Service Contracts in European Private Law and Croatian Law

Abstract

Importance of service sector in the economy of the EU is huge since it constitutes 70% of the EU GDP, with tendency of increase in share. On international level, regulation of economic movement of services in substantial terms has been present since 1995 and entering into force of the General Agreement on Trade in Services (GATS). Regulation of services in EU public Law is present since the Treaty of Rome and it has been long established both in the acquis and in the judicial practice. The freedom of movement of services is guaranteed by the Treaty of Lisbon as part of the four fundamental freedoms necessary for obtaining of the internal market. The Court of Justice of the EU has developed rich case law in the area of freedom of movement of services, not only by applying experiences from freedom of movements of goods case law, but also with new interpretations specific to movement of services like in the cases Walrave and Koch, Luisi & Carbone, Wirth, Deliege, Maruko etc. Services Directive of the EU has bring new tool for regulation of intra-community movement of services in the secondary law.This strong development of regulation of services in the public law was not, and to a certain extent, is not, accompanied by the equal developments in the area of private law (and contract law in particular). The Principles of European Contract Law Initiative (PECLI) has made substantial attempt in unification of service contracts with Principles of European Law on Service Contracts (PEL SC). This attempt goes beyond unification in terms of codifying existing common cores of national private laws; it creates new model rule quite distinguishable from existing contract regulations in member states. PEL SC has general provisions applicable for service contracts in general and subsequently gives model rules for specific service contracts (according to PEL SC autonomous classification): construction, processing, storage, design, information, and treatment. Creators of the Draft Common Frame of Reference (DCFR) have accepted the PEL SC as basis for service contracts in DCFR, with certain variations.Proposals for unification of service contract regulation made within PEL SC and DCFR are the main subject of this paper. Authors are detecting a tendency to shift from the public law dominated regulation of services to a more mixed approach where harmonization of private law between member states of EU emerging is next logical step. The last part of the paper deals with Croatian law regulation of services in general and service contracts in particular.