Commentary on §§ 305-306a and § 310 of the German Civil Code: Münchener Kommentar zum Bürgerlichen Gesetzbuch, Volume 2 Law of Obligations General Part, 5th Edition, Munich 2006
The most recent edition of the Münchener Kommentar, edited by Jürgen Basedow, takes account of two significant legal developments in its commentary on §§ 305-306a and § 310 of the German Civil Code (BGB).
1. The first matter addressed by the commentary is an analysis of European harmonisation occurring as a result of EC Directive 93/13 of 5 April 1993 on unfair clauses in consumer contracts. Namely, admittance of 10 new Member States on 1 May 2004, called for an overview and update on the implementation of 93/13/EEC into the law of the other Member States. The so-called “Copenhagen Criteria” from June of 1993 obliged the candidate nations to adopt the acquis communautaire. Corresponding association agreements had already been concluded with Malta and Cyprus in the 1970’s. Since that time all 10 Member States have incorporated 93/13/EEC into their national law. Implementation of 93/13/EEC exhibited a variety of systematic differences in the new Member States as well. Thus, the limits of the Directive as an instrument of harmonisation are clearly shown.
Furthermore, 93/13/EEC jurisprudence emanating from the European Court of Justice since 2001 remained to be incorporated. In that time the ECJ was appealed to on 10 occasions; to date 9 of those cases have been concluded. Definitive guidelines for collaboration between Community judges and national courts have resulted from the decision in Freiburger Kommunalbauten GmbH ./. Hofstetter (Dec. 1.4.2004, Case C-237/02). In this decision the Court outlined the division of tasks between the ECJ and the national courts with regards to the application of the consumer clause Directive. Specifically, it is the role of the Court of Justice to “interpret general criteria used by the Community legislature to define the concept of unfair terms”; however, it should not rule on the application of these general criteria to a particular clause. It is only when the unfairness of a clause is apparent without further reference to both the circumstances surrounding the conclusion of the contract and their interaction with national law that the Court of Justice will take it upon themselves to determine if a clause is unfair.
2. With the 26 November 2001 revision of the law of obligations (“Gesetz zur Modernisierung des Schuldrechts”), the substantive content of the law on standard contract terms (AGB-Rechte) as well as the provisions on the scope of application regarding the person or subject matter affected have been moved to a new Section 2 of the general law of obligations (§§ 305 to 310). Four years after the implementation of these revisions, analysis of the resulting jurisprudence and literature was in order. The need to address the initial decisions of the Federal Labour Court as to the AGB-Rechte represents a good example since henceforth the legal provisions of the AGB are applicable to employment contracts as well. As with preceding editions, the effects of 93/13/EEC are thoroughly taken into consideration in the commentary’s treatment of national regulations.
1. The first matter addressed by the commentary is an analysis of European harmonisation occurring as a result of EC Directive 93/13 of 5 April 1993 on unfair clauses in consumer contracts. Namely, admittance of 10 new Member States on 1 May 2004, called for an overview and update on the implementation of 93/13/EEC into the law of the other Member States. The so-called “Copenhagen Criteria” from June of 1993 obliged the candidate nations to adopt the acquis communautaire. Corresponding association agreements had already been concluded with Malta and Cyprus in the 1970’s. Since that time all 10 Member States have incorporated 93/13/EEC into their national law. Implementation of 93/13/EEC exhibited a variety of systematic differences in the new Member States as well. Thus, the limits of the Directive as an instrument of harmonisation are clearly shown.
Furthermore, 93/13/EEC jurisprudence emanating from the European Court of Justice since 2001 remained to be incorporated. In that time the ECJ was appealed to on 10 occasions; to date 9 of those cases have been concluded. Definitive guidelines for collaboration between Community judges and national courts have resulted from the decision in Freiburger Kommunalbauten GmbH ./. Hofstetter (Dec. 1.4.2004, Case C-237/02). In this decision the Court outlined the division of tasks between the ECJ and the national courts with regards to the application of the consumer clause Directive. Specifically, it is the role of the Court of Justice to “interpret general criteria used by the Community legislature to define the concept of unfair terms”; however, it should not rule on the application of these general criteria to a particular clause. It is only when the unfairness of a clause is apparent without further reference to both the circumstances surrounding the conclusion of the contract and their interaction with national law that the Court of Justice will take it upon themselves to determine if a clause is unfair.
2. With the 26 November 2001 revision of the law of obligations (“Gesetz zur Modernisierung des Schuldrechts”), the substantive content of the law on standard contract terms (AGB-Rechte) as well as the provisions on the scope of application regarding the person or subject matter affected have been moved to a new Section 2 of the general law of obligations (§§ 305 to 310). Four years after the implementation of these revisions, analysis of the resulting jurisprudence and literature was in order. The need to address the initial decisions of the Federal Labour Court as to the AGB-Rechte represents a good example since henceforth the legal provisions of the AGB are applicable to employment contracts as well. As with preceding editions, the effects of 93/13/EEC are thoroughly taken into consideration in the commentary’s treatment of national regulations.