European Civil Code
1. The ideal of a European Civil Code and its emergence
The idea of codifying European private law is a comparatively recent one and is part of the history of the development of European private law. It can arguably be traced back to Ole Lando’s call in 1978 to create a European Uniform Commercial Code. Picked up by some scholars (eg Jürgen Basedow and Ernst A. Kramer) and pursued by Ole Lando and the Commission founded by him (Principles of European Contract Law) this idea was, however, initially pushed aside, in public discourse by the question of the influence of European Union law on the various national private laws (‘Europeanization of private law’) and the search for foundations of a pan-European private law under a comparative and historical perspective.
The codification of European private law started to attract more attention amongst legal scholars following the publication of the first part of the Principles of European Contract Law in 1995 as it became apparent that such codification was, at least for parts of European private law, actually workable in practice. The idea of a European Civil Code subsequently became a well-entrenched subject of discourse in European private law legal scholarship. The book Towards a European Civil Code, edited by Arthur S Hartkamp and others, was first published in the Netherlands in 1994. At a conference held in Scheveningen near The Hague in 1997, on the invitation of the Dutch government and under the then Dutch Presidency of the Council of the European Union, the realization of a European Civil Code was broadly supported by the participants, the attendees including many members of the Lando-Commission and numerous other leading comparative law scholars. In 1999 the Study Group on a European Civil Code was established, and the idea also inspired all other unification projects on European private law (Code Européen des Contrats (Avant-projet); Acquis Principles; Principles of European Tort Law; Principles of European Insurance Contract Law).
2. The debate on feasibility
At the early stages of the debate the feasibility of a European Civil Code was often doubted. One of the arguments concerned the question whether a pan-European Code was politically possible. This is not a matter for legal scholarship to decide. Additionally, many concerns were raised about the project’s practical feasibility, the main argument being the legal and cultural differences—especially between the continental and the common law countries—which were allegedly too great. The presentation of the ‘academic’ draft Common Frame of Reference and the draft presented by the Gandolfi group (Code Européen des Contrats (Avant-projet)) have arguably clarified the situation to the extent that they demonstrated the ability of European private law scholarship to develop such texts with a certain degree of systematic and terminological coherence.
The second objection, which was often linked to the codification dispute between Friedrich Carl von Savigny and Anton Friedrich Justus Thibaut, carried more weight, namely that before being able to codify a common and generally accepted European Civil Code, an ‘organically progressive’ supranational scholarship based on the model of the historical school would have to be created, which would have to overcome the geographical as well as legal boundaries (this view was propounded, above all, by Reinhard Zimmermann). However, the question of the chronological sequence of both ideals cannot be easily answered because the legislative organs of the European Union do not seem to be willing—and consequently the European Court of Justice and legal practitioners are not able—to await the academic development. Furthermore, the pan-European debate on the Draft Common Frame of Reference shows that such drafts—precisely because they are being seriously considered as a possible basis for a future codification—play an important role in acting as a catalyst for further discussions. The presentation of the drafts alone has already significantly Europeanized private law scholarship and the subsequent debate.
The most important constraint on the feasibility of a European Civil Code, however, is the lack, very largely of a common European legal method. The development of such a method for the interpretation of norms, precedent-based arguments and the like is still only in its early stages. The individual national standards diverge remarkably on this point. Union law, with its strong emphasis on teleological arguments aimed at the establishment of the European internal market, is of little assistance in supporting the creation of a common European methodology for private law. Legal norms on methodology such as Art 7(2) CISG, also included in Art I.-1:102 DCFR, have thus far had a limited impact. From the debate on the Draft Common Frame of Reference it appears that neither a different approach to the literal interpretation of norms nor different perceptions as regards the value of historical arguments constitute the core of the problem. The issues at the heart of the emerging controversy of interpretation are rather differences in the perception of the function of a code and, consequently, the value of the system and the arguments based upon it, especially the argumentum a contrario. Without at least rudimentary consent on these issues the long-term benefits of a unified civil code cannot be guaranteed.
