European contract law in business-to-business transactions

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1 Flash EB N o 320 European Contract Law, B2B Flash Eurobarometer European Commission European contract law in business-to-business transactions Report: 2011 Flash Eurobarometer 320 The Gallup Organization This survey was requested by DGJUSTICE: and coordinated by Directorate General Communication This document does not represent the point of view of the European Commission. The interpretations and opinions contained in it are solely those of the authors. page 1

2 Flash EB N o 320 European Contract Law, B2B Flash EB Series #320 European contract law business-to-business transactions Conducted by The Gallup Organization, Hungary upon the request of the DG JUSTICE-A-2: Civil law and contract law Coordinated by Directorate-General Communication This document does not represent the point of view of the European Commission. The interpretations and opinions contained in it are solely those of the authors. THE GALLUP ORGANIZATION page 2

3 Flash EB N o 320 European Contract Law, B2B Table of Contents Table of Contents... 3 Introduction... 4 Main findings Company background Company characteristics Involvement in cross-border trade Barriers to cross-border trade Contract law-related barriers Contract law-related barriers blocking cross-border trade? Contract law Contract law currently applied Evaluation of the possibility of a single European contract law Anticipated effects of a single European contract law Annex tables Survey details Survey questionnaire page 3

4 Flash EB N o 320 European Contract Law, B2B Introduction The exchange of goods and services is governed by contract law. Problems in relation to using, agreeing, interpreting and applying contracts in cross-border transactions may therefore affect the smooth functioning of the internal market. To date the European Commission has aimed to address these problems by adopting measures targeted to specific contracts or sectors. This sector-specific approach has, however, not been able to resolve a number of problems. The European Parliament and Council have consistently affirmed the need for greater coherence in order to ensure the proper functioning of the internal market. The European Commission has undertaken a series of initiatives aimed at increasing the overall coherence of European contract law. The present survey (Flash Eurobarometer #320 about Business attitudes towards cross-border business-to-business (B2B) transactions and the usefulness of a European contract law) was designed in order to obtain first-hand feedback on several issues affecting businesses involved in cross-border sales to other businesses. Another survey, conducted in parallel to this study, looked at businesses attitudes regarding European Contract Law in relation to sales to final customers (Flash Eurobarometer #321: Business attitudes towards cross-border business-to-consumer (B2C) transactions and the usefulness of a European contract law). This present survey covered the following themes: Background information on the surveyed businesses Their involvement in cross-border B2B transactions The importance of various barriers to cross-border B2B sales How contract law is applied in current cross-border contracts An assessment of the European contract law initiative, the preferred model of businesses and the anticipated effect on cross-border transactions. In this Flash Eurobarometer survey (No. 320), a total of 6,475 managers (senior executives or, where available, legal officers) in the 27 EU Member States were interviewed by telephone, between the 14 and the 22th of January, Note that the survey only included enterprises that were either currently involved in cross-border business-to-business transactions (sales/purchase of goods or services) or were planning to do this in the future. For the sake of readability, the report refers to these enterprises as surveyed enterprises 1. The sample was randomly selected in each country within certain activity sectors (NACE Rev 2.0): C: Manufacturing G: Wholesale and retail trade: repair of motor vehicles, motorcycles and personal and household goods I: Accommodation and food service activities J: Information and communication K: Financial and insurance activities. Seventy-nine percent of the surveyed companies were micro-enterprises (with 9 or fewer employees), 16% were small enterprises (10-49 employees), and 5% of the overall sample were medium to large enterprises (50+). 1 The majority of the samples indeed have traded cross-border, the proportion of those only interested in such transactions was 8% on the EU level. page 4

5 Flash EB N o 320 European Contract Law, B2B The targeted number of interviews varied dependent on the size of the country. In most EU countries, the targeted sample size was 250. However, in Cyprus, Luxembourg and Malta, the sample size was reduced to 150. Sampling weights with regard to all issued sample were calculated in each country (to correct for the deliberate over- and under-sampling in the various size segments) and transferred to the respondent units that satisfied the above mentioned screening criteria. In order to calculate EU27 averages, the county-level results were combined proportional to the size of the estimated number of enterprises in the specific sectors surveyed. Due to the low sample sizes at national level, readers should be aware that the Member State level results are subject to a sampling error ranging from about ± 6.2% (where the national sample size is 250) to ± 8.2% (in countries with a sample size of 150). The sub-setting of the samples in various filtered questions further increases this range. Sampling errors for the EU level data are, however, much smaller; i.e. less than 2% for the total EU sample (depending on the question). A technical note explaining the manner in which Gallup and its partner institutes conducted the survey is attached in the annex. It provides further details on the interviewing methods employed, the sampling techniques used and the statistical margins of error. page 5

