Vol. 9.2, July 2005


European Private Law: A European Standing Committee on Legal Terminology as a Next Step?

Binding or soft European private law: The Common Frame of Reference
After the rejection of the European Constitution first in France and then in the Netherlands, it remains to be seen what will happen with various integration initiatives, such as the creation of a Common Frame of Reference and an optional model of European contract law. The ‘old’ European treaties, still applicable today, do not provide an adequate legal basis for the enactment of either a binding Common Frame of Reference (CFR) or an optional (‘soft’ law) model. By ‘soft law’ I mean rules that do not emanate from a legislative body, following formal legislative procedures and giving these rules binding authority, but rules pronounced by a governmental or an EU institution using its influence to make rules accepted in legal practice, thus giving these rules persuasive authority. For a discussion of the various methodological questions that may be raised here I refer to Elena Ioriatti ‘A Methodological Approach for a European Restatement of Contract Law’, Global Jurist Topics, Vol. 3, No. 3 (2003), Article 4.

Does this mean that the work on a project such as the CFR should therefore now be suspended? In my view, the answer is, without any hesitation, that it should continue as long as the project’s aim is to offer a set of non-binding principles. These principles may be adopted by the European Commission as guidelines for European legislation. They may also be chosen, on a strictly voluntary basis, as a set of general conditions by contracting parties, given the generally accepted freedom of contract. Concerning their functioning as European ‘guidelines’, I think that the CFR can be, first of all, a highly useful and valuable database of unambiguous and coherent legal terminology. Secondly, it can be a set of models that may constitute the basis for revision of the existing acquis communautaire or of future European law. See also the various contributions to a meeting organised by the European Law Academy in Trier (2003): ‘A Common Frame of Reference: How Should It Be filled?‘.

Except for these two possibilities (functioning as guidelines or as an optional model of general conditions), the CFR can have no directly binding effect. After the European Council or a Council of Ministers has accepted the CFR either as guidelines or as an optional model, it can only acquire the status of ‘soft’ law, not of binding law. It is doubtful, to say the least, whether the CFR can be enacted as a directive or a regulation given the absence of a legislative authority in this area. If the CFR were to be laid down in the form of a recommendation, it would have no binding force either (cf. Articles 110(2) and 249 EC). The same would be true if the European Commission were to express an ‘opinion’ that it considers the CFR to be a set of guiding principles. This will even be the case when, in the process, not only the European Parliament, but also stakeholders have been consulted. The view has been expressed that a European Discussion Forum should be created as a place where interested parties (stakeholders and politicians) can meet and discuss the CFR, in order to give it more democratic legitimacy. I refer to the documents on the CFR in which this idea is expressed: especially the Commission’s Communication ‘European Contract Law and the Revision of the Acquis: The Way Forward’ and other documents published on the Internet. Informal and ad hoc procedures, however, cannot change the law-making power balance between the EU and the Member States. Such a change in law-making power requires an explicit and deliberate amendment to the treaties, given the enormous consequences for the sovereignty of the Member States and, in the case of the CFR, their systems of private law. This follows from the principles of subsidiarity and legal certainty.

Implications of the Pupino judgment
The recent Pupino judgment (Case C-105/03) does not change this analysis in any way. In this judgment, the Court of Justice declared that framework decisions made in the area of criminal law (see Articles 34 and 35 EU) do have effect in the national legal systems. The court, of course, employed arguments particularly relevant to the area of criminal law, but also stated arguments that seem to imply that it is willing to extend the effect of EU law more generally. I refer to paragraphs 42 and 47 of the judgment:

42. It would be difficult for the Union to carry out its task effectively if the principle of loyal cooperation, requiring in particular that Member States take all appropriate measures, whether general or particular, to ensure fulfilment of their obligations under European Union law, were not also binding in the area of police and judicial cooperation in criminal matters, which is moreover entirely based on cooperation between the Member States and the institutions, as the Advocate General has rightly pointed out in paragraph 26 of her Opinion.
. . .
47. The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem. That principle does, however, require that, where necessary, the national court consider the whole of national law in order to assess how far it can be applied in such a way as not to produce a result contrary to that envisaged by the framework decision.

