Band 21, Heft 1

This article starts from the assumption that after the landmark decision of the European Court of Justice in Dieselgate of 2023, the relationship between (European) Contract Law, more broadly Private Law, and Regulation has to be revisited – in many ways. It is just as revolutionary for the whole of public good regulation as Courage was for the sub-area of antitrust law in 2001 (which led to the highly important Antitrust Damages Directive). The article tries to explain: that contract law and company law largely run in parallel, as they are the two prime fields of party autonomy, of shaping the economy and hence also of broad public good regulation; and that the development was from a primarily internal market oriented model (black box) to a more participatory model (red box) to one which increasingly gives public autonomy its equally important role besides private autonomy (green box). It sees this development in legislation, case law, but importantly, also in theory: to reach increasingly the Habermasian state of equal importance of private autonomy and public autonomy. This red thread has been little developed in literature even for legislation and case law, but certainly for underpinning social sciences and philosophical theory. Sustainability regulation – both social and ecological – is at the heart of this development. With this background, the article rather pleads for an integration of the two poles – than for a separation – and clearly favours a view, which would allow for private party claims whenever there are identifiable victims and harm (no superiority of the public good over private compensation). Case studies try to deepen these views in certain selected and paradigmatic areas: from regulation of consumer credit, via unfair terms to sales agreements.5

In Novo Banco SA – Sucursal en España and Others v C F O and Others, the Court of Justice of the EU held that ‘consumer protection is not absolute’ but may be limited by the Union’s general interest in maintaining financial stability and preventing systemic risk. While the idea that consumer protection is not absolute is not new, the Court’s specific reasoning in this case marks a notable departure from earlier rulings, such as Gutiérrez Naranjo and Bank M, where it dismissed similar arguments when interpreting EU consumer law. The Court’s position in Novo Banco appears to be informed by unique legal and institutional circumstances – specifically, the reorganisation measures adopted by a national central bank for a failed bank. Nonetheless, the judgment signals a more constitutionally holistic approach to consumer protection and suggests a pathway towards a more balanced view of consumer protection contextualised within the EU’s constitutional framework.

In the context of mergers & acquisitions (M&A) the seller and the buyer are engaging in a process called due diligence, during which information regarding the acquired company is disclosed. Usually this takes place through the creation of a data room by the seller and the uploading of documents there. A critical question here is how this process interacts with the seller’s duty of disclosure, namely the duty to disclose to the buyer material facts and issues related to the subject matter of the negotiated contract. Recently, this matter was addressed by the Federal Supreme Court of Germany (BGH). In its judgment the BGH takes the view that the extent to which the seller is performing his duty of disclosure through due diligence must be assessed by taking account of the individual facts of each case. This paper is analyzing the BGH’s judgment and provides a critical approach on certain positions adopted by the court. Finally, it examines some open issues that were not addressed by the BGH and proposes their solution in light of the BGH’s judgment.

This article provides an overview of the most relevant cases decided by the Court of Justice of the European Union concerning contract law. The present issue covers the period between the beginning of July 2024 and the end of December 2024. Out of a total of 272 judgments decided in this period, 57 had a contract law dimension.