6 Flash EB N o 320 European Contract Law, B2B Main findings Main barriers of cross-border transactions Enterprises are faced with various barriers that interfere with their ability to trade cross-border with other businesses. These barriers may be practical (such as language barriers or means of delivery) as well as legal, e.g. related to the contract law applied in such transactions. According to the reports of managers of the surveyed enterprises, issues related to diverse contract law environment were almost as important as some other issues that may be barriers to (a heavier) involvement in cross-border trade. While non-contract law-related problems (the most important being tax regulations with 38% and formal requirements like licensing with 36%) scored slightly higher than any of the contract law-related obstacles. 35% of respondents said that difficulties in finding out about the provisions of a foreign contract law was an obstacle which impacted upon their decision to sell cross-border, 31% considered it an obstacle to obtain legal advice on foreign contract law and 30% considered it difficult to agree on the applicable foreign contract law. Contract law as a barrier to trading cross-border Among potential obstacles to cross-border trade, the survey specifically enquired about the extent (if any) to which each of the following contract law-related barriers had impacted their cross-border business-to-business trade: 1. Difficulty in agreeing on the applicable foreign contract law; 2. Difficulty in finding out about the provisions of a foreign contract law; 3. Problems in resolving cross-border conflicts, including costs of litigation abroad, and 4. Obtaining legal advice on foreign contract law About half (49%) of the companies surveyed in the EU indicated that at least one of the above listed potential barriers had at least some even if minimal impact on their cross-border activity. About one in six of the surveyed enterprises (16%) indicated that at least one of these factors had a big impact, another 16% felt at least some impact and 17% confirmed at least a minimal impact of any of the contract law-related problems tested. Contract law-related issues posed a barrier more or less equivalent to the practical difficulties of trading with other businesses cross-border (the latter being language problems, issues with cross-border delivery and after-sales maintenance). Tax regulations and the need to comply with formal requirements were less significant barriers of being involved in cross-border B2B transactions compared to contract law-related and practical difficulties. Companies only interested in cross-border trade are dissuaded from cross-border trade to a much greater extent than those already trading cross-border. 64% and 66% in this group said that contract law and practical obstacles had at least a minimal impact on their cross-border trade compared to 48% and 54% companies trading cross-border currently. In the segment of those only planning to participate in cross-border trade, heavy concerns related to contract law problems exceeded those related to practical obstacles (great barrier: 33% vs. 27% respectively). page 6

7 Flash EB N o 320 European Contract Law, B2B Contract law-related concerns were in fact hindering businesses from cross-border trade, at least to some extent. Most companies (64%) stated that contract law-related barriers at least occasionally (i.e. not very often ) deterred them from doing such business. Only 33% of those who reported an impact of contract law-related barriers indicated that such problems were not preventing them at all from engaging in cross-border transactions. The contract law-related problems typically occurred together with other obstacles companies were facing when trying to trade cross-border. Overall, only 3% of the surveyed enterprises cited contract law-related obstacles having at least a minimal impact on their cross-border trading, and reported at the same time no other problems interfering with their ability to carry out transactions with other EU countries. European Contract Law The majority (60%) of the surveyed enterprises had the impression that their own national contract law applied to most of the transactions that they were engaged in across EU borders. About one in seven (14%) assumed that most transactions were under the jurisdiction of the other party s national law. The proposition to adopt a single EU contract law that could replace or supplement national contract laws in cross-border transactions was strongly favoured by the surveyed enterprises. At the EU level, 7 in 10 companies would choose the jurisdiction of an EU contract law if it existed (30% were very likely, 40% just likely to use it). Overall, one in five companies indicated that they would be unlikely to choose the aforementioned single European contract law to govern their transactions (12% were unlikely and 8% very unlikely ); 10% had no opinion. A majority of the surveyed enterprises (52%) preferred the situation where such a single European contract law would replace the national contract law. About four in ten surveyed enterprises (38%) favoured an optional EU contract law, 13% thought that such a law should be available for the companies as an option for their crossborder transactions, while 25% felt that the best solution would be an optional EU contract law equally applicable in domestic and cross-border transactions. One in 10 managers could not or would not answer this question. A third of the surveyed enterprises (35%) were positive about the anticipated effects of adopting a single European contract law. Roughly 1 in 10 (9%) at the EU level said that the option to choose the European contract law for business-to-business cross-border transactions would increase their related activities a lot and a further 25% estimated that this would increase their cross-border activities a little. Most enterprises, however, felt that the adoption of a single European contract law that could be selected to govern cross-border contracts would not change the volume of their cross-border activities (54%). The main beneficiaries of such an EU contract law would be those companies that were only considering becoming involved in cross-border trade: the majority (52%) of these enterprises assumed that as a result of such legislation their cross-border activities would increase (22% said it would increase a lot, 30% that it would increase a little). page 7