3. The debate on political intentions
The birth of the ideal of the civil code gave rise to the accompanying political debate questioning whether a European Civil Code is (actually) desirable. Opinions, right from the outset, differed remarkably. Some commentators invoked the ideas already espoused by Savigny. There was a dispute on the course of development towards codification and the necessary preparation period. In fact, perhaps even more importantly, perceptions on the functions of a private law codification and the expectations as to its regulatory structure diverged. The antagonism between an approach which aims at the creation of a complete system, with its own normative authority, and the concept of a compilation entailing a notorious weakness of systematic arguments, can be perceived in many of the drafts today and shapes numerous debates on the proper comprehension of individual rules in these drafts. The absence of a methodological consensus leads to political concerns.
Moreover, the debate soon referred to Europe’s legal and cultural diversity (legal culture), which was looked upon as an important commodity and was defended, if at times quite polemically, especially by Pierre Legrand. It was contended that the preservation of individual legal traditions was of higher importance than the advantages of a unified code. Furthermore, the considerable differences between common law and civil law were stressed, although it is fair to say that the works of Reinhard Zimmermann have shown that these differences can be overcome at least on the level of substantive rules.
The supporters of a unified civil code partly invoked legal-cultural arguments as well. It was argued that, disregarding the differences in detail, there was a common European legal culture, which a civil code would solidify and enhance. This instrumentalization became even more apparent when it was regarded as complying with the single market or could even be attributed to the principle of subsidiarity. Thus, even now, the core argument on a political level is that a unification of private law can overcome obstacles to the single market.
Supporters of a European Civil Code additionally point out that residents of smaller Member States are frequently unable to act under their own national law, because contracts they conclude are usually international and their domestic law is usually not applicable as the result of a choice of law clause. Especially in these smaller jurisdictions one can find a permanent and legitimate interest in a formalized harmonization of private law. This interest has led to the idea of making the existing drafts of the harmonization projects binding under at least one national law for cross-border legal relations, which could then be chosen as binding law by the parties. To the extent that it is not to be regarded as opposing the mechanism of enhanced co-operation under Arts 49–51 TFEU/43–45 EC, one could also imagine a ‘joint venture’ of several smaller Member States with the ultimate goal of enhancing the chances of success of such an optional instrument.
4. Political developments
The political impetus lying behind the idea of a European Civil Code is revealed by the enormous amount of documents issued by the various EU institutions on the topic. They all originate from the early resolutions of the European Parliament of 1989 and 1994, calling for the creation of a European Civil Code.
The aforementioned conference held by the Dutch Presidency of the European Council—apart from an (undocumented) speech by the Dutch Minister of Justice—did not result in political determinations by the European Council (Council and the European Council). Likewise, the famous conclusions in point 39 of the European Council held in Tampere in 1999 do not refer to a European Civil Code: ‘As regards substantive law an overall study is requested on the need to approximate Member States’ legislation in civil matters in order to eliminate obstacles to the good functioning of civil proceedings’.
The European Commission only briefly mentioned the European Civil Code in its Communication from 2001 and did not formally adopt the idea. On the other hand, the 2003 action plan articulated this idea more explicitly, if only reporting the reactions to the 2001 communication. It is readily apparent that the Commission sought to interpret positively the numerous supportive statements that were made at that time. Evidently, the European Commission deliberately kept the codification-option open, in case the political support for such a project was to emerge. However, in its communication from 2004 the Commission clarified that it did not intend to propose the creation of a European Civil Code.
Thus, at the Union level, the European Civil Code project is—at least temporarily—off the agenda. In 2005, the European Council welcomed the fact that the Commission had not proposed the creation of a codification. The project was not even mentioned in the Commission’s first progress report of the same year. The parliament’s first resolution of 2006, while not expressly abandoning the idea of a European Civil Code, indicated a change of direction, as all subsequent resolutions focused on the work concerning the Common Frame of Reference instead. The political debate shifted from the idea of a European Civil Code to the Common Frame of Reference.
This, however, does not mean that the idea has been forgotten by the EU institutions, which can be seen in the subsequent declarations of the Council (April 2008 report) and the Commission (2007 report): Apparently both felt obliged to emphasize that the Common Frame of Reference did not form the basis of a European Civil Code (Council), and that the work on the Common Frame of Reference was not meant to lead to the creation of such a code (Commission). The European Parliament has never (officially) dropped the project.
5. The question of legislative competence
The question of the legislative competence of the European Union to pass a civil code was raised early on in the process (legislative competence of the EU). It has, however, not significantly affected the academic debate and the development of the drafts presented. In fact, the question cannot be properly answered as long as the actual content, the scope of application and the intended type of legal instrument have not been fixed. At any rate, it may be regarded as undisputed that comments on the existence or non-existence of a legislative competence for private law in general are by far too undifferentiated.
