International and European Law

Universal effect of the eco

Art. 2 - establishes the law that is to be applied even if it is not from a ec ms

• Example 4.2 page 82

Freedom of choice

Art. 3 - parties decide which law is applicable when they re from different countries (preferably in writing)

Nationality not deciding. Place of residence is

Parties cannot make their contract INTERNATIONAL

Applicable law in the absence of choice

Art. 4.1 lists applicable laws:

• 1a. Sales contract?: seller's residence

• 1b. Services contract?: provider's residence

• 1c. Immovable property: wherever property is located

Contract for the Carriage of Goods

Art. 5 - law applicable at the moment contract was concluded:

• the carrier's place of business (conditions: same place as loading goods/delivery address of goods/place of consigner)

• Place of delivery as agreed by the parties

• example 4.7 p. 85

Insurance contracts

Art. 7 - to the extent that the applicable law has not been chosen by the parties, the insurance contract shall be governed by the law of the country where the insurer has his habitual residence

Individual Employment Contracts

Art. 8 - applicable law is the law of the country where the employee works

Art. 8.3 - when employee works in different countries, then the law of the country of employer applies

ECO: 4 steps again

Step 4: applicable law in the absence of choice

Art. 4-1a: sale of goods

Art. 4-1b: services

Art. 4-1a: immovable property

Art. 4-2: otherwise, the law of the country of the party that has to effect the most characteristic performance

Content Law-CISG

Q1 - what court of law has jurisdiction? (Eex)

Q2 - what law has to be applied (eco)

Q3 - what is the content of the applicable law? (CISG)

CISG applicable? Art. 1 and art. 2

Obligations of the seller

Art. 30 CISG - delivery of goods

Where? Art. 31 CISG: contract at a buyer's disposal

When? Art. 33 CISG:

Contract within reasonable time

Conformity of the goods? Art. 35 CISG: goods must be conform the contract: quality, amount

Third party claims? Art. 42 CISG GOODS must be free of IPR claims

Agreements and delivery

Seller's breach of contract!

Options for the buyer if she seller doesn't perform well:

Art. 46 CISG: require performance (delivery, substitute goods or repair)

Art. 49 CISG: declare the contract avoided!!!!!!!

(Effects art. 81/84 CISG)

Art. 50 CISG: reduce the price

Art. 74 CISG: claim damages (also 75)

Options for the seller

Buyer's breach of contract!

Art. 61 CISG: Options for the seller if the buyer doesn't perform well:

Art. 62 CISG: require to pay the price "an additional period of time can be fixed"

Art. 64 CISG: declare the contract avoided!!!

Art. 74 CISG: claim damages

EC regulations -> directly applicable

EC Directives -> not directly applicable

Ms needs to implement  transfer

EC Decision -> specific parties

EU: Custom Union. Internal Block.

Freedom of goods:one of the cornerstones of the Internal Market (Single Market)

To ensure products can move freely across the borders of the Member States

Objective: elimination of barriers to intra-EU movement of goods.

TFEU

ART. 28: elimination of custom duties and charges (financial)

 ... Prohibition between MS of custom duties on imports and exports... And prohibition of all charges having equivalent effect...

Art. 34&35: quantitative restrictions (non-financial)

"Quantitative restrictions on imports/exports...shall be prohibited between MS"

Bans/quotas

Measures having an effect equivalent (MHEE)

European Court of Justice, "Dassonville formula" (case 8/74):

"All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to a quantitative restriction.

Measures having equivalent effects: 2 types

Distinctly applicable : measures discriminate between domestic and imported products , thus apply ONLY to IMPORTED products (inspections f.e)

Indistinctly applicable: applies to both domestic and imported products in the same way. (Italian law applying to foreign and domestic bread f.e.)

Cassis de Dijon: the rule of reason to justify indistinctly applicable MHEE

Four conditions:

1. -EC Regulation is not available
2. -measure is indistinctly applicable
3. -national measure is proportionate
4. -national interest protected must be of sufficient weight

TFEU: art. 36- to justify distinctly applicable MHEE

When does a holder

IPR - intellectual property