8 1. Company background 1.1 Company characteristics This survey interviewed enterprises 2 that were either involved or interested in becoming involved in cross-border business-to-business transactions (see below) and active in certain economic sectors. Initially, we describe the companies at the EU level that are either active or interested in cross-border business-to-business trade. Clearly, cross-border trading with other businesses within the EU is not restricted to larger enterprises: the vast majority of companies that confirmed that they were currently involved or interested in becoming involved in cross-border business-to-business trade were micro-enterprises (79% on average across the EU, led by 89% in Malta, 88% in Finland and 87% in Portugal). Company size in terms of number of employees MT FI PT BG EL IT CY IE RO BE SI EU27 NL DE ES FR SE EE UK AT DK PL SK HU LV CZ LT LU D1. How many employees do you have in your company? Base: all companies, % by country The overall proportion of small enterprises (10-49 employees) in the weighted EU sample was 16%, with the medium and large segments being represented by 5% of the overall sample. Enterprises with at least 10 employees were most likely to be represented in the study s sample in Luxembourg (36%) and Lithuania (33%). Those who were only interested in conducting cross-border B2B trade were more likely to be microenterprises (86%) and only 1% in this group had more than 50 employees 13% were small enterprises (a country breakdown of this information is not available due to the low number of those only interested in such trade among the sampled enterprises). 2 screened from a total population of all enterprises in the following activity sectors: manufacturing, wholesale and retail trade, accommodation and food services, information and communication, and financial and insurance activities page 8

9 As for the turnover of the enterprises, the majority (54%) did not provide data for our interviewers. In order to assess more complete results, we added the missing turnover figure from the sample lists, where available (the sample lists themselves may or may not have contained turnover figures, and even in the countries where this is generally available, in many instances this information was not provided), thereby decreasing the rate Company size in terms of turno ver of missing information to 45%. The chart shows the proportions of the various company sizes, by turnover, Up to 1 million euro after the addition of this auxiliary data More than 1 million and up to 2 million euro More than 2 million euro and up to 10 million euro More than 10 million euro DK/NA D 2. What was your co mpa ny s turno ver in 2 009? Base: all companies, % EU27 Most enterprises interviewed corresponding to the fact that they were predominantly micro-enterprises had an annual turnover of less than 1 million euros (35%). Of the surveyed enterprises, 7% had a turnover of 1-2 million, 9% had a turnover of 2-10 million euros and 5% reported a turnover greater than 10 million in Annex Table 4a shows this information by EU Member State; however, the most pronounced difference was seen in the actual availability of turnover information. Looking at those who did provide their 2009 turnover figures (or where it was available from the sampling frame), the distributions in each country were similar to the EU figure: most enterprises in each country belonged to the lowest income segment. Largest product categories in companies sales Products from the engineering sector, e.g. machinery Clothing, footwear and accessories (including jewellery and cosmetics) Food and drinks Furniture, furnishings and decoration (including doit-yourself goods and maintenance products) Cars, motor vehicles and parts Household appliances, electronic goods and information technology goods 6 7 Leisure goods (ex. books, audiovisual material, toys...) Digital products 4 4 Financial and insurance services 1 Other goods 29 D3. Which of the following product categories is the largest in your sales? Base: all companies, % EU27 When asked about the dominant product categories offered, most surveyed enterprises indicated they were selling some kind of machinery (15%), 12% were mainly involved in the sales of clothing and footwear, 11% traded in food and drinks and 10% were selling furniture and decoration. Less than 1 in 10 companies in the sample were selling cars and related parts (7%), household appliances (6%), leisure goods (4%), digital products (4%) and just 1% of enterprises were primarily selling financial page 9

