Vol. 4.4, December 2000


Ius Commune: A European Civil Code?

Ius Commune
In this issue of the EJCL, we start the publication of the Ius Commune Lecture series. 'Ius Commune' is the name of the law which the European regions had in common before the codification movement. It also refers to the search for a new common core of private law in Europe on which a European Civil Code can be built. Part of this research in the Netherlands is done within the so-called Ius Commune Research School. In this research school, the law faculties of the Universities of Leuven (Belgium), Maastricht and Utrecht (the Netherlands) take part, together with researchers from other Dutch law faculties. Under the auspices of the Ius Commune Research School, a series of lectures is published in which leading comparative lawyers discuss an aspect of the new Ius Commune. The EJCL will make these lectures available electronically before they are published in a printed version. As the first two lectures have already been published in print, we now also make them available electronically in this issue of the EJCL, for the sake of completeness. In this we deviate from our general editorial policy, which is to publish only articles not previously published elsewhere. However, we felt that an exception might be appropriate here, in order to have the whole series on our web site.

The Ius Commune Lecture series is comparable to the series published by the Centre for comparative and foreign law studies in Rome (the so-called 'blue books'), also available both electronically and in print. The URL for the electronic version of these 'blue books' is http://www.cnr.it/CRDCS/centre.htm#LIST OF PUBLICATIONS:

Although the electronic version of the Ius Commune Lecture series is published under the final responsibility of the EJCL's editorial board, I should mention that the printed version of the series is edited by Martijn Hesselink (University of Amsterdam), Ewoud Hondius (Utrecht University), Jan Smits (Maastricht University) and Sophie Stijns (Catholic University of Leuven).

European Civil Code
As indicated above, the search for a Ius Commune is aimed at laying the foundations for a Civil Code which would be applicable in all Member States of the European Union. It is especially the European Parliament which is a driving force here. On 21 November of this year, the Committee on legal affairs and the internal market of the European Parliament held a hearing on approximation of civil and commercial law in the Member States, based on a working document prepared by Klaus-Heiner Lehne. The agenda and the working document (DT\424755EN.doc) can be found on the web site of the European Parliament: http://www.europarl.eu.int/meetdocs/committees/juri/20001121-hearing/juri20001121-hearing.htm

The document begins with the following words: 'History shows that major communities have generally adopted standard codes of civil law.' The document then mentions the continental European legal systems as examples and the United Kingdom as a notable exception. It continues: 'However, it is safe to say that a position of economic supremacy can only be attained if there is a certain degree of "legal rationality". A legal system can be described as rational notably where it facilitates commerce and provides an efficient mechanism for settling disputes in the event of conflicts of interest.' The document then explores if - and, if so, in which areas - a European Civil Code might be feasible. It takes the existing directives in the area of private law as a starting point, complaining that these directives are not consistent with one another. The existing directives should, therefore, be consolidated in a single text, new internal market directives should be added, and the result would provide the 'nucleus and crystallisation point for a European Civil Law Code'. As to the legal basis for this project, the document refers to articles 65 and 95 EC. Article 65 deals with judicial cooperation in civil matters having cross-border implications (conflict of laws and of jurisdiction, good functioning of civil proceedings in the Member States). Article 95 concerns the approximation of laws to create the internal market. (The text of the EC treaty can be found at http://www.europa.eu.int/eur-lex/en/treaties/index.html.) The document ends by calling for a pragmatic discussion 'without any ideological preconceptions'.

I think that anyone who is confronted with European legislation (either in practice or as an academic researcher and teacher of law) will certainly agree with the complaint about directives not always being consistent. But is this sufficient reason to create a (standard) European Civil Code? First of all, the document ignores the experience in regard to economic integration in federal states such as the United States, Canada and Australia. It also ignores the experience in other regional economic integration frameworks such as NAFTA. Looking at the United States for example, it can hardly be said that, as this country does not have a standard American Civil Code, its legal system lacks 'legal rationality'. The same is true for the other countries and regional economic integration frameworks I mentioned. My feeling is that Europe is starting to look more inward than outward, at the same time jeopardizing the growing mutual understanding and respect between common and civil lawyers. If one exclusively looks at continental European history, it is true that countries such as Germany and Italy expressed their nationhood through the enactment of uniform codes. But again, if one looks at the United States for example, it becomes immediately apparent that such is certainly not the only way to express and create unity, political stability and economic prosperity. This more inward-looking tendency fences the European Union off from experience by others, from which we might learn that European legal history does not provide the sole example regarding how to proceed.

If we follow the road map laid out by the European Parliament document mentioned above, I fear that we are heading for an increasing amount of European litigation on questions of competence. Questions such as: Is the European Community competent to issue a regulation or a directive in a particular field? Does a particular regulation or directive relate to an issue on which majority voting is possible? To a growing degree, citizens or even Member States - in the future, after the Treaty of Nice enters into force, particularly the smaller EU Member States - may become very cautious as to measures taken at the European level, because Europe might be seen as an alien institution, which is merely interfering in local (national) affairs. (The draft Treaty of Nice can be found at: http://ue.eu.int/cig/nice/niceen.asp?lang=en.) This feeling will only be reinforced by the growing influence of the four larger Member States together with a still existing democratic deficit and highly bureaucratic decision-making procedures which give ample opportunity for not so transparent lobbying efforts. Increasingly, the European Court of Justice will then become the final instance where rights of the citizens and Member States find protection against European institutions that by their very nature are inclined to harmonise the law, because they tend to think 'European', not 'local' or 'national'. The result would be that the European Court of Justice, not unlike the US Supreme Court, will have to rule frequently on matters of competence and jurisdiction. The recent case of Bush v Gore, essentially a case about the relationship between federal and state interests, is a notable US example showing how high tensions in this field can rise. (The decision can be found at http://www.law.cornell.edu/background/election/.) Inevitably, such a development would politicise the court and the procedure leading to the appointment of justices for the Supreme Court. Furthermore, private law would strongly be constitutionalised. A recent example which shows that this development is already underway are cases C-376/98 (Germany v Parliament and Council) and case C-74/99 (The Queen v Imperial Tobacco Ltd and Others), to be found at the court's web site http://curia.eu.int/index.htm. In these cases, the European Court of Justice ruled that directive 98/43/EC of the European Parliament and of the Council, dated 6 July 1998, on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (OJ 1998 L 213, p. 9), based on article 100a EC Treaty (now article 95 EC), was null, as it could not be based on that article. It is no coincidence that the constitutionalisation of private law is a growing topic of interest to private lawyers in Europe.

Although I am not a Euro-sceptic, I do think that studying legal systems to find a new European Ius Commune should - at least for the time being - be more of an academic endeavour than a political programme. Let it first be established whether a common core exists or not; the political debate should start thereafter. Once the results of academic research in this area are used by academics or others to promote a harmonisation agenda, the solitude and rest of academic scholarship is left behind and the political arena is entered. In that arena, other rules apply than in the academic world, and it is certainly not a place where one can discuss legal integration without any ideological preconceptions. The US experience has made this abundantly clear.

Sjef van Erp,

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