To assess the impact of the Pupino judgment, one should, first of all, appreciate that the CFR deals with private law, not criminal law. Secondly, the Pupino judgment was almost immediately rejected – at least so it seems – in the recent decision of the German Constitutional Court concerning the European Arrest Warrant. By a 6–2 majority the Court declared the German implementing statute (the Europäisches Haftbefehlgesetz, the European Arrest Warrant Act) void on the ground that it violated the German Constitution; see BVerfG, 2 BvR 2236/04 vom 18.7.2005, Absatz-Nr. (1 - 201). An English summary of the judgment can be found on the website of the Constitutional Court. Particularly interesting in this respect are the dissenting opinions of Justice Lübbe-Wolff and Justice Gerhardt, as they clarify the impact of the majority decision on the status of the Pupino judgment. It seems that the German Constitutional Court does not agree with the course taken by the ECJ in that judgment. In the words of Justice Lübbe-Wolff:

159. . . . Für die fallabgehobene Aussendung dunkler Signale an den Gerichtshof der Europäischen Gemeinschaften, der diese Bestimmung kürzlich eher extensiv angewandt hat (vgl. EuGH, Urteil vom 15. März 2005 - C-209/03 -, EuZW 2005, S. 276 ff.), sollten Urteile des Bundesverfassungsgerichts nicht zur Verfügung stehen.

Justice Gerhardt was even more explicit:

189. Ich bedauere sehr, dass der Senat sich insoweit einer konstruktiven Mitarbeit an europäischen Lösungen verweigert. Namentlich mit der Behauptung eines inneren Zusammenhangs von Auslieferungsverbot und Staatsangehörigkeit als Status sowie mit dem undefiniert gebliebenen Topos des Vertrauens in die Verlässlichkeit der eigenen Rechtsordnung betont er einseitig die nationale Perspektive, statt einen Ausgleich zwischen den Bindungen des nationalen und des europäischen Rechts herzustellen. Dass er weder begrifflich noch in einer Diskussion möglicher Konsequenzen auf das Urteil des Gerichtshofs in der Sache Pupino eingeht, dient dem Recht nicht.

The principles of subsidiarity and proportionality seem, in the opinion of the German Constitutional Court, to imply a far greater freedom for the Member States than that allowed by the ECJ. It should be added, however, that the ECJ also refers to the limitations set by general principles of law, such as legal certainty and non-retroactivity.

The conclusion can only be that informal discussions, albeit at a very high level and conducted with the utmost integrity, following informal and ad hoc procedures as such cannot result in binding law.

Tensions at the heart of the European law-making project
The rejection of the European Constitution by France and the Netherlands shows a growing rift between the aspirations of politicians at the European level and a majority of citizens in these countries. It also shows that Europe is perceived fundamentally different by politicians and citizens. Politicians seem to consider economic, political and legal integration as an aim in itself, whereas citizens consider integration as a process of alienation from existing government structures, leading to a government from a far distance. The recent decision, mentioned above, by the German Constitutional Court – implicitly disapproving of the ECJ´s Pupino judgment – expresses the same sentiment, but at a technically high level of legal reasoning and decision making. Both the rejection of the European Constitution and the decision by the German Constitutional Court shows this divergence between, on the one hand, those in the avant garde of the development of European law and, on the other hand, at least some of the Member States and their citizens. This is also true in the area of European private law. The avant garde of European private lawyers would like to extend the European Union’s law-making power to cover the whole area of private law. To achieve this goal without creating a further divergence between what they aspire and what will be acceptable in the various Member States, clearly more will be required than extensive informal discussions, even if the results of these discussions are laid down in the form of ‘soft’ law. Also, the European Commission is showing awareness that developments with regard to European private law should not go too hastily. The Commission has made it clear in its recently published Green Paper on ‘Mortgage Credit in the EU’ (COM(2005) 327 final, Brussels, 19.7.2005) that it does not intend to proceed hastily. This applies both to the question whether the Commission should fund further cooperation between owners and controllers of registers (see the EULIS project) and to the introduction of a European-wide uniform non-accessory type of mortgage, the so-called ‘Euromortgage’, as proposed by the Mortgage Credit Forum Group With regard to the Euromortgage, the Commission´s own words are: ‘The Commission invites views on the feasibility and desirability of the Euromortgage. It will, in any event, await the outcome of ongoing initiatives to inform its assessment of this issue.’

Nevertheless, it ought to be appreciated that the CFR project is of great value and absolutely worth the effort by all the people involved. The amount of comparative legal studies underlying the CFR is enormous. The reports are well researched and the result of solid comparative-critical analysis. One of the major results of the CFR will, no doubt, be the creation of uniform and coherent terminology. See, in this respect, Viola Heutger, ‘Law and Language in the European Union’, Global Jurist Topics, Vol. 3, No. 1 (2003) Article 3 and ‘A More Coherent European-wide Legal Language’, European Integration online Papers (EIoP) Vol. 7, No. 2 (2004).

