The Future of European Law: Towards a European Law Institute?
In complex, multi-level legal systems, such as the United States and the European Union, full market integration can only be reached by unifying or harmonising certain legal areas. This is common wisdom. The question, however, is: which areas and in which form? Until now these choices have been made by politicians and government officials. Lawyers – particularly academic lawyers – have played a relatively minor role in this process, unless they were involved as politicians, civil servants or interest group representatives. The Draft Common Frame of Reference (DCFR: http://ec.europa.eu/justice_home/fsj/civil/docs/dcfr_outline_edition_en.pdf) is the first overall attempt by academic lawyers to propose new European law outside the sphere and control of politicians, government officials and lobbyists. This does not mean, of course, that the DCFR does not show particular policy choices. Like everyone else, academic lawyers are influenced by their upbringing, education and working environment, and these will be reflected in their analysis.
It can therefore be no surprise that when the DCFR was published, a debate arose on, among other aspects, the underlying political and economic model of the DCFR. I need only refer to the writings by Hesselink (see, e.g., his study for the European Parliament on CFR & Social Justice: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1270575), Jansen and Zimmermann (e.g., their recent article “A European Civil Code in All but Name” in the Cambridge Law Journal: http://journals.cambridge.org/action/displayJournal?jid=CLJ) and Micklitz (see the summary of his article in the Yearbook of European Law 2009: http://www.eui.eu/Documents/DepartmentsCentres/Law/Professors/Micklitz/VisibleHand.pdf).
What I find regrettable and even worrying is that the debate tends to become a scholastic pursuit. The debate on the future of European law should not be limited to a scholastic discussion among a relatively small circle of academics. Practitioners (and as I see it, these do not include lobbyists) should be far more involved. And particularly so, given that the Commissioner responsible for the further development of the DCFR into a “political” CFR, Viviane Reding, has made it very clear that she intends to proceed with the project: http://ec.europa.eu/commission_2010-2014/reding/justice/index_en.htm. Although civil servants within the European Commission have approached experts in order to build an advisory “expert group”, the initial choice and proposal for deciding what will be in the CFR and what will not will be is Commissioner Reding’s. See the “roadmap”: http://ec.europa.eu/governance/impact/planned_ia/docs/23_jls_common_framework_reference_contract_law_en.pdf, the Commission decision to create an expert group: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2010:105:0109:01:EN:HTML and the press announcement concerning the establishment of this expert group: http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/595&format=HTML&aged=0&language=EN&guiLanguage=en.
I believe it is high time for the law making process in Europe to become more transparent, decentralised and independent. Preparing legislation by conducting comparative legal and multidisciplinary (e.g., law and economics) research should be done by experts from all over Europe, it does not necessarily have to be done in Brussels and it should be free from intervention attempts by the European institutions, national governments and interest groups. The establishment of a European Law Institute (ELI), modelled after the American Law Institute (http://www.ali.org), would be a considerable step forward. Not unexpectedly, in this regard too a debate has arisen. Some of the questions asked in this debate are: Should ELI be independent or should it be a European institution under the aegis of the European Commission or even the European Council? Should the ELI secretariat rotate among the various Member States or should it be established permanently in one particular Member State? I refer to the website of the Association for a European Law Institute, http://www.europeanlawinstitute.eu, and the programme of a conference organised by the European University Institute in Florence “A European Law Institute? Towards Innovation in European Legal Integration”: http://www.eui.eu/Documents/DepartmentsCentres/Law/News/2010/ELIPrelimProgramme.pdf and http://www.eui.eu/Documents/DepartmentsCentres/Law/News/2010/ELIscope.pdf. See also Commissioner Reding’s speech at the conference: http://europa.eu/rapid/pressReleasesAction.do?reference=SPEECH/10/154&format=HTML&aged=0&language=EN&guiLanguage=en. So far transparency does not seem to be a topic of discussion, but it it is only a matter of time before there will be a spirited discussion about who will decide ELI’s agenda and how its establishment should or should not proceed.
I would strongly recommend having a close look at how the American Law Institute is organised, its track record (especially the famous Restatements of the Law: http://www.ali.org/index.cfm?fuseaction=publications.categories&parent_node=1) and its various ongoing projects. Its website is a prime example of how transparent an organisation can be in the age of the Internet.
The future of Europe is fast becoming a shaky one given the expanding Euro crisis. Let us at least agree on a European Law Institute which may bring some stability to the legal integration process!
Nicole Kornet presents comparative observations on contracting in China, Joseph David engages in an exercise in comparative legal history by scrutinising Jewish and Islamic jurisprudential reasoning, and Olga Khazova gives a comparative overview of some recent trends in post-Sovjet familiy law. In addition, Constantinos Kombos reviews Nicola Countouris' book The Changing Law of the Employment Relationship: Comparative Analyses in the European Context. The two most recent Ius Commune lectures on European private law, by Christian Behrendt and Ilse Samoy, complete this issue. These lectures do appear in print, but the Ius Commune Research School graciously allows the EJCL to publish them online as well, a tradition that started in 2000.
Sjef van Erp