European Contract Law and the Welfare State

Dr. Jacobien Rutgers is associate professor of Private Law at the Free University of Amsterdam.

Preface
Contents
Abbreviations
List of Contributors

Introduction
Jacobien Rutgers
1 Introduction
2 The Welfare State
2.1 The Anglo Saxon Model
2.2 Corporatist Model
2.3 The Nordic Model
2.4 Central and Eastern European Member States
3 Contract Law and the Welfare State
4 Europeanization of Contract Law
5 Europeanization of the Welfare State
6 Conclusion

Chapter 1 National Welfare as Transnational Justice? An Institutional Analysis of the Normative (In)Coherence of Europe’s Social Dimension
Floris de Witte
1 Introduction
2 The National Welfare State
3 Inherent Limitation to Europe’s Social Dimension
4 Justifications for the Development of Europe’s Social Dimension
4.1 Regulatory Justice
4.2 Union Citizenship
5 Normative (In)Coherence of Europe’s Social Dimension
6 Conclusion

Chapter 2 Patient Autonomy in Europe
Anniek de Ruijter
1 Introduction
2 Application of European Internal Market Principles to Health Care
2.1 Access to Cross-Border Health Care
2.1.2 Cross-Border Health Care Based on Regulation 883/2004
2.1.3 Cross-Border Healthcare Based on the Free Movement Provisions
2.2 Creating European Health Care Policy Through Economic Development Policy
3 Economic Rationale of the Internal Market and Consumer Protection
3.1 Consumer Autonomy
3.1.2 Information Asymmetry: Impediment to Consumers’ Informed Consent
3.2 Autonomy in the Internal Market: Consumer Choice
3.3 European Consumer: An Average Consumer
4 Informed Consent and Patient Autonomy
4.1 Informed Consent in the United Kingdom, Germany and the Netherlands
4.1.1 United Kingdom
4.1.2 Germany
4.1.3 The Netherlands
4.2 Comparison
4.2.1 Standard of Care
4.2.2 Standard Determining Duty to Provide Information
5 Conclusion: Patient Autonomy in Europe
5.1 European Internal Market as the New Health Care System
5.2 Patients as European Consumers
5.3 Conclusion

Chapter 3 Labour Law, Union Law and the Real and Alleged Impact on the Welfare State(s)
Klara Boonstra
1 Introduction
2 The Impact of the EU on Labour Law
3 EU Impact on the Welfare State, and is this Related to Labour Law
4 How has the EU Affected Collective Labour Law that is so Essential to the Welfare State?
5 Conclusion

Chapter 4 Services of General Interest, Contract Law and the Welfare State
Peter Rott
1 Introduction
2 The Acquis Communautaire in the Field of Services of General Interest
3 The EU Legal Framework for the Protection of Vulnerable Citizens
4 Services of General Interest and Welfare Models in Contract Law
5 Germany
5.1 The Constitutional Law Framework
5.2 Contract Law Mechanisms for the Protection of Vulnerable Customers
5.2.1 Price-Related Mechanisms
5.3 Protection from Disconnection and Termination of the Contract
5.4 Other Mechanisms to Support Vulnerable Citizens
6 Practical Relevance and Enforcement
7 The United Kingdom
7.1 The Constitutional Setting and General Policy
7.2 General Approach towards Vulnerable Customers
7.3 Contract Law Mechanisms for the Protection of Vulnerable Customers
7.3.1 Price-Related Mechanisms
7.3.2 Protection from Disconnection and Termination of the Contract
7.4 Other Mechanisms for the Protection of Vulnerable Citizens
7.5 Practical Relevance and Enforcement
8 Conclusions

Chapter 5 Self-Regulation in the Consumer Field: The Dutch Approach
Thom van Mierlo
1 Introduction
2 The Dialogue on GTC and Dispute Committees
2.1 How Does it Work?
3 The Dialogue on Advertising and Product Information
3.1 How Does it Work?
3.2 System Governance
4 Self-Regulation within the European Union
4.1 Advertising and Product Information
4.2 GTC and Dispute Committees
4.3 Self-Regulation in General

Chapter 6 A Comparison of the Institutional Implications of the Directive on Unfair Terms in Consumer Contracts in France and the UK
Ruth Sefton-Green
1 Introduction
2 Negotiating Fair Clauses: A Cultural Phenomenon?
2.1 Absence of Negotiations in France
2.2 Negotiation of Fair Terms in the United Kingdom
2.2.1 The OFT Helps Negotiate Acceptable and Fair Terms
2.2.2 Terms Can also be Negotiated and Modified Post Hoc
3 Going Colour-Blind: the Use of Lists
3.1 The Black List of Prohibition and the Grey List of Presumption in France
3.1.1 The Whiteness, or Greyness, of the List Before the Reform of March 2009
3.1.2 Critical Evaluation: Lack of Enforcement Bite
3.2 Use of the Grey List in the United Kingdom
4 Post Hoc Regulation and Enforcement Procedures
4.1 Eliminating Unfair Terms Though Recourse to the Courts in France
4.1.1 Collective Preventative Actions to Stop Unfair Contract Terms Being Used
4.1.2 The Spirit of the Law: Denounce and Punish
4.2 Enforcement Inside and Outside the Courts in the United Kingdom
4.2.1 The Use of a ‘Test Case’ by the OFT
4.2.2 Super Complaints
4.2.3 An Example of Alternative Dispute Resolution: The Financial Ombudsman Service
5 Conclusion

Chapter 7 The Institutional Implications of the Unfair Terms Directive in Poland
Rafa? Ma?ko
1 Introduction
2 Poland and the Welfare State
3 Consumer Protection in Poland
4 Implications of the Unfair Terms Directive
4.1 Introduction
4.2 Scope Ratione Personae of Protection: the Definition of Consumer Made Narrow
4.3 Scope Ratione Materiae of Protection
4.4 List of Unfair Terms: Gray not Black
4.5 Incidental Review of Unfair Terms by Ordinary Courts
4.6 Abstract Review of Unfair Terms by the Consumer Court
4.7 Group Actions as a New Procedural Form of Consumer Protection
5 Conclusions

List of Cases