Vol. 7.1, March 2003


Codifying European Civil Law: From a General Hard Law to a Sector-Specific Soft Law Project?

On several occasions during the past few years, I discussed the ideas and work regarding a European Civil Code. It now seems that the focus of attention is shifting from drafting a comprehensive code to drafting framework directives, an optional code, restatements and principles.

Framework directives are aimed at consolidating and codifying the existing 'acquis communautaire', which is frequently perceived as unsystematic and terminologically inconsistent; see the recent Consultation on the Simplification of the Community Acquis and the Commission's Communication to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions; Updating and Simplifying the Community 'acquis', {SEC (2003) 165} COM(2003) 71 final (Brussels, 11.2.2003), to be found at: http://europa.eu.int/yourvoice/forms/dispatch.jsp?form=247&lang=EN. Reference may also be made to the Commission's Communication to the European Parliament and the Council: A More Coherent European Contract Law - An Action Plan, COM(2003) 68 final, (12.2.2003); see http://europa.eu.int/comm/consumers/cons_int/safe_shop/fair_bus_pract/cont_law/index_en.htm. (More details concerning the Action Plan can be found at: http://europa.eu.int/prelex/detail_dossier_real.cfm?CL=en&DosID=180632.) The Action Plan is the outcome of a consulting process which took place as a result of the Communication on European Contract Law (also to be found at the URL which gives access to the Action Plan). For interesting comments on the Communication, reference may be made to Dirk Staudenmayer, 'The Commission Communication on European Contract Law and the Future Prospects', 51 International and Comparative Law Quarterly (2002), 673 ff., also available electronically at http://www3.oup.co.uk/iclqaj/hdb/Volume_51/Issue_03/pdf/510673.pdf. In spite of all the ideals which one might foster regarding European legal integration, it is becoming clear that the political reality is such that only more limited (re)codification of civil and commercial law will be considered an acceptable proposal for further debate.

The same tendency can be observed in the approach which regards a European Civil Code as an 'optional instrument', a model that could be chosen by the parties as the law applicable to their legal relationship. The European Civil Code would then be a legal instrument on the borderline of private international law and uniform law. In the words of the Action Plan:

90. Some arguments have been made in favour of an optional instrument, which would provide parties to a contract with a modern body of rules particularly adapted to cross-border contracts in the internal market. Consequently, parties would not need to cover every detail in contracts specifically drafted or negotiated for this purpose, but could simply refer to this instrument as the applicable law. It would provide both parties, the economically stronger and weaker, with an acceptable and adequate solution without insisting on the necessity to apply one party's national law, thereby also facilitating negotiations.

This approach comes very close to regarding the European Civil Code not as a (semi-) official legislative text, but as a 'restatement' or set of 'principles'. As such, it would not be binding upon the parties, unless as a result of their free choice. Parties would make that choice because they would be persuaded that the code is well balanced and 'neutral', i.e. not directly connected with the law of any of the member states.

Simultaneous with this shift from a hard law approach to a soft law approach a feeling seems to be growing that a European Civil Code - in whatever form - comes too early or might even be based on the wrong rationale. During the conference on European Constitutionalisation of Private Law, held in Amsterdam on 28 March 2003, Stephen Weatherill discussed the European Community's legal competence to act in the field of private law and presented a descriptive and normative investigation. He mentioned two rationales for legal integration: the 'market-making' or 'economic' rationale and the 'constitutionally adventurous' rationale. One wonders whether, given the present status of European integration and the political disarray that can be seen, it would not be wise to return to the fundamentals of European legal integration and be inspired by the economic, not by the constitutionally adventurous rationale. The heart of the European Union still is the Economic Community and the common (internal) market. Legal integration should proceed as far as it is vital to the establishment and further development of this market - the word 'market' understood in an economic, not a political sense. Any legislative project, whether aimed at hard or soft law, which is intended to transcend these fundamentals is, at least for the time being, bound to create more problems than it is intended to solve. Furthermore, it should not be forgotten that the new member states have gone through a burdensome and expensive process of adopting the existing 'acquis communautaire' in their legal systems, sometimes after a first complete revision of their laws because of the change from a centrally planned economy to a market economy. Will they really have to go through a, perhaps third, process of law reform within the coming decade?

As I have also indicated on numerous occasions, this does not mean that the work done by academic scholars and practitioners, both individually and in smaller or larger groups, is not important. On the contrary, the work done by, e.g., those involved in the Trento Common Core project and the Study Group on a European Civil Code is an enormous source of authoritative information on the common core of European private law and of possible uniform solutions in areas where the European Community badly needs harmonised or uniform law. An example of such an area is the law on secured transactions.

Commercial transactions - especially cross-border commercial transactions - will certainly benefit from the existence of a uniform regime of security interests. This is why so many law reform projects concern personal property security interests. I refer to the United Nations Commission on International Trade Law (UNCITRAL), thirty-third session, New York, 12 June to 7 July 2000, document A/CN.9/475 to be found through http://www.uncitral.org/uncitral/en/commission/sessions/33rd.html and the Cape Town Convention on International Interests in Mobile Equipment, http://www.unidroit.org/english/internationalinterests/main.htm. See also the unification attempts within the framework of NAFTA by the National Law Center for Inter-American Free Trade. More information can be found on their web site, http://www.natlaw.com/secfin.htm. Other organisations, which aim at creating a transnational uniform law on secured transactions are the American Bar Association Central and East European Law Initiative (CEELI) and the Center for the Economic Analysis of Law (CEAL). CEELI is especially active in countries which have post-socialist transition economies. In March 1997, it published a 'Concept Paper on Secured Transactions Law', to be found at http://www.ceal.org/ceal-org/draftlaw.asp. Reference should also be made to the work done by the International Bar Association, Section on Business Law, committee J, subcommittee J-1 (Insolvency & Creditor's Rights Committee). More information on their work can be found at http://www.ibanet.org/index.asp. See also Law Commission for England and Wales, Consultation Paper No 164 on 'Registration of Security Interests: Company Charges and Property other than Land' (http://www.lawcom.gov.uk/) and Scottish Law Commission, Discussion Paper No. 121 on 'Registration of Rights in Security by Companies' (http://www.scotlawcom.gov.uk/index-1.htm).

In my view, the two developments described above (an increasing preference for limited (re-)codification and the growing feeling that European integration has moved too far away from its original purpose, viz. the creation of a common internal market) should be seen in tandem. An overall legislative programme such as the drafting of a European Civil Code can only succeed with broad-based political support.

This issue

In this issue we publish an article by Matthias Storme, 'Good Faith and the Contents of Contracts in European Private Law' and an article by Maurice Schellekens and our editor Corien Prins, 'Regulatory Aspects of Genomics, Genetics and Biotechnology: An Orientation on the Position of Germany, the United Kingdom and the United States'. As you may remember, last year we broadened our aim and scope and now also accept articles on comparative legal aspects of information technology. Further, we publish two review articles by Bernard Rudden, in which Eva Steiner, French Legal Method, and Hiroshi Oda, Russian Commercial Law, are discussed.

Sjef van Erp,

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