Vol. 5.3, November 2001


Editorial Board - New URL

The Editorial Board of the EJCL underwent some changes. Regrettably, our English editor Richard Fentiman decided that, due to severe time constraints, he is no longer able to devote as much time as he would like to the editorial work for the EJCL. He therefore decided to resign as editor. I sincerely thank him for having been on our editorial board from the very beginning and for his ever helpful comments and support.

New to our Editorial Board is Prof. Corien Prins. She is a professor of IT and law at Tilburg University, and she is a well-known academic expert in that field. I gladly welcome her to the Board of Editors. The aim and scope of the EJCL are to publish articles and promote discussion in regard to the methodology of comparative law and comparative private law. This includes IT and law, and therefore in this issue of the EJCL we publish an article by W. Harry Thurlow, entitled 'Electronic Contracts in the United States and the European Union: Varying Approaches to the Elimination of Paper and Pen'.

As of 1 January 2002, we will no longer receive a grant from IWI. To enable us to continue working as we have done so far, the EJCL will be financially supported by the law faculties of Tilburg, Utrecht and Maastricht. We greatly appreciate this support and the trust and confidence it expresses. I would like to use this opportunity to thank particularly the Tilburg Faculty of Law for hosting the EJCL web site and offering our assistant editor a 'home base'.

We decided to change the EJCL's URL. There are several reasons for this decision. In the next two years, Tilburg University's official Dutch name will be changed and, as a result, all Tilburg University URLs will be changed. As the readership of the EJCL is continuously growing, we decided to use this opportunity to apply for our own URL. As of 1 January 2002, our new URL will be: http://www.ejcl.org/. This URL also expresses that the EJCL is no longer financially supported by one law faculty only. The current URL will remain active for at least a year, in order to avoid potential problems for users and to make it possible to update bookmarks or favorites.

The European Union and Private Law

On 11 July of this year, the European Commission published a green paper (COM (2001) 130 final), expressing its ideas as to the future development of European contract law. The paper can be found at the following URL: http://europa.eu.int/comm/off/green/index_en.htm. In this paper, the Commission discusses existing European legislation in this area (the acquis communautaire), relevant international instruments, the various projects aimed at drafting a European Civil Code and questions relating to the appropriate form to be chosen, and it presents an overall structure of the acquis communautaire and the instruments mentioned. As to the form, four options are mentioned: abstention from initiatives, drafting non-binding principles, improve the quality of legislation already in place and introduction of new comprehensive legislation at EC level. In regard to the last option, the Commission mentions the various possibilities under the European Treaties: regulation, directive and recommendation, without expressing its own preference. In this respect, three other Commission papers should also be mentioned: the Commission Report to the European Council on Better Lawmaking 2000 (pursuant to Article 9 of the Protocol to the EC Treaty on the application of the principles of subsidiarity and proportionality), Brussels 30 November 2000, COM (2000) 772 final, the Interim Report from the Commission to the Stockholm European Council, Improving and simplifying the regulatory environment, Brussels 7 March 2001, COM (2001) 130 final (the COM papers can be found at http://europa.eu.int/eur-lex/en/index.html, the portal to European Union law), and the Green paper on European consumer protection (also to be found at http://www.europa.eu.int/comm/off/green/index_en.htm).

The communication on European contract law should be read in the light of a working paper written for the European Parliament entitled 'The Private Law Systems in the EU: Discrimination on Grounds of Nationality and the Need for a European Civil Code' (Legal Affairs Series JURI 103 EN of June 1999, to be found at http://www.europarl.eu.int/workingpapers/juri/pdf/103%5Fen.pdf). The authors of this report are O. Lando (European contract law generally), M. Barendrecht and M. Loos (service contracts), J. Basedow (insurance contracts), C. von Bahr (non-contractual obligations, especially tort; statutory obligations), U. Drobnig (personal and real credit security) and K. Kerameus (civil procedure). More general problems are discussed in this report by C. von Bahr and E. Hondius (the study group on a European Civil Code) and W. Tilmann and W. van Gerven (the competence to create a uniform European law of obligations and property).

It is not clear, yet, in which direction the discussion will go and whether the Commission and the European Parliament will, at the end of the day, conclude that a European Civil Code - perhaps limited to consumer contracts or so-called 'economic law' - in the form of a directive or even a regulation may be desirable. It is also unclear in which direction the discussion in the EU member states will go, especially in the United Kingdom and Ireland. The academic discussion and the resulting legal literature on the subject of European private law are growing steadily. A good starting point is the ECLAS web site: http://www.europa.eu.int/eclas. See, e.g., D. Caruso, 'The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration', to be found at the Jean Monnet Program web site of Harvard University: http://www.jeanmonnetprogram.org/papers/papers96.html (working paper 9/96).

