Corsi di Studio del Dipartimento di Giurisprudenza

European private law I (non attivo a.a. 2019-2020)

European private law I

Anno accademico 2019/2020

Sommario insegnamento

• Obiettivi formativi
• Risultati dell'apprendimento attesi
• Modalità di insegnamento
• Modalità di verifica dell'apprendimento
• Attività di supporto
• Programma
• Testi consigliati e bibliografia
• Note
• Moduli didattici
• Strumenti didattici

Obiettivi formativi

The course provides an understanding of the main aspects and general principles of European private law (mostly, EU consumer law as its core). The course will serve as a basis for practice or research in this broad area of law and it will offer a legal perspective also inspired by the literature from the social sciences. It will give students the opportunity to engage critically and analyse the private law dimension of European integration and markets, especially as regards the role of consumers in the single market and the process of EU market integration. Likewise, it will provide them with a contextual analysis of the role of the Court of Justice of the EU in shaping this area of law. The course will be taught through lectures, class readings, and seminar/workshop discussions. The theoretical material will be combined with practical examples for a better understanding of the unique characteristics of this area of law.

Risultati dell'apprendimento attesi

The module provides opportunities for students to develop and demonstrate knowledge and understanding, qualities, skills and other attributes in the following areas:

A Knowledge and Understanding

1. Demonstrate an understanding of the rationales inspiring the core principles of European private law and its underlying policies and norms, as well as the role of consumers and consumer protection in the process of EU market integration.
2. Demonstrate an understanding and an ability to apply knowledge of principles of European private law to a number of areas of policies and cases, as well as complex problem and essay questions.

B Cognitive (thinking) Skills

3. Demonstrate an ability to analyse the relevant law.
4. Demonstrate an ability to assess critically, where relevant, the law and policy underlying it.

C Other Skills and Attributes (Practical/Professional/Transferable)

5. Demonstrate ability to research and assemble information and materials that are relevant to the law and, in some instances, policy.
6. Demonstrate an ability to produce a structured, logical, analytical and accurately referenced synthesis of relevant materials.
7. Demonstrate an ability to present cogent written arguments

Modalità di insegnamento

EU Private Law I will be taught by way of a series of lectures, class critical readings, and seminars/workshops.

For communications, students should check their university email accounts regularly.

Modalità di verifica dell'apprendimento

The method of assessment will be based on a research paper (70 %) and on a class presentation (30%). Students will be asked to write a research-based essay on the subject. The publication of the title will be released in due course.

Students are expected to attend classes regularly as those who fail to attend classes often get lower marks than those who do attend and actively participate. It is in class where students learn subject matter and skills that they will be assessed.

Attività di supporto

see above

Programma

TIME TABLE

please see the announcement published here:

http://www.giurisprudenza.unito.it/do/avvisi.pl/Show?_id=vr9i

Course Structure

EU Private Law I will be taught by way of a series of lectures, class critical readings, and seminars/workshops. It will be taught with the presence of a visiting professor, namely Prof. Olha Cherednychenko, who is an eminent specialist of the subject

For communications, students should check their university email accounts regularly.

The indicative content:

-       Private law, fundamental rights, and consumer law

-       Economic law, the consumer and his/her interests, and EU integration

-       Tort law, product liability, risk governance

-       The rationale of consumer law, consumer protection, and its regulation at EU level

-       Unfair commercial practices and misleading advertising

-       Unfair terms in consumer contracts

-       Consumer finance

-        Financial services

Essential Reading

Micklitz HW, Rott P, Tonner K, European Consumer Law, 2^nd edition (Intersentia, 2014).

Cases and materials advised from time to time by the instructor.

In particular, for the assessment, students will also be asked to independently supplement the textbook reading by reading relevant journal articles. These can be found through the e-library and searching for the journal title. Alternatively you can access journals via databases such as Westlaw, Kluwer Law Library Indicatively, the principal journals in English dealing with European Private Law in English are the following (however, please note that others exist and students will have to demonstrate their research skills):

Common Market Law Review (CMLRev).

European Law Journal (ELJ)

European Law Review (ELRev)

Legal Issues of European Integration (LIEI)

Yearbook of European Law (YEL).

European Review of Contact Law (ERCL)

European Review of Private Law (ERPL)

Journal of Consumer Policy (JCL)

Electronic sources:

Students can find EU Treaties, secondary legislation and cases in full on the free http://eurlex.europa.eu/en/index.htm website. The simple search engine should give you access to legislation and cases. Simply type the case number, e.g. C -34/99, or the legislation number, for instance Directive 93/11/EEC. Official Journal (OJ) references can also be used.

The OJ is divided into the 'L' series for legislation and the 'C' series for other matters, including legislative proposals, cases registered at the Court of Justice of the European Union (CJEU). The Official Journal is cited by year, edition number of that year and page number, e.g. OJ 1989 L 395/1 means that the relevant subject appears on page one of the 395th edition of the legislation series for 1989.

