The Politics of a European Civil Code

Abstract

Last year the European Commission published its Action Plan on European contract law. That plan forms an important step towards a European Civil Code. In its Plan, the Commission tries to depoliticise the codification process by asking a group of academic experts to prepare what it calls a 'common frame of reference'. This paper argues that drafting a European Civil Code involves making many choices that are essentially political. It further argues that the technocratic approach which the Commission has adopted in the Action Plan effectively excludes most stakeholders from having their say during the stage when the real choices are made. Therefore, before the drafting of the CFR/ECC starts, the Commission should submit a list of policy questions regarding the main issues of European private law to the European Parliament and the other stakeholders. Such an alternative procedure would repoliticise the process. It would increase the democratic basis for a European Civil Code and thus its legitimacy.

A European Contract Law, or an EU Contract Law Regulation for Consumers?

“…The most ambitious part of this work is concerned with elaborating a ''common frame of reference'' (CFR), which was presented in some detail in a Commission communication of 11.10.2004. 5 This CFR should be based on research and ''stakeholder participation'' (doubts expressed by Hesselink, 2004). It should combine -in good comparative law tradition -best solutions with regard to national law, the acquis, and international law such as the 1980 UN Convention on the International Sale of Goods (CISG).…”

The Common Frame of Reference (CFR) and the Principles of European Law on Commercial Agency, Franchise and Distribution Contracts

“…this network encloses, in particular, 8 the Study Group on a European civil code 9 chaired by Professor christian von Bar and the Research Group on the Existing Ec Private law, or "Acquis Group" 10 as well as the trento common core Group. the trento common core group 11 focuses on a functional approach requiring an unorthodox approach to legal concepts 12 and aiming only to describe legal issues, 13 whereas the Study Group and the Acquis Group aim at drafting a set of rules. Yet even though many researchers are working on drafting this academic common frame of reference for European contact law, the exact meaning of such a common Frame of Reference (cFR) is imprecise.…”

“…Lando [21] stressing the functional approach of the common core methodology. 12) Lando [21], p. 814. 13) Summarizing the methodology: Kötz [19], pp.…”

“…38) Opposing the idea of a European civil code because of diverging legal traditions and cultures throughout Europe: Micklitz [23], p. 3, yet stating that the cFR should include the acquis communautaire and consumer law. Stressing the need for political decisions on choices to be made (policy questions): Hesselink [12]. See also Lurger [22].…”

The Draft Common Frame of Reference (DCFR): A Giant with Feet of Clay

“…This chapter arises from the work of the Economic Impact Group (EIG). 1 The law and economics scholars regrouped in the EIG delivered contributions on many of the main themes of the academic DCFR, certainly as regards contract law. The first part of this chapter revisits basic principles which came through the various contributions and underpinned the work of the EIG.…”