PELSC
Construction v. Consumer
Law
IUS COMMUNE – Workshop Contract Law –
29/11/2007
Benoît KOHL
LL.M. Cambridge
Lecturer University of Liège Solicitor (Stibbe Brussels)
Background
“Recent” development of a specific need to
protect the owner against the
contractor when the building has to be
erected for the occupation of the
owner
Emergence of the ideology of home
ownership
(cfr Lord Diplock : “(…) the emergence of
a property-owning, particularly a
real-
property-mortgaged-to-a-building-society-owning, democracy”)
(Pettitt vSome countries of the EU
have developed specific
rules : ex.:
Belgium : Loi Breyne (1971)
France : The « Code de la Construction et de
l’Habitation” : contains specific protection to the individuals in the house building industry
Netherlands: “Nieuw Burgerlijk Wetboek” has been completed by a Statute dated June 5, 2003 (Title 7:12)
Italy « Disposizioni per la tutela dei diritti patrimoniali degli acquirenti di immobili da costruire » (20
Why focus on consumer
construction law ?
Compare with Harmonisation of
« classical » construction law :
Examples :
-
C.E.C. Jansen’s Thesis
-
PELCS
-
Works of the GAIPEC
Problems :
A complete harmonisation of “classical”
Construction law would suppose that the
Member States reach compromises on
several points of law that go to the roots
of the Private Law of each legal system
(ex: binding character of the offer; the need for consideration; the pre-contractual duty to inform; the reconciliation of the liability in Tort and in Contract; the damages for
→
Such works are welcomed BUT
it seems unlikely that the
works currently undertaken
could lead in the short or
medium term to practicable
or concrete results.
See the Commission’s opinion
(Action Plan 2003):
“Further reflection on the
opportuneness of non-sector
specific measures such as an optional
instrument in the area of European
contract law »
→
Postponement sine die of the
adoption of a European Civil
Code
(cfr. M.B.M. Loos, Spontane harmonisatie in
Then : Let’s focus on
consumer law. Arguments
:
1. Emergence of cross-border
transactions in this field
2. Development of national
protections in the house
construction sector : Coherent or
not ?
3. Dissociation between
consumer construction law
and classical construction
law is possible.
>< PELSC’s approach
→ preliminary focus on consumer
protection : already been
suggested by the EU: See a.o.
- Mathurin report (construction)
- Mc. Millan Scott report
(crossborder real estate
transactions)
Does such an approach comply with the
provisions of the Green Book on the
Review consumer acquis ?
EU Commission suggests horizontal
measures rather than vertical ones.
BUT several issues regarding the
consumer protection in the
construction sector are too specific
to be caught by a general measure
(such as the Unfair Commercial
See G. Howells : detailed rules
« can be valuable in
targeting particular
practices and providing
clear guidance on what is
acceptable »
(G. Howells, « The Rise of European Consumer Law. Whither
National Consumer Law ? », Syndey L.R., 2006, pp. 63 ff., at p. 80)
EU Consumer law : content
de lege ferenda
Scope of the harmonisation :
“Consumer” : private individual who wishes to become the owner of a new home (house or flat)
constructed by a professional, regardless of the
type of contract, institution or other legal
method which may be used to achieve this result. I.e. : Construction contract, sale “off plan” (or “sleutel
Need to take in account, not
only Member States’
legislative Acts, but also
standard contracts
Importance of Self Regulation in some
countries
England : NHBC (+ JCT Forms ?)
Netherlands : GIW (+ UAV ?)
Consumer’s rights.
Short overview
Formation of the contract
-
Advertisement : Acquis
communautaire
-
Distance Selling + Door to door :
idem
(note : need of an extension to the transfer of immovable property)