The Position of Small and Medium-Sized Enterprises in European Contract Law

Abstract

The Position of Small and Medium-Sized Enterprises in European Contract Law: An Introduction Marco B.M. Loos and Ilse Samoy 1. Introduction: the development of a consumer policy 2. Protection of other parties lacking bargaining power? 3. Recognition of the position of weaker commercial parties in European B2B contract law 4. The Draft Common Frame of Reference and the proposal for a Common European Sales Law 5. A brief description of the papers in this book Chapter 1. SMEs in the Common European Sales Law Fernando Dias Simoes 1. The importance of SMEs for the European Market 1.1. SMEs and transaction costs 1.2. SMEs as the weaker party 2. The personal scope of application of the Proposal 3. Does the Proposal protect the interests of SMEs? 3.1. The reduction of transaction costs 3.2. SMEs as the weaker party: from mandatory rules to standard contract terms 4. The development of 'European model contract terms' 5. Final remarks Chapter 2. Can the Common European Sales Law do without the definition of an SME? Sonja Kruisinga 1. Introduction 2. Background of the Regulation on CESL 3. The definition of an SME in the Regulation on CESL 3.1. Defining an SME Contents 3.2. Questions which were left unanswered concerning the definition of an SME 4. A comparison: the definitions of small and large enterprises in private law in the Netherlands 4.1. Large companies within the meaning of Article 6:235(1) of the Netherlands Civil Code 4.2. Large companies within the meaning of Articles 2:153 and 263 of the Netherlands Civil Code 5. Concluding remarks Chapter 3. A Consumer Law for Professionals: Radical Innovation or Consolidation of National Practices? Pieter Brulez 1. Protecting the weaker party through detailed legislation. 1.1. No detailed legislation specifically designed for B2B transactions 1.2. Extending the consumer notion 1.3. Criticism 2. Protection through general principles 2.1. Good faith, fair dealing and mutual cooperation 2.2. Good faith in the pre-contractual stage 2.3. Good faith in the contractual stage 3. P.CESL accepts procedural fairness and contextualization in a B2B context Chapter 4. The CESL and its Unfair Terms Protection for SMEs Josse Klijnsma 1. Introduction 2. The case for unfair terms protection for SMEs 2.1. An internal market argument 2.2. A weaker party protection argument 3. Unfair terms protection for SMEs in the CESL 3.1. Definition of the consumer and mixed contracts 3.2. The unfairness test of Article 86 CESL. 4. An autonomous interpretation as the way forward? Chapter 5. Unfair Terms in Contracts Between Businesses A Comparative Overview in Light of the Common European Sales Law Sander Van Loock 1. Introduction 2. SMEs as a novel concept in European contract law 2.1. Definition 2.2. Criticism 3. Theory of unfair contract terms 3.1. Benefits and risks of standard terms Contents 3.2. Justification of judicial control 3.2.1. Abuse of bargaining power 3.2.2. Transaction costs. 4. Conceptual analysis of unfair terms. 4.1. European Union: Unfair Contract Terms Directive, DCFR and CESL 4.1.1. Unfair Contract Terms Directive 4.1.2. DCFR 4.1.3. CESL 4.2. Germany 4.2.1. Standard terms 4.2.2. Individually negotiated terms (im Einzelnen ausgehandelt) 4.3. The Netherlands 4.4. France 4.5. Belgium 4.6. United Kingdom 4.7. Conclusion 5. Judicial control 5.1. European Union: Unfair Contract Terms Directive, DCFR and CESL 5.1.1. Unfair Contract Terms Directive 5.1.2. DCFR 5.1.3. CESL 5.2. Germany 5.2.1. Content of the judicial control 5.2.2. Differentiations 5.2.3. Indizwirkung 5.2.4. Criticism 5.3. The Netherlands 5.4. France 5.4.1. Consumer law and B2B contracts 5.4.2. Modern developments and perspectives 5.5. Belgium 5.5.1. B2C contracts 5.5.2. B2B contracts 5.6. United Kingdom 5.6.1. Reasonableness test 5.6.2. Dealing as consumer 5.6.3. Recommendations of the Law Commissions 5.7. Conclusion 6. Conclusion Chapter 6. Harmonisation of Rules on Business-to-Business Marketing Practices: A Critical Analysis of the MCAD Report Bert Keirsbilck 1. The current European law on unfair commercial practices 1.1. UCPD 1.2. MCAD 1.3. Critical analysis of the dualistic approach 1.4. Consultation on the MCAD 2. Possible options for the further harmonisation of rules on business- to-business practices 2.1. Minor revision of the MCAD 2.2. Substantial revision of the MCAD so as to mirror the UCPD 2.3. Substantial revision of the UCPD so as to integrate the MCAD 2.4. Maintaining the status quo 3. Conclusion and epilogue on the need and desirability of harmonisation of rules concerning unfair business-to-business trading practices