Party Dispositions and EU Consumer Contract Law

研究涉及的问题，国家程序法应如何应对欧盟通过的消费者合同法。这两个法律的领域之间存在着紧张关系：合同法的一个基本原则是当事人意思自治，它允许当事人对自己的法律的关系负责。然而，在企业对消费者关系中，这种当事人意思自治受到欧盟指令的限制，目的是补偿假定的消费者不平等谈判地位，此外，也是为了促进内部市场。为了行使其权利，消费者依赖于程序法，而程序法基本上不受欧盟法律的影响。尽管消费者合同法通常假定需要赔偿的不平衡，但德国程序法假定，即使在消费者和企业之间的纠纷中，谈判双方原则上也同样强大。这项工作强调学科内，即从民事，民事诉讼，欧盟和宪法的角度来看，以及如何以适当调整的方式适用德国程序法。除了法院程序之外，它还涉及导致可执行所有权并以当事人协议为基础的所有其他程序-在这种情况下，不平等的谈判地位可能与程序和当事人协议本身有关，因此需要调整。随后，工作是专门的联盟法的要求：在何种程度上实体法与党的协议冲突？与传统的德国法律相反，欧盟法律不仅注重保护消费者，还旨在通过可预测和明确的规则协调法律，以促进内部市场。因此，即使消费者不需要这些规则的保护，欧盟法律也会阻止他们搁置这些规则。从欧盟的基本法律出发，遵循成员国在程序法中实施这两个目标的义务，这些原则随后被贯彻到德国的法律的体系中，重点是法院和仲裁程序、法院、仲裁和律师和解以及公证书。其结果是形成了一个欧洲化的德国程序法制度，其基础是国家当局，特别是法官有义务提供信息。这一义务超过了纯粹国内法中的类似义务。联盟法要求法官、仲裁员和其他国家机构确保联盟法始终受到审查，并确保各方有机会自主作出决定。

The study deals with the question how national procedural law should respond to the consumer contract law adopted by the EU. There is a tension between these two legal areas: one fundamental principle of contract law is party autonomy, which allows the parties to take responsibility for their own legal relations. However, this party autonomy is restricted by EU directives in the business-to-consumer (B2C) relationship in order to compensate for an assumed unequal negotiating position of the consumer and, moreover, to promote the internal market. In order to enforce his rights, the consumer depends on procedural law, which has remained mainly unaffected by EU law. Whereas consumer contract law regularly assumes an imbalance requiring compensation, German procedural law assumes that the negotiating partners, even in a dispute between consumers and businesses, are – in principle – equally strong. The work emphasises intra-disciplinary, i.e. from the point of view of civil, civil procedural, EU and constitutional law, that and how German procedural law has to be applied in an appropriately adapted way. In addition to court proceedings, it deals with all other proceedings that lead to an enforceable title and are based on a party agreement - here the unequal negotiating position can become relevant in the proceedings and in the party agreement itself and, thus, require adjustments.First of all, the framework of party autonomy in German law is worked out, i.e. the constitutional and procedural barriers. Subsequently, the work is devoted to the requirements of Union law: To what extent does substantive law conflict with party agreements? Contrary to traditional German law, EU law does not only focus on the protection of consumers but also intents to harmonise the law to promote the internal market through predictable and clear rules. As a result, EU law impedes to set aside the rules even if the consumer does not need their protection. From EU primary law, subsequently, follows the Member States‘ obligation to implement these two objectives in procedural law.These principles are then implemented into the German legal system, focusing on court and arbitration proceedings, court, arbitration and attorney settlement and notarial deed. The result is a system of Europeanised German procedural law that is based on an obligation to provide information by the state authorities, in particular the judge. This obligation exceeds a similar obligation in purely national law. Union law requires judges, arbitrators and other state bodies to ensure that Union law is always examined and that the parties are given the opportunity to take decisions autonomously.