10 services. Many enterprises involved in cross-border trade specified another product category that they were primarily selling (29%). Only a quarter of the surveyed enterprises were mainly on the recipient side of business-to-business transactions (either domestic, or cross-border): 25% indicated that they were mainly buying products or services from other companies. The vast majority (75%) reported significant sales activity with business clients: 45% indicated that they were equally involved in buying and selling with business partners, and 30% indicated that they were predominantly selling to other enterprises. The compositions of the national samples showed major differences in this regard those primarily active as buyers were most frequently seen in France (45%), while less than 1 in 10 enterprises indicated that they were mainly buying, in such relationships, in Hungary, Bulgaria and Latvia (8%-9%). The largest shares of enterprises that considered themselves as predominantly sellers in business-to-business transactions were seen in Italy (45%) and the Netherlands (40%). See Annex Table 6a for more details at a country level. Differences according to business characteristics were most pronounced in the category of those who mainly participated as buyers in cross-border transactions: the proportions of these were well below the average in the medium-to-large segment (13%), among those who only offered distance sales methods in their regular business (17%), and those who were trading with four or more countries (16%); see Annex Table 6b. Most enterprises offered in-premises sales for their clients (59%), but many were selling via distance methods: 39% offered the opportunity to buy products by phone or mail order, 36% sold online and 23% were involved in door-to-door selling or other out-of-premises Type of sales channels used sales (i.e. at trade fairs, markets, etc.). In-premises sales 59 Overall, 65% of the surveyed enterprises were offering their products via some kind of out-ofpremises ( distance ) sales channel: these were mainly seen in Estonia (84%), the UK (81%), Hungary (79%), Ireland and Spain (both 78%). Are you mainly involved in B2B transactions as a buyer o r a seller? 45 0 Phone, po st and o ther m eans of distance communication Mainly as a buyer Mainly as a seller E qual involvement as a buyer and as a seller DK/NA D4. Are you m ainly involved in business-to-business transactions as a b uyer o r a seller? Base: all compan ies, % EU27 Internet Do orst ep selling a nd other out of premises channels DK /NA D5. Which of the following sales cha nnels do you use? Base: all companies, % EU27 39 page 10

11 Companies using distance sales channels EE UK HU IE ES FI PL CZ DK NL SI LT DE LU FR EU27 SK LV BE AT SE MT EL PT BG RO CY IT Note: proportion of companies that were using at least one ditance sales channel (incl. via the Internet, by phone, post and other means of distance communitcation, doorstep selling and other out-of-premises channels) D5. Which of the following sales channels do you use? Base: all companies, % by country The least likely to offer off-premises sales opportunities to potential customers were Italian and Cypriot companies (both 48%) together with those interviewed in Romania (54%). Those who were currently trading cross-border were more likely (65%) than those who were only planning to do so (59%) to use distance sales channels. The direct relation between the propensity of cross-border trading and the availability of distance sales opportunities was further supported by the fact that those companies that traded with more countries (4+ countries) were significantly more likely to use offpremises sales methods (74%) compared to those who only traded with one other country (60%). Among the companies in the study sample, sales over the Internet were most frequently offered by British and Estonian firms (both 56%), but also by about half of the companies in the Czech Republic and the Netherlands (both 54%), Poland and Ireland (both 49%). On the other hand, only 11% in Cyprus and 15% in Greece were selling online. Companies sales channels: the Internet EE UK CZ NL PL IE FI LT SI BE DK LU DE HU SE SK EU27 FR AT ES BG MT RO PT LV IT EL CY D5. Which of the following sales channels do you use? Base: all companies, % by country The availability of online sales was not related closely to the size of the enterprises; however, small enterprises were more likely 40% at the EU level to offer such sales channels, compared to microand larger enterprises (35% in both categories offered Internet sales); see also Annex Table 7b.There was an evident relationship between selling over the Internet and the intensity of cross-border trade: those who made transactions with businesses in at least four other EU Member States were almost twice as likely (46%) to have Internet sales than those who were not currently trading cross-border (27%). page 11

12 Overall, the proportion of those enterprises that only offered in-premises sales remained below half of the interviewed businesses in most Member States; on average, 34% of those surveyed had no offsite sales. This peaked in Italy and Cyprus (both 51%), while it was very atypical in Estonia (16%), the UK (18%) and Hungary (19%). Type of sales channels used In-premises sales only Distance sales methods only Both IT CY RO PT BG MT EL SE AT BE LV FR SK EU27 LU DE SI NL LT DK PL CZ FI ES IE HU UK EE D5. Which of the following sales channels do you use? Base: all companies, % by country The proportion of companies that were only offering distance sales channels was high: 41% at the EU level only offered out-of-premises sales options to their customers. The countries where the proportion of such companies was the highest were the Czech Republic (52%), Germany (50%), Latvia, Estonia (both 49%) and Denmark (48%). page 12

