Legal Challenges In Respect Of Legal Approximation

Legal Challenges in the fields of contract law and competition law connected with the approximation process and modern policies

(a paper at the conference of Perspectives of Legal Approximation Process in Central вЂ" Eastern Europe in 2000)

Preface

In this essay I would like to outline the update reforms requested by the legal harmonization and the process of changing in the fields of contract and competition law. By comparing these two fields of our legal system on the one hand I want to render perceptible their differences and the different requirements of the harmonization, on the other I want to present a successful solution of the legislative challenges and вЂ" in my point of viewвЂ" a less successful one.

First of all I must underline that these challenges are based on not only legal but economic and social changes and processes as well. The revision of the former Hungarian regulation was necessitated partly by the metamorphoses in the structure of economy, society, namely by the changeвЂ"over to market economy. And partly by the harmonizational expectations in the process of the enlargement, which were formulated in many documents. For instance in the Association Agreement (signed in 1991, promulgated in 1993), in the criteria of Copenhagen(1993), in the so-called White Book (1995), in Agenda 2000 and in the Country Report of the Commission (1997).

The duty to approximate to the acquis communautaire

In the Association Agreement the obligation of Hungary was decreed in the spirit of the “soft harmonization” philosophy. In the scope of a comprehensive approximation вЂ"program in a reasonable possible manner and extent should be harmonized the Hungarian legal system in its particular fields (mainly in commercial law, in environmental protection, administrative law, consumer protection etc.) The soft harmonization is not the aim of the legal approximation, but the basement of every accession (the essential minimum). This approach of the question is supported by the criteria defined in the Summit Meeting in Copenhagen: 1) functioning and steady democracy 2) functioning market-economy and competitivity in the internal market of the Community 3) the ability to take on the obligations connected with the membership status, which is the most important in legal respect. It means, that Hungary should be ready and capable by the date of the accession to take on the whole legal system of the EU (which involves not only the adequate transposition of the political, economic and monetary purposes and the acquis but the adequate application of their as well). In similar sense formulates the 2358/96 Gov. Dec., which states that Hungary should be ready to transpose the whole acquis and to apply it. So the soft harmonization -obligation of our country must be understood extending: by the date of the accession the legal approximation will have been finished, so that the entrance can go smoothly.

Consumer protection policy

In the law of contracts the essence of these changes is the triumphal march of the consumers` protection policy. We have been able to talk about the classical form of the safeguarding of consumer interests since the 1960s and 70s, when the consumers’ rights became quasi-fundamental rights (3rd generation of human rights) in the welfare states (USA, Sweden, Switzerland) and got into the Constitutions of many states.

The home of the consumer protection policy is the USA, where the big breakthrough happened at the beginning of the 60’s, when some dangerous mass product (e.g. medicines) were put on the market and caused disasters because of their qualitative and safety deficiencies. After these scandals the President, John F. Kennedy lift the consumer protection to the level of state policies in his speech before the Congress in 1962 . The president’s statements established the system of consumer rights: right to know, right to be safe, right to choose, right to be heard. Now these rights are known as the “Bill of Rights” of the consumer societies.

In Europe the career of the consumer protection started in the 1970s, when the Scandinavian welfare states (with their specific social market-economy ) strengthened and the first scandals of medicines broke out in the continent (e.g. Contergan-catastrophe in 1976) causing the first product liability acts in the field of pharmaceutical products (e.g. in Germany). The first consumer protection acts were born in the late 70s and in the 80s.

Not only the states but also the Community has realized the importance and the necessity of the safeguarding of the consumer interests. The consumers’ rights were not written down in the Treaty of Rome (or in other founding treaty of the ECC), although the aims of the Community would have required it. To make up for what ones has missed the former Council of the European Union accepted the first action program in consumer protection, declared the fundamental rights of consumers (it is the so-called Magna Charta of consumer rights in the common market) like in the USA and gave out the plan of measures. In 1985 was passed the Single European Act, which included for the first time the consumer protection as a common policy integrating it into the basic principles of the ECC. Thereafter was introduced the new 100aÐ'§ of the Treaty of Rome, which gave a new impulse for the consumer protecting legislation. The next stage (in the evolution of consumer protection in Europe) was the Maastricht Treaty in 1992, when the questions of the consumer protection was hoisted to the level of the charters by the new 153.Ð'§ of the Treaty of Rome). The passing of these articles have made possible to bring an autonomous regulation into existence and introduced the theory of minimal harmonization. It means, that the memberstates can initiate stricter rules on behalf of consumers. So the EU directives are only minimum standards with one-sided cogency (the permission to diverge from the directives in favour of consumers, but prohibition of an unfavorable regulation).

Challenges in the law of contracts

The contractual rules are historically based upon the co ordinate relation of the parties, which is formulated in the principle of contractual liberty . But nowadays this relation has been changed in the cases of consumers’ deals, because the consumers have become a sub ordinate