Volume 15, Issue 1

The awareness that consumer over-indebtedness is a problem which needs to be tackled through specific measures most clearly emerged at the end of a period in which increased availability of retail financial services was presented as a means to promote consumers’ welfare. While, on the one hand, over-indebtedness is regarded as a problem to be counteracted, European law and policy, on the other hand, promote indebtedness, leading to a fragile equilibrium between opposing purposes which permeate the regulatory framework. How can the two objectives be reconciled, allowing for well-ordered development of a credit-based economy in which debtors in financial trouble are not left behind? This paper suggests the necessity of taking a holistic approach to over-indebtedness, starting from the assumption that, rather than being the manifestation of individual inability to properly deal with finance, the phenomenon is inherent to a credit economy and that modern law must therefore tackle it systematically through a combination of measures: private and public, contractual and non-contractual, preventive and curative, national and supranational. While articulating a critique of some of the rationales underlying ‘debt law’, the paper highlights the necessary interrelation between the possible legal strategies against household over-indebtedness and the need to coordinate them in order to reach an adequate level of protection.

Against the background of economic globalization, sustainable development has attracted increasing attention. Given the boundary limits of jurisdiction, national legal systems are often insufficient to promote sustainability on a transnational level. Intergovernmental agreements and the private self-regulation are at play to fill the gap. As an effective instrument of the latter, sustainable companies’ certification assesses the sustainability of the company as a whole rather than evaluate particular products or services. Although private certification schemes vary greatly across different countries, they are all based on contracts. Three parties are involved in the certification regime, namely certification bodies, companies, and third parties such as customers as well as investors. There are different legal relationships between each two of them. In the case of misleading certification, the German Civil Law provides different approaches to solve disputes according to the legal relationship between the parties.

The decision of the European Court of Justice (‘ECJ’) in Feniks sp z o o v Azteca Products & Services SL provides further insight into the demarcation of the head of jurisdiction in matters relating to a contract, which is contained in the Brussels I Regulation Recast, Article 7(1). In particular, the decision characterises an avoidance action, a so-called actio pauliana, as a contractual matter. As a consequence, disputes that are based on such an action can be brought in the court of the place of performance of the contractual obligation the avoidance action aims to protect. This contribution will explain that while the decision of the ECJ is seemingly in line with recent precedents, it cannot be reconciled with the principle of predictability of jurisdiction, because the decision is based on an overly broad interpretation of the concept of ‘matters relating to a contract’. The ramification of the decision is that a third party that is somehow involved in the contractual dealings of others is at risk of being sued in the place of performance of a contract with which it has a too tenuous connection.

This article provides an overview of cases decided by the Court of Justice of the European Union concerning contract law. The present issue covers the period between mid-July 2018 and the end of January 2019.