by Hans Christoph Grigoleit and Lovro Tomasic
The Acquis Principles (ACQP) are a systematic compilation of model rules and principles derived from the existing EU private law. They have been drafted by a group of European scholars (Research Group on the Existing EC Private Law, the so-called Acquis Group). Their purpose is according to Art 1:101(2) ACQP to ‘serve as a source for the drafting, the transposition and the interpretation of European Community law’. Together with the model rules drafted by the Lando Commission (Principles of European Contract Law (PECL)) and its successor organization, the Study Group on a European Civil Code, the ACQP are one of the two main sources for the Draft Common Frame of Reference (DCFR). Based on the structure of the restatements of the American Law Institute, the ACQP are published as a body of model rules with annotations and explanations in three languages (English, French and German). Although the Acquis Group intends to conduct research on all areas of private law, its work, so far, has focused on contract law.
2. The Acquis Group and its drafting process
The Acquis Group, consisting of more than 50 European scholars has been inspired by the European Commission’s action plan on ‘A More Coherent European Contract Law’ (COM (2003) 68 final). The group is directed by Hans Schulte-Nölke (coordinator) and Gianmaria Ajani (speaker). It has been participating in the Joint Network on European Private Law, whose work is funded on the basis of the Sixth Framework Programme (Decision 1513/2002) with the purpose of elaborating an academic draft for a Common Frame of Reference (CFR) of European contract law.
Within the Acquis Group, drafts of the individual sections are prepared by several drafting teams, each of which analyses the acquis communautaire with regard to a certain aspect of contract law (eg pre-contractual information obligations, performance, remedies). The drafting teams are organized in groups covering certain subjects. Their work is then published with annotations and commentaries (eg the Contract I Group focusing on pre-contractual obligations, conclusion of contract and unfair contract terms and the Contract II Group focusing on performance and remedies). After a draft has been prepared by a drafting team, it is submitted to the Redaction Committee and the Terminology Group, which revise the draft and prepare it to be presented at the group’s bi-annual plenary meetings. There, the drafts are discussed and modified before they are finally adopted or rejected in a voting procedure. With the democratic structure of its decision-making process, the group is committed to pursuing a reliable method for resolving conflicts, encouraging expert opinion from outside the drafting teams and enhancing the transparency of its work.
3. The restatement of the existing EU contract law and its limits
a) Sources and method
Since the ACQP are essentially laid out to present the status quo of the existing EU private law, their underlying idea is positivistic. Hence, the primary sources for the ACQP are the various rules in the different legal acts of the EU (in particular the Treaty on the Functioning of the European Union (TFEU), the directives and the regulations) as well as the case law of the European Court of Justice (ECJ). In the light of the fragmentary character of contract law regulation in the EU, the main goal of the ACQP is to provide a systematic account of EU law and—if possible—to derive some general rules and principles of contract law from the existing fragmentary legislation.
Apart from these primary sources of existing EU contract law, the commentaries of the ACQP often refer to codes of uniform law, in particular the CISG (sale of goods, international (uniform law)) and other widely recognized principles and international model codes, such as the PECL and the UNIDROIT Principles of International Commercial Contracts (PICC). At first glance, the reference, from the perspective of existing EU law, to such ‘non-positive’ sources seems to go beyond the original scope of the ACQP because, as opposed to other model codes, the ACQP only aim to present the current state of existing EU contract law. However, a private law that is based on the principle of freedom of contract is inherently dependent on certain fundamental principles of justice and rationality. From this perspective, the reference to ‘non-positive’ sources can be reconciled with the positivistic approach of the ACQP. In fact, in order to exemplify the principles on which the rules of the acquis are based, it is necessary to refer to other established bodies of rules and principles. This is particularly important in cases in which the ACQP attempt to overcome the limited scope of application of a certain acquis rule by deriving a general rule of private law from it.
In addition to the systematic analysis and generalization of the acquis rules, another important task of the ACQP was to scrutinize the existing rules in order to identify deficiencies and improve the quality of rule-making in the area of contract law. It was the aim of the ACQP to recognize and generalize only those rules of the acquis that are based on a convincing rationale and that have meaningful effects in accordance with the legal traditions of the member states and with established bodies of rules on contract law. This critical approach was encouraged by the European Commission (COM(2004), 651 final, 3 f).
