Doctor iuris, Lecturer, Trnava University
The Influence of Harmonisation on Civil Law in the Slovak Republic
"We can agree with the idea that new member countries can learn a lot from the Western countries. However, the opposite is true, as well. The West can also learn from the new member countries about their law of the socialist era, how they succeeded in accepting acquis communautaire, how they solved the problem of consumer regulations: to integrate them into the civil law or into separate consumer protection laws [...]." 1
These were the words that Ewoud Hondius used to welcome the newly joined Central European members to the EU in 2004. However, in my opinion, the optimistic invitation will not lead to the expected results if we consider the reality. We should express disappointment with the current state of harmonisation. The pace of harmonisation commitment we have to carry as a new EU member and the burden of the past specific to Central Europe may be among the reasons for this. According to Vékas, "it is possible to establish that the recently joined Central European members tend to follow the examples set by the old continental countries, rather than Central European states offering an example for the old ones" and that "the relationship between a common European law and national laws shows the same kind of problems in the new member states as in the old ones"2.
At the same time it can be stated that Slovakia, which was established as an independent country in 1993, has not had an opportunity to deal with perfection of harmonisation at the highest level, since resolving everyday demanding issues is beyond the economic and personnel capabilities of this country, as I and others would argue.
To explain our position in the field of civil law, it is necessary to provide a brief outline of the recent history of Slovakia. Slovakia has witnessed constant, substantial changes over the last 50 years. Their chronology is as follows.
Case customary law of Hungarian origin more or less prevailed in Slovakia up to 1950, although from 1918, after its separation from the Austro-Hungarian Empire and integration into Czechoslovakia, in its application by Slovak courts the law was greatly influenced by the Allgemeines Gesetzbuch der Republik Österreich (ABGB), which was in force on Czech territory before Czechoslovakia was established. In the first Czechoslovak Republic, a codification draft based on the ABGB was drawn up. The Slovak side was critical of it, and with the disintegration of Czechoslovakia just before World War II its adoption was blocked.
The year 1948 signified a radical turn from capitalism to socialism. Elimination of private property and transformation to a socialist societal structure with stress on a socialist approach to property (private property was to be eliminated) became its economic foundation.
In 1950, the first common Czechoslovak Civil Code was adopted. It was designated as for the transitional period from capitalism to socialism, and its legal and political intention was expressed as being to destroy the base of bourgeois civil law.
In 1964, the Civil Code, based on the socialist conception of property, was adopted. It was far removed from the traditional institutions of the law of obligations and considerably distant from the European private law tradition3. At the time of its adoption it signified the final result of the transition to socialism4.
Then, 1989 brought a radical turn in the opposite direction when compared with that of 1948: one aimed at wide re-privatisation. The society was not prepared for this act after 40 years of socialism.
As a result of these revolutionary changes, in 1991 sweeping amendment of the Civil Code and the adoption of the new Commercial Code (which substituted for the cancelled State Business Code) were enacted. The 1991 amendment was, once again, a move qualified as transitional, and since then Slovakia and the Czech Republic have been heading for re-codification of the Civil Code, which has now been 18 years in coming...
The splitting of Czechoslovakia on 1 January 1993 meant the beginning of independent development of the civil law in both successor states and other re-codification efforts5.
The EU Association Treaty's conclusion in 1993 and the subsequent EU accession of Slovakia on 1 May 2004 meant subordination of the civil law to EU law.
In the historical context, it is obvious that the Slovakia of the 21st century has difficulties on account of prior disruptions of its development. European legislation was developed in Western Europe in continuity with the integration process from the end of World War II and was always economically based on private property6.
Given the prior discontinuity and instability of societal development and civil law, it is not realistic to consider systematic harmonisation7.
The dual model of the law of obligations in civil and commercial relations established in 1991 itself causes problems in practice; consumer contracts included in the Civil Code in 2004 deepened the state of disintegration of the contract system. There are now 20 specific contract types regulated in the Civil Code and 26 in the Commercial Code. Some of them are identical, and the scope of their application is dependent on the nature of their subjects. On the other hand, several contract types in these codes are applicable generally, irrespective of the nature of subjects. Specific contracts regulated in both codes may fall under the category of consumer protection and may be qualified as consumer contracts, provided that they satisfy legal requirements8. Although the civil law has been codified in the Civil Code, many other separate acts are included in its sources at the same time. The structure of the Civil Code itself has been broken by the amendment in 1991.
Lack of a systematic approach to implementation of EU directives has become evident in the manner of their integration into various acts:
The package travel directive 9 , unfair contract terms directive 10 , consumer guarantees directive 11 , and timeshare directive 12 , as well as relevant parts of the financial collateral directive 13 , direct life assurance directive 14 , and legal expenses insurance directive 15 , were implemented in the Civil Code. How directives are integrated into the Civil Code is in itself problematic. Their transposition was not systematic or consistent16. Given the incoherent structure of the Civil Code, whether it was possible to do it much better is a matter for heated debate17.
The unfair commercial practices directive, the injunctions directive, the general product safety directive, and the dangerous products directive were implemented in the Consumer Protection Act18.
Transposition of some directives has been realised through specific acts: the doorstep selling directive 19 and distance selling directive 20 were implemented by a special act of the identical name (Act 108/2000 Coll. on consumer protection on the doorstep and distance selling). In connection with this example, it can be stated that the purpose of the implementation has not been actualised. According to my experience, in this case, rights conferred by the directive are not effective enough, on account of exclusion of the sales contract from the Civil Code.
The distance selling directive for financial services 21 , consumer credit directive 22 , and product liability directive 23 , as well as the directive on electronic commerce 24 , have been implemented via the enactment of specific acts.
Realisation of the purpose of harmonisation is greatly affected by the legislative process of transposition itself. Transposition carried out via drafts by various ministries (the Ministry of Justice, the Ministry of Economy, etc.) are subject to criticism stemming from lack of clear conception25. The reasons for this situation are also pointed out: ignorance of this issue by politicians and that public authorities align themselves with the stronger side26.
The Consumer Protection Act of 2007 itself shows signs of instability and misconception. The earlier Consumer Protection Act of 1992 was replaced this year by a new act to guarantee 'greater stability' than the previous one, which was modified several times in the course of its life27. The opposite is indicated by a new source available at the Ministry of Economy's Web site as the responsible authority, where another extensive modification of the act is suggested28. If the intention of the legislators was to reach a certain degree of stability, it would have been appropriate to wait for several years, until EU action achieves unity of acquis communautaire at the acceptable level. There are two other problematic elements in the Slovak Consumer Protection Act. Firstly, the name of the act itself is misleading, as it covers only a certain proportion of the target issue, which is evident in this outline. Second is the fact that this act combines rules of different character (civil, administrative, and procedural character, etc.)29.
To sum up, all the defects of consumer acquis having been mentioned and criticised in the Green Paper on the Review of the Consumer Acquis 30 go directly to the heart of fractured Slovak civil law and are often even redundant. It is important to apply these experiences in the process of civil law re-codification.
It will be essential in the area of consumer protection to embody directly in the Civil Code material addressing information disclosure, the right to cancel a contract (withdrawal right), unfair terms, and in particular cases a requirement of written form. Today, the protection measures for the benefit of the weaker party - i.e...