13 1.2 Involvement in cross-border trade Predominantly, the surveyed enterprises had previous experience in either buying or selling crossborder: 92% were currently trading cross-border, while 8% indicated they were interested in trading with companies from other EU Member States. These proportions varied slightly between countries, but the samples primarily consisted of enterprises with current cross-border trading experience. Involvement in cross-border trade 100 Currently involved Interested in being involved DE LU AT IE SE SK UK FR NL PT IT DK LT BE SI CZ EU27 EL MT PL EE HU LV FI ES BG CY RO D02. Which of the following statements correspond to your situation? Base: all companies, % by country The countries where companies were the least likely to be actually involved in selling or buying cross-border were Romania (67%), Cyprus (74%) and Bulgaria (82%). Those companies that were only interested in cross-border sales were most often found among microenterprises and those who only had in-premises sales; generally, however, the picture was similar to the EU average in each business segment (see Annex Table 1b. for details). As for the number of countries that the sampled companies were trading with, about a third (34%) traded currently with enterprises (or final consumers) in two or three Member States, 32% were trading with at least four countries and 23% were just serving / making purchases from one other Member State. About 1 in 15 (8%) were only trading domestically (but were still interested in cross-border transactions). Trading with more than three countries was most typical of German enterprises: 46% said they were doing this. Swedish Number of EU countries where companies make cross-bor der t ransactio ns Domest ic trade only DK /NA D 6. Besid es [COU NT RY], in ho w m an y oth er EU cou nt ries d o you currently m ake cross-border transactions? Base: all compan ies, % EU27 page 13

14 (43%), Danish and Luxembourgish (both 40%) and Austrian and British (both 39%) companies were also well above the average in this regard. On the other hand, in Portugal for example, a rather large number of enterprises indicated that they only traded with one other country (43%) and the proportion of such companies was also fairly high in Italy, Ireland (both 30%). Number of EU countries where companies make cross-border transactions 100 Number of countries: DE SE DK LU AT UK NL EE FR SI IE PL LT CZ EU27 BE FI SK EL ES HU MT IT LV PT CY BG RO D6. Besides [COUNTRY], in how many other EU countries do you currently make cross-border transactions? Base: all companies, % by country Trading with many (at least four) Member States was mainly characteristic of medium and large enterprises (62% of those with at least 50 employees dealt with businesses from at least four other EU countries), and those offering online sales were also significantly more likely than the average to trade with businesses in more than three Member States (41%, see Annex Table 8b). page 14

15 2. Barriers to cross-border trade Enterprises are faced with various barriers that interfere with their ability to trade cross-border with other businesses. These barriers may be practical (such as language barriers, after-sales services or means of delivery) as well as legal e.g. related to the contract law applied in such transactions. In order to explore the extent to which each of these factors plays a role in preventing businesses from trading with one another across national borders within the EU, the survey asked the following question: What impact do the following potential obstacles have on your decision to sell / purchase across-border to / from businesses from other EU countries? (Large impact, some impact, a minimal impact, no impact); A - Language (communication problems, translating documents, etc.) B - Difficulty in agreeing on the foreign applicable contract law C - Difficulty in finding out about the provisions of a foreign contract law D - Cultural differences E - Tax regulations F - Formal requirements e.g. licensing, registration procedures G- Problems in resolving cross-border conflicts, including costs of litigation abroad H - Obtaining legal advice on foreign contract law I - Problems with cross-border delivery J- After-sales maintenance abroad Items B, C, G and H in the above list were directly related to the contract law applied in such transactions. Items A, I and J will henceforth be referred to as practical obstacles. Impact of potential obstacles on companies decision to sell or purchase cross-border Large impact Some impact Minimal impact No impact DK/NA Tax regulations Formal requirements e.g. licensing, registration procedures Difficulty in finding out about the provisions of a foreign contract law Language (communication problems, translating documents, etc.) Problems with cross-border delivery Problems in resolving cross-border conflicts, including costs of litigation abroad Obtaining legal advice on foreign contract law After-sales maintenance abroad Difficulty in agreeing on the foreign applicable contract law Cultural differences Other Q2. What impact do the following potential obstacles have on your decision to sell / purchase across border to / from businesses from other EU countries? Base: all companies, % EU27 Graph sorted by any impact page 15