It goes without saying that the three aforementioned tasks, namely the systematic analysis, the generalization and the critical evaluation of EU contract law, cannot be achieved by a purely deductive and objective method. In many stages of the drafting process, the authors of the ACQP had to resort to their own academic persuasions and assessments. These considerations are laid open in the commentaries and annotations on the individual rules.
According to the research programme as envisaged by the group, the final version of the ACQP will ultimately be made up of three parts resembling the structure of the legal acts of the EU. The same structure was adopted for the presentation of the DCFR. Inspired by the objectives laid out in the preface of an EU legal act, a first part will be a statement of general principles underlying the rules of the ACQP. This part will include fundamental ideas such as freedom of contract and the principle of pacta sunt servanda (agreements must be kept). Furthermore, fundamental conflicts between these principles and counter-principles are to be presented, particularly in the cases of party autonomy and of consumer protection. This first part attempts to make transparent the foundations of the ACQP and will serve as a guideline for interpretation. A second part will consist of general definitions of the most important legal terms used in the ACQP. The aim of the second part is to establish a coherent European private law terminology in order to reform the inconsistent use of legal terms across the different European legal acts.
While the general parts, part one and two, have not yet been published in a coherent form, part three, the essential element of the ACQP, which includes the model rules on contract law themselves, has been made accessible in the Acquis Group’s publications. So far, part three includes eight chapters, all related to the law of contract: Chapter 1: Introductory Provisions; Chapter 2: Pre-Contractual Duties; Chapter 3: Non-discrimination; Chapter 4: Formation; Chapter 5: Withdrawal; Chapter 6: Non-Negotiated Terms; Chapter 7: Performance of Obligations; Chapter 8: Remedies.
According to the so-called ‘Paris structure’, which was adopted in 2007, each chapter is divided into two parts. A first part covers ‘General Provisions’ that are regarded to be sufficiently persuasive to be applied as general rules of contract law without the limits of their specific scope of application in the acquis, while a (new) second part will present ‘Specific Provisions’ that only apply to certain (contracting) situations. These ‘Specific Provisions’ are divided into seven groups of situations used consistently in the ACQP and marked with capital letters: Part A: Contracts Negotiated Away from Business Premises; Part B: Contracts for the Delivery of Goods; Part C: Timeshare Contracts; Part D: Service Contracts; Part E: Package Travel Contracts; Part F: Consumer Credit Contracts; Part G: Payment Services.
c) Limitations of EU contract law and the approach of the ACQP
Due to its fragmentary character and to its focus on consumer contracts, many essential parts of contract law are not covered in the acquis. The contract law of the EU offers a very limited and lopsided basis for the drafting of general rules of contract law. Hence, at their core, the ACQP can only present a systematically structured, yet still highly fragmented body of rules. However, in order to present a more comprehensive and coherent set of rules, with regard to many areas of contract law in which the EU rules only offer a scarce basis, the drafters have resorted to using secondary sources. This recourse to secondary (ie ‘non-positive’) sources of rules is typically disclosed in the commentaries (eg the commentary on Art 8:402 ACQP on the measure of damages, referring to the CISG (sale of goods, international (uniform law), the Principles of European Contract Law (PECL) and to the UNIDROIT Principles of International Commercial Contracts (PICC)).
Conversely, rules that lack a sufficient basis in the acquis but were regarded as essential for the understanding and the overall coherence of the ACQP, are presented as so-called ‘grey rules’. These ‘grey rules’ are not independently drafted by the Acquis Group (eg on the basis of a comparative evaluation), but are adopted directly from the Common Frame of Reference (CFR) (eg Art 4:103 ACQP on offer and acceptance incorporating Art II.-4:201 DCFR). The ‘grey rules’ are not explained in the ACQP; only a brief reference to the DCFR and other secondary sources is found in the commentary section. Unfortunately, however, the principle to disclose the limited basis of the rules contained in the ACQP in the acquis by presenting them as ‘grey rules’ has not always been observed by the drafters. Article 8:402 ACQP (measure of damages), for example, is not identified as a ‘grey rule’ even though its broad definition of recoverable damages relies on an arguably inconclusive case law of the ECJ and has no solid basis in current EU legislation.