Students might also find it helpful to access the case law of the CJEU on its website: https://curia.europa.eu/. It includes a search engine to access all cases of both the Court of Justice and the General Court, as well as the opinions of the Advocate General. Here students can access the most recent cases which have not yet been published in the OJ. To search the case students require the case number which includes the year in which the case was filed. Since the inception of the General Court (previously Court of First Instance), cases before the Court of Justice are indicated by the letter 'C' before the number, and the General Court cases with 'T'. Cases which are appeals from the General Court to the Court of Justice have the letter P after the number e.g. Case C-195/91P. Cases with R in the number are interim decisions e.g. Case 792/79R.

Students might also find it helpful to refer to the glossary on the website of the EU. The glossary can be found from the following webpage: https://europa.eu/european-union/documents-publications/language-and-terminology_en

Reading the Judgments of the CJEU:

The structure of a CJEU judgment: Article 258 (EX 226 TEU-M) TFEU judgments:

If you know how the judgment is structured, you will be able to read it much more efficiently, as you will be able to decide which bits you need to read, and get to them easily.

You should be able to identify the following features, which are normally present in Article 258 judgments.

Scroll past the Summary, which is added by the reporters and is not a formal part of the judgment.

The Introduction gives details of the parties, judges and legal procedure. It also contains details of the application made - i.e. the alleged breach.

The judgment is typically divided into several sections (headings may or may not be used).

• National legal framework: this outlines the national law which is in question.
• Community legislation which is allegedly breached: if it is a general principle, there won't be much of this, but sometimes there is a need to go into more detail about the Community legislation breached as it is more technical or specific.
• Pre-litigation procedure: this outlines the informal and administrative stages.
• Substance: this presents the arguments made by both parties.
• Findings of the Court: this outlines the Court's own reasoning. It is often referred to as the operative part of the judgment (other parts being non-operative parts). Legally speaking, it is the heart of the judgment, and the other parts are simply leading up to this part. You need to be careful to distinguish operative and non-operative parts of a judgment, otherwise you could find yourself misunderstanding what the Court is arguing. It is often wise, particularly with long judgments and unless the facts are particularly complex, to read this part first, and then move back to the non-operative parts.
• Costs: the Court will make a ruling as to costs, following the Rules of Procedure
• Final judgment: The section beginning "on these grounds…" gives the ruling of the Court which is to be given legal effect.

The structure of a CJEU judgment: Article 267 TFEU (EX 234 TEU-M) judgments:

Again, scroll past the Summary.

The Introduction gives the same kind of information as in a 258 case, with the addition of information about the referring court.

The judgment begins with an outline of the fact situation and the problem posed to the national court. It then sets out the question(s) which the national court has referred to the Court of Justice. Quite often the Court will then explain or elaborate the way in which it intends to approach the questions, and which aspects of law it considers to be relevant.

The way in which the Court analyses the material will vary. They will usually deal with each question in turn and will often outline the arguments of the parties and the States who have made submissions, and provide its own reasoning. It is essential here to distinguish between the Court's presentation of the arguments put before it (non-operative) and the Court's own reasoned argument (operative).

The Court then makes a ruling on costs and finishes by providing the answers to the questions. In principle, it is that answer which goes to the referring court and is binding, although obviously the referring court will have access to the full judgment.

Some general points

• The Court is not technically bound by its own judgments. However, it will cite previous judgments as it prefers to remain consistent.  What you will usually see is a kind of 'cut and paste' approach where the same formula is repeated case after case.  You should note it as particularly interesting if the Court explicitly states that it is not following the rules laid out in previous judgments.
• Take particular note of any statements the Court makes about the role of the legislation or general principles underlying the legislation.  This is often a sign that the Court is being creative - does the principle it states have the agreement of the legislative institutions or the Member States?  Is there another way of interpreting the legislation?
• If you really want to understand a judgment well, it is essential to look at the opinion of the Advocate General.  CJEU judgments are becoming more specific and opaque, and it is often the A-G who makes it clear what the wider implications are.

Note

The following is particularly important for the research paper of your assessment:

Plagiarism: "To take and use as one's own the thoughts, writings or inventions of another" (Oxford English Dictionary) - Two elements:

1. Taking another's work
2. Using the work as your own

Three types of plagiarism (intentional or unintentional):

1. Intra-corpal plagiarism - for example, from another student on the same course
2. Extra-corpal plagiarism - for example, from a web page, book or journal
3. Autoplagiarism - for example, submitting a previous essay or article as new work. Includes 'essay banks'.

It is important you understand the rules and regulations with regards to plagiarism and that you reference your coursework appropriately.

Moduli didattici

• European private law (non attivo a.a. 2019-2020) (GIU0744)

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