16 A number of managers identified problems with several of the listed barriers; all the listed obstacles had an impact ranking in the same order of magnitude: from 38% for tax regulations to 25% for the lowest rank obstacle- cultural differences. Very few managers added spontaneously other obstacles to the proposed list, which may indicate that the most important systemic obstacles were covered by the former items of the questionnaire. Most managers indicated tax regulations as a barrier (38% reported at least a minimal impact). Issues with formal requirements of entering a foreign market (registration, licensing, etc.) was the second most widespread concern (at least a minimal impact, 36%. The third largest problem was obtaining information about a foreign contract law applicable to their transactions (35% said that this had an at least minimal impact on their trading activity). Language problems affected such transactions for 34% of companies. The same applies to problems with cross-border channels of delivery. About 3 in 10 respondents felt that resolving cross-border conflicts, obtaining legal advice regarding foreign contract law, after-sales maintenance issues, and difficulties in agreeing on the applicable foreign law had some impact on their cross-border trading. Cultural differences within the EU were considered to be the least troublesome; only 25% felt that this had at least a minimal impact on their operations. (See also Annex Tables 10-19). Overall, these factors affected the cross-border activities at least to some extent of most of the surveyed enterprises. At the EU level, 80% of companies confirmed that at least one of the proposed obstacles had at least a minimal impact on their trading with businesses in other EU countries. The least likely to say this were managers of Slovak (53%), Hungarian (65%) and Spanish (67%) companies, but even in these countries the clear majority felt that at least one of the listed barriers adversely affected their cross-border trade. Contract law in cross-border trade 100 A great barrier A medium barrier A small barrier An unimportant barrier EL PL SI DE PT CY IE BE UK EU27 DK LT SE NL CZ AT BG LU FR LV EE IT FI RO HU ES MT SK Q2. What impact do the following potential obstacles have on your decision to sell / purchase across border to / from businesses from other EU countries? Categories were created on the basis of the following obstacles: Difficulty in agreeing on the foreign applicable contract law or Difficulty in finding out about the provisions of a foreign contract law or Problems in resolving cross-border conflicts, including costs of litigation abroad or Obtaining legal advice on foreign contract law Base: all companies, % by country As mentioned, four items the survey asked about were related to problems with the use of contract law sanctioning cross-border transactions. About half, 49% of the companies surveyed in the EU page 16

17 indicated that at least one of these four items had at least some even if minimal impact on their cross-border activity 3. About one in six of the surveyed enterprises (16%) indicated that at least one of the factors was having a big impact, another 16% felt at least some impact and 17% confirmed at least a minimal impact of one of the contract law-related problems tested. However, the majority, 51%, claimed that none of these obstacles had any impact on their operations. Greek companies were the most likely to indicate that contract law-related barriers affected their cross-border activity to any extent: 75% of Greek enterprises and at least half of the enterprises in Poland (59%), Slovenia (54%), Germany (51%), Portugal, Cyprus, Ireland, Belgium and the UK (50% each) indicated that at least one of these barriers had an impact on their inter-eu business-tobusiness trading. On the other hand, 68% of companies in Slovakia, 67% in Malta and 61% in Spain, felt that contract law-related difficulties having no impact at all. As the graph below clarifies, contract law-related issues posed a barrier more or less equivalent to practical difficulties of trading with other businesses cross-border (the latter being language problems, issues with cross-border delivery and after-sales maintenance). The surveyed enterprises surveyed felt that the two types of obstacles were problematic to similar degrees, however practical concerns were slightly more often mentioned than those related to contract law (54% vs. 48% among those who were currently trading indicated that these had at least a minimal impact, respectively). Barriers to cross-border trade Currently involved in cross-border trade Interested in being involved in cross-border trade Contract law related obstacles Practical obstacles Tax regulations Formal requirements Contract law related obstacles A great barrier A medium barrier A small barrier An unimportant barrier Q2. What impact do the following potential obstacles have on your decision to sell / purchase across border to / from businesses from other EU countries? Base: all companies, % EU27 Those who were only considering involvement in such transactions were more likely than those who were currently trading to say that these potential barriers had at least a minimal impact on their decision to sell/purchase cross-borders, in each distinct dimension tested. In other words: companies only interested in cross-border trade were dissuaded from cross-border trade to a much greater extent than those already trading cross-border. 64% and 66% in this group said that contract law and 3 Note that for this analysis the answer categories were recorded as follows: great barrier: At least one of the contract law-related obstacles was considered to have a big impact medium barrier: At least one of the obstacles was considered to have some impact (but none had a big impact) small barrier: At least one of the obstacles was considered to have a minimal impact (but none had a big or some impact) unimportant barrier: None of the obstacles in the category had even a minimal impact. page 17