4. Critical evaluation
a) Systematic presentation of EU contract law as an impulse for a pan-European discussion
By presenting the considerable, yet inconsistent and incoherent legislation of the EU, in the form of a systematic model code, the ACQP fulfil a crucial task for the further development of EU contract law. They are the first model code that makes all current EU rules easily accessible in their legal context, and its commentaries provide important sources for a critical appraisal of the acquis as well as many valuable suggestions for its improvement. As such, the ACQP are likely to initiate and facilitate a much-needed academic and political discourse on the status quo and the development of EU contract law across all Member States. So far, due to their limited scope of application, the discussion has focused on the transposition of the EU’s numerous legislative instruments on contract law (in particular the consumer protection directives) and on their individual impact on the national legal systems.
b) The problem of generalization
The most intricate problem of the Acquis Group’s approach, however, is the difficulty of establishing convincing standards for generalizing certain isolated elements of the existing EU contract law. A large part of the contract acquis has a strong focus on consumer contracts and is, thus, based on a specific contractual framework. While the EU instruments were only designed for a limited scope of application, the rules presented by the Acquis Group have a tendency to disregard this limited scope without convincing rationales and to generalize many consumer protection instruments.
A particularly alarming example is the chapter on pre-contractual information obligations which is headed by a generally-phrased information clause in Art 2:201 ACQP. According to this rule ‘a party has the duty to give to the other party such information concerning the goods or services to be provided as the other party can reasonably expect, taking into account the standards of quality and performance which would be normal under the circumstances’. The drafters justify this general duty to disclose all relevant information with reference to the Directive on consumer sales contracts (Dir 1999/44; sale of consumer goods) and, in particular, its Art 2 on the conformity of the goods with the contract. They argue that, as the definition of conformity used in Art 2 of the directive is dependent on the seller’s statements about the quality of the goods, a general duty to disclose information can be derived from the acquis. Disregarding the limited scope of application of the Consumer Sales Directive, Art 2:201 ACQP is stated as a general rule (ie applicable also to business-to-business (b2b) and consumer-to-consumer (c2c) contracts) on the grounds that a definition of the quality of goods similar to Art 2 of the Consumer Sales Directive can also be found in Art 35 CISG (see the commentary on Art 2:201, nos 4 ff). Moreover, in the case of business-to-consumer (b2c) contracts, additional, but still broadly phrased information obligations, apply according to Arts 2:202(1), 2:203 ACQP. The relationship between these rules and the general duty according to Art 2:201 ACQP is not clearly defined in the ACQP. And, as far as the remedies are concerned, according to Art 2:208 ACQP, a claim for damages is available, in addition to an extension of the time limit for withdrawal from the contract and an ipso iure adjustment of the contract. This claim for damages is based on the principle of effectiveness (effet utile; see the Commentary on Art 2:208, nos 2 f).
Such a sweeping generalization based on vague and inconclusive sources produces rules that go far beyond the actual content of the acquis and that are often inconsistent with general principles of the contract law of most Member States. The remedies for breach of information obligations, as presented in the ACQP, level the differences between the various concepts applicable to the parties’ communication conduct in all private law systems. In particular, they disregard the fundamental difference between an agreed term of the contract and the liability at the pre-contractual stage (eg in cases of misrepresentation). Also, the specific contracting situation in ‘b2c’ contracts, which is at the core of the ACQP’s pre-contractual information obligations, is typically inadequate in a ‘b2b’ or ‘c2c’ context. Furthermore, the broad and vague phrasing of information obligations in the ACQP seems to imply that a full disclosure of relevant information is the general rule, while the customer’s personal responsibility in a free contractual bargain appears to be the exception. This tendency is in striking contrast with the limited scope of application of the consumer acquis, with the contract law of the Member States, and with fundamental principles of a liberal private law system. As a result, the information obligations of the ACQP leave wide discretion for judicial intervention in contractual agreements, possibly encouraging parties opportunistically to challenge inconvenient contract terms.
