European Contract Law in View of Technical and Economic Regulation

In his impressive body of work, Ewoud Hondius has made clear that he favour, the development and harmonization of a European contract law. Hondius has analyzed and developed numerous important notions of contract Jaw, within the European contract law perspective: we only have to mention precontractualliability and protection of the weaker party, where he has made an outstanding contribution to consumer protection in agreements. Hondius has also always had an eye for the interaction between economics and contracts. Hondius realizes, for instance, that competition law - an area which we will not discuss - will have an impact on the formation and performance of contracts. We propose that special interests continue to influence the development of contract law. In our contribution. we want to focus on sector-specific regulation as an area that we believe also deserves the attention of both the prospective regulator and the legal community in the ever growing area of European (contract) law. In our view, technical and economic regulation clearly interacts more and more with contract law principles. To this effect, we have selected an industry where the dichotomy between, on the one hand, established principles of contract law, and, on the other, technical and economic issues, manifests itself very prominently: the electronic communications sector. We will begin by describing the principles and issues applied by the EC regulator in the field and will discuss what impact this regulation can have on contract law. We will then discuss the interaction between private law principles and (perspectives underlying) economic regulation, and their integration in the context of the Europeanization of contract law. Will sector-specific regulation, viewed as an interactive body of law, influence contract fomlation, performance and termination to provide a balance for the parries? When this question has been addressed, we humbly suggest that it should thus follow that, through a knight's move, the consumer protection rationale (the consumer not being a party to the agreement) is expanded through regulatory intervention in agreements between professional parties. Moreover, can sector-specific regulation at the European level perhaps energize the efforts of harmonizing European contract law?