18 practical obstacles had at least a minimal impact on their cross-border trade compared to 48% and 54% companies trading cross-border currently. In the segment of those only planning to participate in cross-border trade, heavy concerns related to contract law problems exceeded those related to practical obstacles (great barrier: 33% vs. 27% respectively). These companies were roughly twice as likely as companies already engaged in cross-border trade to see each of the four categories as great barriers to trade. Compared to contract law-related and practical difficulties, tax regulations and the need to comply with formal requirements were less significant barriers to being involved in cross-border B2B transaction. This was true regardless of whether the company was already trading or was only planning on it 4. It must also be noted that contract law-related problems were typically not standalone issues they typically occurred together with other obstacles companies faced when trying to trade cross-border. Overall, only 3% of the surveyed enterprises cited contract law-related obstacles having at least a minimal impact on their cross-border trading, and at the same time reported no other problems interfering with their ability to carry out transactions with other EU countries. When looking at the relative burden imposed by contract law and practical difficulties by Member State, the opinions are somewhat more mixed. In most countries, the proportion of those affected by contract law problems was slightly lower than those who were affected by practical difficulties. However in a number of countries practical and contract law-related issues had affected (at least to some extent) the same proportion of businesses (in the Czech Republic, Cyprus, Latvia, Portugal, Romania, Slovenia and Slovakia results were within the margin of error). In Greece and Hungary contract law-related problems were considered more likely to affect cross-border trade than practical difficulties (the difference was 4 percentage points in Greece and 5 percentage points in Hungary). In all countries, tax regulations and the need to comply with formal requirements were less significant barriers of being involved in cross-border B2B transactions compared to contract law-related and practical difficulties. (% of "at least a small barrier") Contract lawrelated obstacles Practical obstacles Formal requirements Tax regulations EU Belgium Bulgaria Czech Rep Denmark Germany Estonia Greece Spain France Note that tax regulations and formal requirements were presented as individual items in the questionnaire but these are likely to consist of a number of issues (e.g. indirect taxes, direct taxes, needs to familiarise with tax regulations, need to adapt to different reporting requirements etc.) From a methodological point of view, it is possible that the aggregated impact of each of these would these have been asked separately could have been higher than the currently recorded value. page 18

19 (% of "at least a small barrier") Contract lawrelated obstacles Practical obstacles Formal requirements Tax regulations Ireland Italy Cyprus Latvia Lithuania Luxembourg Hungary Malta Netherlands Austria Poland Portugal Romania Slovenia Slovakia Finland Sweden United Kingdom As the table below illustrates, the proportion of those who felt that some of the contract law-related issues affected them was lower across segments than the proportion of those who felt that some of the practical difficulties applied. Tax regulations and formal requirements, as standalone burdens, were less troublesome for businesses in each segment. (% of "at least a small barrier") Contract lawrelated obstacles Practical obstacles Tax regulations Formal requirements NUMBER OF PERSONS EMPLOYED INVOLVEMENT IN CROSS-BORDER TRADE Currently involved Interested in being involved SALES CHANNELS In-premises sales only Distance sales methods only Both CROSS-BORDER TRANSACTIONS With one other country With 2-3 other countries With 4+ other countries page 19

20 ONLINE/E-COMMERCE Yes No INVOLVED IN B2B TRANSACTIONS AS A BUYER OR A SELLER Mainly as a buyer Mainly as a seller Equal involvement as a buyer and as a seller Overall, there were only small differences between business segments when it came to the contract law problems in cross-border trade. Roughly half of the companies (46%-58%) in each segment felt that the problems related to different contract laws in each Member State posed difficulties at least to a minimal extent. The overall picture rather homogeneously suggests that most enterprises were somewhat affected by these, but they were not often considered as great barriers. The only exceptions were, as discussed above, companies that indicated interest in cross-border trade but reported no current activity. Here respondents were more concerned about contract law-related issues than the average: 33% of companies in this group indicated that these issues would have a big impact on their cross-border activities. The least concerned about contract law issues were companies that only offered inpremises sales (i.e. no crossborder sales: 54% in this group felt that contract law-related problems had either no impact on their cross-border transactions) and those who traded with only one other country (59%). Conversely, those who were involved in distance sales and those who traded with more countries were more concerned about these issues. CONTRACT LAW-RELATED OBSTACLES a great barrier a medium barrier a small barrier an unimportant barrier NUMBER OF PERSONS EMPLOYED INVOLVEMENT IN CROSS-BORDER TRADE Currently involved Interested in being involved SALES CHANNELS In-premises sales only Distance sales methods only Both CROSS-BORDER TRANSACTIONS With one other country With 2-3 other countries With 4+ other countries ONLINE/E-COMMERCE Yes No INVOLVED IN B2B TRANSACTIONS AS A BUYER OR A SELLER Mainly as a buyer Mainly as a seller Equal involvement as a buyer and as a seller page 20

