Form and Substance in the Reception of EC Directives into English Contract Law

Abstract

: In this paper, the author explores some of the difficulties facing English lawyers in implementing EC directives in the area of ‘contract law’ and compares them with those facing lawyers in systems with codified private laws. To do so, he identifies four significant features of the EC contract law directives: the ambiguity of what is meant by ‘contract law’ for this purpose, there being a contrast between a traditional sense of the law governing the rights arising in a contracting party against the other and ‘policing measures’ in relation to the behaviour of contracting parties; the special nature of the regulation which the directives require and the relative absence of ‘general clauses’; the relationship of the contract law rules of the directives to national law distinctions between public and private law; and the particular, ‘European’ nature of the uncertainty which affects many of the concepts which the directives use. The author explains how these features affect the form of the reception of the directives into national laws, identifying differences between laws where codification is important and English law where it is all but absent. However, English law shares with codified laws a number of substantive problems in implementing contract law directives, notably, in terms of the question whether the rules and concepts which the directives use can be melded with existing national legislative rules (often as interpreted by national case-law) so as to achieve a true integration (and not a mere implementation) of the EC regulation into national laws. In dealing with these problems, the minimum nature of the harmonisation required by many contract law directives allows Member States to extend a directive's scheme in a way which permits it to fit into national law more harmoniously, but even where this is so, sometimes the substantive strategy of a directive clashes with much more general strategies of their national laws. Finally, the author sees the clearer definition of concepts used by the directives as contributing significantly to the resolution of some of the problems which he identifies, this allowing Member States a better sense of how to go about the true integration of the regulation which the directives require with the surrounding regulation of national laws.