex 1.
On a Community level, there are mainly some closed end groups which work on a draft for a European code which would cover above all the area of classical contract law. The Society of European Contract Law has a different con-cept. It is aimed at discussion and open and not primarily code oriented. It takes the existing European law of contracts which is already extensive as its first area of investigation: existing law, projects that are about to come into force and the realization and the form of which is more likely already.
This does not exclude that one day different drafts for a code, law of contracts, will be the object of discussion in the society. In fact, the Leuven conference named below discusses future guidelines in this respect. Moreover, the Society conceives contract law in a broad sense. Besides classical contract law in its old core areas on which the groups mentioned typically concentrate, it includes also more modern areas emerging and gaining increasing importance: financial services, distance selling, e-commerce, standard term contracts, distribution chains, media and computers and other modern services. The society also includes labour contract law, the area treated in the bulk of ECJ case law on contracts. All rules pertaining to the conclusion, the content, the change and the termination of contracts are the subject of our discussion. This may include even competition or currency law aspects. It is certainly a Herculean effort to bring concepts and, with the flexibility needed, also system to all those rules pertaining to contracts in the internal market.
The society is open to all interested circles. This was not possible for groups drafting a code. And it is conceived to be genuinely international and interdisciplinary. Nowadays, the discussion of EC legal measures on contract law is still anchored mainly in the national circles, a genuinely international discus-sion is possible only if the area is restricted to a certain extent, here contract law. If the society is not only aimed at discussing the dogmatics of European contract law but wants to foster also concepts and evaluate the status and projects, i.e. if legal policy and the impact of EC legal measures play an important role a participation of economists, sociologists and political scientists is paramount. This does not change the basically juridical thrust of the society. It is important that the discussion is not restricted to European law specialists. The substantive law aspect is so important that the national law specialists of the area need to be involved much more deeply. The society is decidedly addressed to these circles because of the lead function of Community law in all national contract law. Expertise in substantive contract law and expertise in the internal market process should be brought together. In this respect, the society has also the scope to broaden the knowledge about EC contract law and to organise seminars aimed mainly at knowledge transfer.
The aims of the initiative can be illustrated by the program of the founding conference: the idea is always to combine the discussion of a legal measure or a need of regulation with more general trends related to it. For the first conference, we chose the Sales directive of 1999 which is probably the most fundamental EC legal measure in contracts so far and dominates the national discussions now. Speakers were, among others, some of the (seven) authors of the first (international) commentary on the directive (from six member states), a commentary edited by Massimo Bianca and Stefan Grundmann, written for four editions in English, French, German and Italian and about to appear (Spring/Summer 2002). We will have the second annual conference in on "EC law of distribution and marketing" London (16th/17th May 2002) which will focus on the different types of organisation, including mainly e-commerce and distance selling (now also for financial services), and which will include intensively the new regime of competition law mainly with respect to vertical restraints. In the future, the conferences should always take place the weekend of Pentecost. In between, there has already been an interim conference, as the green paper / communication by the EC Commission on the future of contract law harmonisation or unification was published in July 2001. This is about the potential transition to a European Code, probably optional. We therefore organised, jointly with Leuven University, a discussion conference with about 25 speakers taking different positions in this issue (30th of November and 1st of December, in Leuven).
Besides the discussion platform, we currently work also on an internet information platform (including national law transformation). This platform is already structured and will be developed in core areas this and next year. Moreover, the society is aimed at fostering international publication and per-haps will edit an international periodical in this area one day.
The society is a non-profit association. Its scope is genuinely international. Its form had to be national because a European association type is not yet available. We registered it in Munich. Exit is possible at any time for the following year. Both financial support and input of thought are largely needed in this foundation period.
The initiators and some institutions supporting the initiative
Massimo Bianca is among the best known Italian civil law professors and has written the most cited treatise on civil law in six volumes, important for practice, research and even students. At the same time his orientation is international, he edited, among others, with Bonell a commentary on the United Nations Convention on the International Sale of Goods. Hugh Collins is the author of a standard text book on contracts in England (and beyond), probably the most current text book written by one author in England. He has a centre of interest in European contract law and works consistently in an interdisciplinary way. The effects of law in real life and economy are of major interest to him, this becomes evident in his recently published "Regulating Contracts". Stefan Grundmann is the youngest of the initiators and works substantially in European contract law and financial services. In 1999, he published the first of two commentaries of the whole area of internal market transaction law. Since then he edited three volumes relating to core questions in this area (system building, information and party autonomy and the Sales Directive in national law systems). He is currently working on a text book on European company law (including capital market law and taxes).
The society is supported by the important institutions of international, supranational and transnational private law, namely the directors of the Max-Planck-Institute for private international and comparative law in Hamburg (Jürgen Basedow and Klaus Hopt), of the British Institute of International and Comparative Law in London (Mads Andenas), of the Molengraaff Instituut (Ewoud Hondius) and the law faculty of the European University Institute in Florence (Christian Joerges). The society is also supported by several Justices of the European Court of Justice and National Supreme Courts.