21 Impact of potential obstacles on companies decision to sell or purchase crossborder Currently involved in Interested in being involved cross-border trade in cross-border trade Tax regulations Formal requirements e.g. licensing, registration procedures Difficulty in finding out about the provisions of a foreign contract law Language (communication problems, translating documents, etc.) Problems with cross-border delivery Problems in resolving cross-border conflicts, including costs of litigation abroad Obtaining legal advice on foreign contract law After-sales maintenance abroad Difficulty in agreeing on the foreign applicable contract law Cultural differences Other Large impact Some impact Minimal impact No impact DK/NA Q2. What impact do the following potential obstacles have on your decision to sell / purchase across border to / from businesses from other EU countries? Base: all companies, % EU27 Graph sorted by any impact A more detailed look at the segment of companies only considering to be involved in cross-border B2B trade compared to current traders reveals that companies interested in cross-border trade are significantly more affected by all the listed obstacles than the current traders segment. Most of the obstacles are also 2-3 times more likely to create a large impact for companies interested in crossborder trade than for current traders. The barrier that had the largest impact for companies interested in cross-border trade was anticipated problems with resolving cross-border conflicts, which underlines a significant disparity between the anticipations of companies only interested (a large impact for 20%), and the experiences of those who were already involved in cross-border trade (a large impact for 8%). The rank order of the problems in two groups is however very similar to the overall picture (dominated by those who were currently trading, who made up the majority of the samples in each Member State, see section 1.1). The only individual concern where those only planning to be involved in cross-border trade were less concerned (relatively speaking, compared to other issues) than current traders was the aspect of cross-border delivery which ranked the second lowest in this segment. Another important observation is that only a minority (i.e. less than 50%) attributed no importance with regard to each but one of the individual barriers (the exception was cultural differences which even among those without a direct experience in cross-border trade with other businesses was dismissed as unimportant by the majority, 57%). The proportion of those who lacked an opinion on this question (considering all items) was systematically higher among those who were not currently involved in cross-border B2B trade. page 21

22 2.1 Contract law-related barriers This section looks at the four contract law-related barriers tested by the survey individually. Difficulty with agreeing on applicable contract law (which is subject of agreement among parties in B2B transactions) had the greatest impact on cross-border operations of enterprises surveyed in Greece: 16% in this country indicated that this problem had a large impact on their cross-border operations, and 44% indicated at least minimal impact. The proportion of those who were at least minimally burdened by this aspect was relatively high in Poland (38%), the UK (35%) and Slovenia (35%). Impact of potential obstacles on companies decision to sell or purchase cross-border Difficulty in agreeing on the foreign applicable contract law Large impact Some impact Minimal impact No impact DK/NA EL PL UK SI LU BE EU27 IE IT CZ FI DE EE NL BG DK LT ES PT FR AT SE CY RO LV SK HU MT Q2. What impact do the following potential obstacles have on your decision to sell / purchase across border to / from businesses from other EU countries? Base: all companies, % by country Graph sorted by any impact The most likely to state that such problems impacted their cross-border trading (even if minimally) were enterprises of at least medium size (44%), those who did not have direct trading experience (but were interested in it). In the latter group the proportion of those who felt this was a great barrier reached 14% and only 38% said it had no impact (18% had no opinion, see Annex table 11b.) Difficulties in finding information about provisions of foreign contract law was once again a widespread problem in Greece (26% indicated that this had a big impact on their operations, and 64% in this country reported at least a minimal impact), and above average results were detected in Poland (where 42% had problems with clarifying the terms of foreign contract law), Slovenia (42%) and Germany (38%). page 22

23 Impact of potential obstacles on companies decision to sell or purchase cross-border Difficulty in finding out about the provisions of a foreign contract law Large impact Some impact Minimal impact No impact DK/NA EL PL SI DE DK UK CY EU27 BE IT PT AT LT SE EE IE NL HU FI LU CZ RO BG ES FR LV SK MT Q2. What impact do the following potential obstacles have on your decision to sell / purchase across border to / from businesses from other EU countries? Base: all companies, % by country Graph sorted by any impact As to enterprise segments, the opinions are fairly similar to those outlined in the previous instance: medium-to-large enterprises (44%) but especially those who were only interested in being involved in cross-border trade (51%) felt any impact of this potential barrier. On the other hand, those who were trading with one other country only were least affected (65% claimed no impact). See Annex table 12b for more details. Impact of potential obstacles on companies decision to sell or purchase cross-border Problems in resolving cross-border conflicts, including costs of litigation abroad Large impact Some impact Minimal impact No impact DK/NA EL PL BE FR LU UK SI EU27 DK IE IT AT CY PT DE NL CZ SE ES MT FI RO LT HU EE BG LV SK Q2. What impact do the following potential obstacles have on your decision to sell / purchase across border to / from businesses from other EU countries? Base: all companies, % by country Graph sorted by any impact Costs and other problems related to cross-border litigations impacted the cross-border B2B trading activities of Greek companies the most. 25% of the enterprises surveyed in Greece felt that this had a big impact on their cross-border activities, and 51% felt at least minimal impact. Polish (36%), Belgian and French (both 34% 5 ) enterprises also expressed such concerns more frequently than firms in other Member States. 5 note that for France the figures nominally add up to 35% on the chart, due to rounding page 23

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