CYIL 2012

LARRY A. DĎMATTEO CYIL 3 ȍ2012Ȏ protection. 16 Second, the EU Commission is to report to the Parliament, Council, and Economic and Social Committee on “the need to extend the scope in relation to business-to-business contracts, market and technological developments in respect of digital content and future developments of the Union acquis .” 17 In addition, I would hope that the recently created European Law Institute 18 could be developed to serve the purpose that the American Law Institute serves in the US the drafting and promotion of uniform or model laws. The purpose of this analysis of the evolution of the American UCC was to illustrate the difficult process of modernizing Czech commercial law, of multi-jurisdictional harmonization (EU), and, most importantly, the need to constantly modernize commercial law. 2.2 Czech Law: Disharmony between Old and New Civil Code, Commercial Code, and Consumer Law The Czech Civil Code does provide a standard hierarchy relating to sources of law. Czech statutory law and codes are supreme, second only to Constitutional Law with a few exceptions. First, “legal rules are included in international treaties; should there be a conflict between an international treaty and a concrete act, the international treaty takes preference.” 19 Thus, the CISG prevails over the Czech Civil and Commercial Codes when a case is within its jurisdiction. Second, Regulations of the EU have direct effect and prevail over conflicting Czech law. This would be the case with CESL, which is designed to be enacted as a regulation. However, the conflict between CESL and Czech law, especially in the area of consumer contracts (B2C), is likely to be modest given the influence that numerous EU Consumer related Directives have already had on Czech national law. Since the Civil Code mostly provides general provisions applicable to all of private law, it is the Commercial Code and Consumer Law that will be most affected by CESL. The area of commercial law (sale of goods) should be easier to reconcile since the Commercial Code was enacted in 1991, in the post-Communist era, and was not as influenced by socialist law. 20 As noted earlier, a new Civil Code has been adopted and will go into effect in 2014. 21 Transitioning to a new Code may cause some uncertainty, but the alternative is the continued transaction costs of an obsolete law that is not in tune with the reality 16 CESL, Article 15.1. 17 CESL, Article 15.2. 18 The European Law Institute, founded in June 2011 as an entirely independent organization, aims to improve the quality of European law. See http://www.europeanlawinstitute.eu. 19 Elischer, Frinta & Pauknerová, Private Law at 69. 20 “Fundamental changes to Czechoslovak business law came about after November 1989 when the democratic system was reinstated, changes to Czechoslovak legislation connected with the transition to political pluralism and a market economy occurred, and possibilities for private business opened up. In a very short period of time, the Commercial Code No. 513/1991 Sb. was prepared and passed replacing in particular the former socialist Economic Code and the International Trade Code.” Ibid. at 87-88. 21 A new Civil Code has recently been adopted. See Civil Code – Act No. 89/2012 Sb (2012), effective on January 2014.

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