Esther van Schagen (Newton International Fellow) is funded by a Newton International Fellowship, awarded jointly by the Royal Society, the British Academy and the Academy of Medical Sciences, from January 2016 - December 2017. Stephen Weatherill and Esther van Schagen will organise two Expert Round Tables that have been funded by the Newton Fellowship and the John Fell Fund. 

EU contract law has been criticised as inconsistent and unpredictable. It has also proven a difficult area for the EU legislator, as visible in the withdrawal of the draft Common European Sales Law and the failed reform of the Unfair Terms Directive and the Consumer Sales Directive. The project will target the revision of these central measures in EU contract law that are currently evaluated under the Regulatory Fitness and Performance Programme (REFIT) of EU consumer law.

This project identifies EU impact assessments as a means to improve European contract law. Impact assessments are reports preceding legislative measures that should help prevent contradictory legislation, assess whether problems arise for the internal market or consumer protection, and which measures will reinforce the internal market or consumer protection. Impact assessments are well-suited to outline regulatory trade-offs between the internal market and consumer protection and improve EU legislative discourse.

Because of serious, persistent flaws, impact assessments currently do not strengthen EU contract law. Impact assessments are based on doubtful, unsubstantiated assumptions and do not neutrally assess all possible options to foster the internal market or consumer protection, contrary to the Better Regulation Guidelines and the principle of proportionality. Impact assessments are also based on an incorrect understanding of surrounding EU law.

This project draws attention to impact assessments that have received very little attention from civil lawyers, who are unfamiliar with impact assessments. The focus on impact assessments provides a new perspective to find innovative solutions to address inconsistencies and unpredictability in EU contract law, exploring how EU impact assessments can be improved. This project aims to:

  • (a) set foundations for the first comprehensive study on impact assessments in EU contract law;
  • (b) explore ways to improve impact assessments;
  • (c) assess which policy options should be considered in the revision of the Unfair Term Directive and the Consumer Sales Directive;
  • (d) help national actors gain more insight in EU decision-making; and,
  • (e) help EU actors gain more insight in national concerns and success stories.

To date, as part of the project, Esther has spoken at the ECPR conference in Tilburg and she has taught a masterclass on impact assessments in European private law in Groningen. She has contributed to the Regulatory Fitness and Performance Programme (REFIT) of EU consumer law and she will speak at future conferences, including the annual Conference of the Society of Legal Scholars (SLS) in Oxford and the W.G. Hart Legal Workshop in London. Together with Prof. Stephen Weatherill, she will organise two Expert Round Tables on impact assessments in EU contract law.

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