Party Dispositions and EU Consumer Contract Law

• Applicant: Professorin Dr. Susanne Gössl
• Subject Area: Private Law
• Term: from 2021 to 2022
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 458643923

The study deals with the question how national procedural law should respond to the consumer contract law adopted by the EU. There is a tension between these two legal areas: one fundamental principle of contract law is party autonomy, which allows the parties to take responsibility for their own legal relations. However, this party autonomy is restricted by EU directives in the business-to-consumer (B2C) relationship in order to compensate for an assumed unequal negotiating position of the consumer and, moreover, to promote the internal market. In order to enforce his rights, the consumer depends on procedural law, which has remained mainly unaffected by EU law. Whereas consumer contract law regularly assumes an imbalance requiring compensation, German procedural law assumes that the negotiating partners, even in a dispute between consumers and businesses, are – in principle – equally strong. The work emphasises intra-disciplinary, i.e. from the point of view of civil, civil procedural, EU and constitutional law, that and how German procedural law has to be applied in an appropriately adapted way. In addition to court proceedings, it deals with all other proceedings that lead to an enforceable title and are based on a party agreement - here the unequal negotiating position can become relevant in the proceedings and in the party agreement itself and, thus, require adjustments.First of all, the framework of party autonomy in German law is worked out, i.e. the constitutional and procedural barriers. Subsequently, the work is devoted to the requirements of Union law: To what extent does substantive law conflict with party agreements? Contrary to traditional German law, EU law does not only focus on the protection of consumers but also intents to harmonise the law to promote the internal market through predictable and clear rules. As a result, EU law impedes to set aside the rules even if the consumer does not need their protection. From EU primary law, subsequently, follows the Member States‘ obligation to implement these two objectives in procedural law.These principles are then implemented into the German legal system, focusing on court and arbitration proceedings, court, arbitration and attorney settlement and notarial deed. The result is a system of Europeanised German procedural law that is based on an obligation to provide information by the state authorities, in particular the judge. This obligation exceeds a similar obligation in purely national law. Union law requires judges, arbitrators and other state bodies to ensure that Union law is always examined and that the parties are given the opportunity to take decisions autonomously.

• DFG Programme: Publication Grants