c) Lack of a genuinely critical approach
A further problem of the ACQP is the lack of a fundamentally critical evaluation of the acquis. Such an analysis was intended to be an important part of the group’s research programme (see 3. a) above) but has largely been neglected, possibly due to the ambitious time frame set for the presentation of the ACQP and the DCFR as well as the desire to present an extensive body of rules. Contrary to the aim of the Commission’s action plan, the ACQP adopt a rather notarial approach to law-making and seem to be primarily concerned with an exhaustive compilation and generalization of the European rules.
To stay with the example given above, the information obligations found in the various consumer protection directives (eg information obligations (employment contracts); information obligations (consumer contracts); information obligations (insurance contracts)), have not been analysed to determine whether they perform a useful function in contract law. Furthermore, the remedies available for breach of such information obligations have not been subjected to critical scrutiny. To give another example of this lack of a critical evaluation, the ACQP contain no reference to the debate on the legitimacy and the effectiveness of the various rights to withdraw from a (consumer) contract. Finally, the EU’s non-discrimination rules have been adopted and extended even though the effectiveness of such rules in a private law context is highly questionable. Such rules can easily be evaded by dishonest parties, while the large number of rules to be observed increases the risk of litigation even for the honest ones.
On an overall evaluation of the ACQP, there are very few corrections that attempt to improve the quality of European law. The rule in Art 2:208(1) 2 ACQP may serve as an example. Contrary to the tendency expressed in the ECJ’s ruling in the Heininger case (ECJ Case C-481/99 – Heininger  ECR I-9945), the exercise of a right to withdraw from a contract has, in the ACQP, been limited to a period of one year from the time of the conclusion of the contract even if the consumer has not been informed about this right. However, this example also illustrates that the amount of critical evaluation practised in the ACQP is limited to minor changes directed at improving the technical coherence of the existing acquis.
Nonetheless, a critical evaluation of the fundamental principles and instruments of the EU’s contract law remains a pressing concern. More than 25 years have passed since the first directive concerning contract law, the Doorstep selling Directive (Dir 85/577; doorstep selling), came into force. European consumer protection law has introduced many novel regulatory instruments which were alien to the legal traditions of the Member States. Most of the legal instruments were drafted and passed in the notorious obscurity of the EU’s law-making process and have not yet been subject to a critical academic and political debate. Also, due to their—so far—limited scope of application, the academic debate appears to have been more concerned with the problems of transposition, rather than with a fundamental criticism of the principles on which the European rules are based. The body of rules presented by the Acquis Group is representative of this lack of fundamental criticism. As a result, even after the drafting of the ACQP, a process of critical evaluation, including an academic and political debate as to the principles underlying the EU’s legislation on private law, is still outstanding. Such a process will be necessary in order to improve the quality and the acceptance of EU law and perhaps also to establish the potential limits of EU regulation in the field of private law.
The ACQP are closely linked to the Draft Common Frame of Reference (DCFR) initiated by the Commission in order to prepare a fundamental reform of the contract acquis. The essential idea behind the plan to draft a CFR was to place the existing EU contract law in a systematic context with other fields of contract law and private law in general. With regard to the CFR, the ACQP were used as the (primary) source for all the rules that are directly related to existing rules of the acquis. Hence, the acquis-related rules of the CFR are subject to the same shortcomings as the ACQP (see 4. above).
After the publication of the first drafts for the ACQP and before the final version of the CFR had become available, the Commission presented a significant proposal for the reform of the acquis, the draft for a new directive on consumer rights (see COM(2008) 614 final). This draft intends to replace the Doorstep Selling Directive, the Distance Marketing Directive (Dir 97/7), the Consumer Sales Directive as well as the Unfair Terms in Consumer Contracts Directive (Dir 93/3). It is based on the principle of full harmonization as opposed to the minimum harmonization approach pursued by most of the existing legislative instruments of the EU (see Art 4 of the draft). While the ACQP appear to have influenced some of the rules of the draft (see Arts 8 ff of the draft on rights to withdraw), for the most part, the draft retains the limits in scope of application of the existing directives. It only applies to consumer contracts and refrains from stating general rules of contract law. Furthermore, its general definition of a pre-contractual duty is much more limited than the definitions presented in Art 2:201 and 2:202 ACQP. And finally, as far as the remedies for a breach of this duty are concerned, a considerable amount of discretion is left to the Member States which are only obliged to provide for an effective remedy within their respective private law systems (cf Art 6(2) and Art 42 of the draft as opposed to the sanctions prescribed by Art 2:208 ACQP).