Working language and legal English
A major problem with the CFR project is the use of only one working language. For the time being, the main working language within the CFR project is English, as is the case in several other major European legal research networks such as the European Civil Code project and the Acquis Group. This raises a further obstacle to giving the CFR the character of (soft) law. Does the use of English imply that the CFR in any of the other languages is merely a translation of the original English text and that it is the latter that should be referred to if the meaning of terms in other languages than English may prove to be unclear? The same question may, of course, be raised if, next to English, a limited number of other working languages is chosen. Given that under the European Treaties all official languages are equal, a precondition to a binding CFR – if at all possible, which I do not think – is that the CFR will also be available as an authentic text in all the languages. That alone is an immense task.

The use of English as a working language creates, as is well known, serious difficulties with regard to the use of civil law terminology. Either this terminology is translated into existing legal English, which means that both the translator and the reader have to be aware of the underlying conversion process and its dangers, or one can attempt to create an entire new terminology, which is legal English from a purely linguistic point of view, but is not traditional legal English. Of course, as a third alternative, one may choose to use both methods, depending upon the problems encountered. On the one hand, traditional legal English may be used whenever it is considered to be clear from the outset that both those who prepare the translation and those who employ it are aware of the inherent dangers of the method chosen. On the other hand, new legal English may be created when it is considered an excessively high-risk proposition to use existing legal English. The latter approach demands skill, experience and knowledge in all those involved. A good example of this third (‘mixed’) approach can be found in a number of English translations of the new Dutch Civil Code and the new Civil Code of the Netherlands Antilles and Aruba. I refer to translations made by Peter Haanappel, Ejan Mackaay, Hans Warendorf and Richard Thomas (Netherlands Business Legislation, accompanied by an online service, published by Aspen) and Hans Warendorf together with Ian Curry-Sumner (Family Law Legislation of the Netherlands and Inheritance Law Legislation of the Netherlands, both published by Intersentia).

Translating civil law terms into English common law terms or common law terms into civil law terms is a hazardous process that requires the utmost care. In order to stimulate adequate translations of legal terms, it is not enough to create a database with potential translations as have been compiled in the past by various government institutions and businesses. Such a database (Eurodicautom is a good example) are only a start. Once the various translations have been fed into the database, the actual translation work begins. Great care should be taken that the translations are uniform. This means that a choice will have to be made between the various translations as to which term is the most adequate. To be able to make this choice, a close collaboration between translators and comparative lawyers is necessary. At first sight it seems that this is not the real comparative work, but appearances can be deceptive. To make a correct translation and to make the correct choice between various proposed foreign terms, both the source and the target legal system will have to be critically analysed. In other words, it seems as if the comparative lawyers involved in this type of work do nothing more than create a list of terms, but in fact they do far more. The input of the translators is their experience with regard to making actual translations of legal texts, more often than not under great time pressure.

Standing committee on legal terminology of the Netherlands Comparative Law Association
Already more than twenty years ago, the Netherlands Comparative Law Association took the initiative to create a list of uniform translations of Dutch legal terms. This is done by a standing committee, working under the auspices of the Netherlands Comparative Law Association and composed of translators and comparative lawyers. In the next months, the committee will publish the third edition of its list of legal terms. Like the first edition, the second edition will give translations into English, French and German, but work is progressing to provide translations into Italian, Russian and Spanish. The list has gradually gained weight. The translations provided are used frequently and translators approach the committee with suggestions and remarks. Work on the list proves to be a long-term effort, but also fruitful and rewarding.

A European standing committee on legal terminology?
Given the experience in the Netherlands, one may wonder whether the creation of a standing committee of experts should not be considered at the European level as a separate working group within the Common Frame of Reference project.

This issue

The publication of this issue has been delayed due to technical problems. Issues 3 and 4 will be published according to schedule.

In this issue we publish the valedictory lecture of Professor Esin Örücü on aspects of convergence and comparative law, an article on divorce mediation in Europe by Miquel Martín Casals and an article on wage moderation by César F. Rosado Marzán. We also publish a book review by Bram Akkermans of D.W. Aertsen, De trust. Beschouwingen over invoering van de trust in het Nederlandse recht (on the introduction of the English trust into Dutch law).This issue further contains an announcement concerning the fees for the conference of the International Academy of Comparative Law 2006, which will be held at Utrecht.

Sjef van Erp,

Cite as: Sjef van Erp, Editorial - European Private Law: A European Standing Committee on Legal Terminology as a Next Step?, vol 9.2 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (July 2005), <http://www.ejcl.org/92/editor92.html>.

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