The Union’s competence in this area is controversial. Most scholars argue that it is impossible to find the necessary competence in Art 114 TFEU/95 EC because the mere difference between national laws cannot be perceived as hampering the single market. There is furthermore a large consensus that such competence cannot be based on Arts 67–71 TFEU/61 EC. Likewise, the use of Art 352 TFEU/308 EC as a specific legal base is doubted; also it appears to be unrealistic because it requires unanimity. But even if it were, correctly, assumed that such a competence exists, one should not try to base a project of this scale on the existing primary legislation, given that the accompanying legal risks are too serious. The Treaty of Lisbon has not solved the problem of competence in spite of a revised version of Art 65 EC in Art 81 TFEU.
6. Impact of the ideal on European legal scholarship
The actual impact of the ideal of a European Civil Code has been and is greater than suggested by the discussions of whether or not such a project can actually be put into practice and would be desirable as well as on the questions of legislative competence and underlying methodology. It has actually unleashed a domino effect and initiated a large-scale reorganization of European legal scholarship. The idealism of European private law scholars has resulted in the publication of numerous texts on nearly every area of private law and parts of commercial law during the last two-and-a-half decades which, apart from the law of succession and the law of immovable property, hardly leave anything undiscussed. Company and employment law will no doubt follow suit. Whether it is feasible to apply the methodology and the types of instruments developed in private law to public law is presently under discussion.
The fact that of all these projects it is the Draft Common Frame of Reference that is at the centre of academic attention is not only due to its remarkable ambition but also to its closeness to the political actors, a closeness that had hardly been imaginable thus far. The supposedly good chance of putting a legal instrument into effect covering core elements of private law has initiated a pan-European discourse on private law topics of a new dimension, despite the renunciation of the binding effect of such instrument. While the field was long in the hands of specialists of comparative law and Union private law, increasingly academics and practitioners with a national rather than European law background have joined the debate. At the same time, the debate on questions of general private law that used to be confined to domestic circles has begun to spread across geographic and linguistic borders.
The emerging European private law scholarship is now struggling for a common legal methodology. The actual value of the ideal of a European Civil Code becomes apparent at the rebirth of this struggle: it is the motivating force for a legal scholarship shaped by ideals. Despite the similarity with the German codification dispute of the 19th century the current developments are different in one important respect. The discourse of today focuses on texts resembling legal rules and intended to constitute uniform law, and it draws from them essential elements of its internal order. This order is not only the first benefit of the ideal of a European Civil Code, the draft rules also serve to coordinate the future discussion.
Ole Lando, ‘Unfair Contract Clauses and a European Uniform Commercial Code’ in Mauro Cappeletti (ed), New Perspectives for a Common Law of Europe (1978) 267; Jürgen Basedow, ‘Grundfragen der Vertragsrechtsreform―Niederländische Erfahrungen’ (1980) 79 Zeitschrift für vergleichende Rechtswissenschaft 134; Ernst A Kramer, ‘Europäische Privatrechtsvereinheitlichung (Institutionen, Methoden, Perspektiven)’  Juristische Blätter 477; Reinhard Zimmermann, ‘Savigny’s Legacy: Legal History, Comparative Law, and the Emergence of a European Science’  LQR 576; Pierre Legrand, ‘Against a European Civil Code’ (1997) 60 Modern Law Review 44; Ole Lando, ‘Why Codify European Contract Law?’  ERPL 525; Martin Schmidt-Kessel, ‘Auf dem Weg zu einem Europäischen Vertragsrecht – Zur Einordnung des Aktionsplans der Kommission’  Recht der internationalen Wirtschaft 481; Arthur S Hartkamp and others (eds), Towards a European Civil Code (4th edn, 2004); Lars-Peter Brandt, Die Chancen einer dauerhaften Rechtsvereinheitlichung durch ein europäisches Zivilgesetzbuch (2009); Hans Schulte-Nölke, ‘Ziele und Arbeitsweisen von Study Group und Acquis Group bei der Vorbereitung des DCFR’ in Martin Schmidt-Kessel (ed), Der gemeinsame Referenzrahmen―Entstehung, Inhalte, Anwendung (2009) 9; Reinhard Zimmermann, ‘The Present State of European Private Law‘  Am J Comp L 479.