Date: 12 Jan 2012

Das Konzept des Verbraucherschutzes in der Machbarkeitsstudie für das Optionale Instrument

Abstract

The personal scope of application of the intended Optional Instrument (OI) is limited to business to consumer and business to business contracts. For the former relationship it is always necessary that the business takes the position of the seller or service provider. This article examines the provisions of the Feasibility Study of May 2011 in the light of the question whether the content of the rule itself justifies the narrow scope of application and the pure business or consumer nature of these provisions. In the parts up to performance and non-performance of the contractual obligations the vast majority of the rules is formulated in the style of general civil law provisions. The extension of the scope of application to personal constellations which are not covered by the OI should not be too difficult. In some particular cases there is no sufficient justification for the divergences between the consumer and business provisions. In the part relating to performance and non-performance the differences between the regulation of business to business and business to consumer contracts are wider but also controversial. A unification of these rules is desirable. The extension of the scope of application of the OI is also required in order to ensure the parties’ certainty as to the effectiveness of their choice of the instrument. In cross-border contracts it is not easy to determine whether the other party can be qualified as a business or a consumer. Such difficulties would particularly occur in cases of selling platforms. If the parties did not have the security that the adoption of the OI was successful, they would rather look for other options. Hence, the European legislator should not try to confine the personal scope of application too narrowly. It should be easy to extend it and it is probably necessary for the success of the OI.