Several working groups (established in Germany, Italy and the Netherlands) are preparing drafts for a European Civil Code. As such, their work is highly interesting, because it will lead to an enormous amount of comparative information on the various legal systems of the European Union. It will also make clear where a common core of private law exists and where divergence is still present. What is understood by 'common core' or 'convergence', on the one hand and 'divergence', on the other, is of course a matter of debate. What can be qualified as a rule and what as an exception is in part a matter of interpretation and appreciation. It can also be debated whether a purely fact-oriented approach, as advanced by the Trento common core project, is possible. Fact and rule are not as separate as they may seem: a judge chooses facts she sees as relevant in the light of the rule that calls for application, while the rule to be applied is chosen in the light of the facts.

The work done in these European Civil Code working groups is entirely academic and shielded from outside attempts to influence the outcome. As such, the results run the risk of becoming 'professors' law' (Professorenrecht, as it is called in German). This need not be a bad thing. Lobbying groups can have an enormous impact on the political decision-making process and attempts to reach a balanced result. Yet there is another side to this coin. The law which governs us is not the law given by a distant group of learned lawyers, but is the result of a mixed process of political choices by the parliaments of the member states and of decisions by judges, government action, legal practice and legal writing. The European Union is built on the idea of a social and democratic rule of law. In the end - at least this is the ideal - the citizens of Europe, either through their politicians or more directly through a referendum, will decide about the law which governs them. We may not like the outcome of this process, but this is what democracy is all about: the majority decides, taking into account the views of the minority, within the limits set by fundamental human rights. These ideas are not new; they can be found in the Federalist Papers already (see, e.g., http://www.yale.edu/lawweb/avalon/federal/fed.htm), which are, at least partially, inspired by ideas earlier developed in Europe.

Another aspect also deserves close scrutiny. Obviously, the European Parliament and the Commission are considering which form to choose for a possible European Civil Code: soft law or hard law? If consistency at the European level is to be reached immediately, so it might be argued, hard law is the best method. One should bear in mind, however, that consistency at the European level in day-to-day legal practice will lead to inconsistency at the level of the member states. Suppose a European Civil Code were to be enacted containing a general part on the law of obligations (contracts, torts, statutory duties) and personal property security interests. Various fundamental questions would then arise, such as: Which parts of a national Civil Code are still applicable next to the European Civil Code? How should gaps be filled (at the European level, or at the level of the member states)? The result will be that the duplex ordo which already exists at the level of the member states (the European legal order next to the national legal order) will create the opposite of transparency, the aim of the European Civil Code. The problems which the member states already have when implementing directives or when confronted with regulations (e.g. in the area of private international law) will not be diminished - as is predicted - but will be far worse. The national Supreme Courts will no longer be able to create certainty and unity within their jurisdiction, as they will have to refer all matters of interpretation of European private law to the European Court of Justice. This court already is overloaded. It also means that national parliaments suffer an enormous loss of control, as the enactment of a European Civil Code de facto means a transfer of sovereignty to the European institutions. Given the still existing democratic deficit at the European level, it would mean that European law is no longer backed by a democratic political process. At the European level, the legislative process is also much less transparent than it is at the level of the member states. The fact that the work done on the European Civil Code has been continuing, both within the bureaucracy of the European Parliament and the Commission and within the various working groups, in a secluded and shielded environment, already creates a mixed atmosphere of anxiety and worry.

Increasingly, it does not really matter anymore whether the European Civil Code is laid down in a directive or a regulation. In both cases the member states have no other option but to follow the literal text of the enactment, also in the case of a directive. Even though the EC Treaty stipulates that in the case of a directive the member states can choose form and method of implementation (article 249 EC), this is now becoming obsolete as the result of recent ECJ case law (Commission/Pays-Bas, Case C 144/99), to be found via the portal on European Union case law: http://europa.eu.int/eur-lex/en/search/search_case.html. In this case, the ECJ dismissed the argument by the Dutch government that the directive on unfair terms in consumer contracts did not need any implementation as to articles 4(2) and 5, as these provisions were already implemented through Dutch case law. Is Pierre Legrand right after all when he warns that the development towards a harmonised or unified European law in fact is a development towards a continental-European centralist and positivist approach to law, denying the values of a case law system as it exists in England and Ireland? The ECJ expresses that rules in statutory format are more informative and more certain than rules developed through case law, as case law may change. Surely statutory law can change as well? And could it really be that, when German or Belgian consumers cross the borders with the Netherlands, they have the implementing measures of the unfair terms directive in the glove compartment of their cars? I doubt it.

The research that is now being conducted on the European Civil Code is, as I mentioned earlier, work of very great value. The very moment, however, that the results of that work are being qualified as normative and enactment is considered, a serious and open political debate should follow. I therefore welcome the idea that the results of the work on the European Civil Code will be made publicly available through various web sites; see http://www.sgecc.net/, http://www.europe.uos.de/ECC/ and http://ecc.kub.nl/.

Sjef van Erp,

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