In 2010, an Expert Group was set up to assist the Commission in the preparation of a proposal for the CFR (Commission Decision 2010/233/ EU). In May 2011 the Expert Group presented a revised proposal for a future instrument in European Contract Law <http://ec.europa.eu/justice/contract/files/feasibility-study_en.pdf>. Even though the Expert Group was supposed to address the shortcomings of the DCFR, its draft has adopted most of the acquis-based regulations from the DCFR and the ACQP respectively. Thus, the reservations against the ACQP have still not been convincingly addressed in the drafting process. The most useful feature of the ACQP may be the fact that they facilitate a critical scrutiny of the acquis by demonstrating its shortcomings in a remarkably transparent and systematic way. Yet, due to their tendency to generalize many rules of the acquis, they also aggravate many of these shortcomings. Unfortunately, the fundamental debate as to the current state of the private law acquis, which is crucial for the future development of European private law, was not tackled by the ACQP and is still outstanding. Therefore, in dealing with the ACQP, one has to bear in mind that they are neither a precise account of the existing EU law in force, because many rules are generalized without regard to the limited scope of application of the EU’s legal instruments, nor do they present a revised version of the acquis that can claim substantial political or academic support. Rather, they should be treated as an academic draft, presented by one particular group of scholars that collects, complements, generalizes and presents the acquis in the form of a systematically structured model code. Taking this into account, the ACQP are a very valuable contribution for the development of EU contract law, particularly if they serve as catalyst for a larger critical debate across the Member States.
Dirk Staudenmayer, ‘The Commission Action Plan on European Contract Law’  ERPL 113; Rainer Schulze, ‘European Private Law and Existing EC Law’  ERPL 3; Jürgen Basedow, ‘Freedom of Contract in the European Union’  ERPL 901; Horst Eidenmüller, Florian Faust, Hans Christoph Grigoleit, Nils Jansen, Gerhard Wagner, Reinhard Zimmermann, ‘The Common Frame of Reference for European Private Law—Policy Choices and Codification Problems’ (2008) 28 Oxford J Legal Stud 659; Nils Jansen and Reinhard Zimmermann, ‘Restating the Acquis Communautaire? A Critical Examination of the “Principles of the Existing EC Contract Law”’ (2008) 71 Modern Law Review 505; Hans Schulte-Nölke, ‘From the Acquis Communautaire to the Common Frame of Reference—the Contribution of the Acquis Group to the DCFR’  Juridica International 27; Hans Schulte-Nölke, ‘Acquis Communautaire and Structures of the CFR’ in Rainer Schulze (ed), Common Frame of Reference and Existing EC Contract Law (2008) 47; Reiner Schulze and Thomas Wilhelmsson, ‘From the Draft Common Frame of Reference towards European Contract Law Rules’  ERCL 154; Horst Eidenmüller, ‘Party Autonomy, Distributive Justice and the Conclusion of Contracts in the DCFR’  ERCL 109; Stefano Troiano, ‘To What Extent Can the Notion of “Reasonableness” Help Harmonize European Contract Law? Problems and Prospects from a Civil Law Perspective’  ERPL 749, 785 ff; Horst Eidenmüller, Florian Faust, Hans Christoph Grigoleit, Nils Jansen, Gerhard Wagner, Reinhard Zimmermann, ‘Towards a revision of the Consumer-acquis’ 48 (2011) CMLR 1077; Horst Eidenmüller, Florian Faust, Hans Christoph Grigoleit, Nils Jansen, Gerhard Wagner, Reinhard Zimmermann, Revision des Verbraucher-acquis (2011).