Study Group on a European Civil Code

From Max-EuP 2012

by Martin Schmidt-Kessel

1. Nature and aims of the Study Group

The Study Group on a European Civil Code is a network of independent European legal academics specializing in private law from all of the jurisdictions of the European Union (apart from Cyprus) and also from Norway and Switzerland. The members of the Group are particularly active in comparative law. The Group is of a private nature and therefore non-governmental. It is primarily financed by agencies which support scientific research within the Member States; the Deutsche Forschungsgemeinschaft is the biggest contributor. Other sponsors include the Nederlandse Organisatie voor Wetenschappelijk Onderzoek, the Alexander S Onassis Public Benefit Foundation, the Fundação Calouste Gulbenkian, the Italian National Council of Lawyers, the Fonds voor Wetenschappelijk Onderzoek—Vlaanderen as well as the Fonds zur Förderung der Wissenschaftlichen Forschung (Austria). The European Commission supports the Group within the 6th EU Research Framework Programme, as far as it takes part in the Joint Network on European Private Law, a ‘network of excellence’ under this framework programme.

The Study Group’s official aim—based on the Principles of European Contract Law (PECL)—is to draft Principles of European Law on the law of obligations and core areas of the law of movable property. The Group thereby constitutes the organizational framework for one of the largest projects on comparative law undertaken at the end of the 20th and the beginning of the 21st centuries. This is true, as far as the substantive scope, the number of persons involved, and the attention paid to the project by academics as well as practitioners in Europe are concerned.

In spite of its name (Study Group on a ‘European Civil Code’), the creation of such a code is not its official aim. The opinions as to whether it is worth striving for a European Civil Code differ considerably within the Group and range from the early call for a European Uniform Commercial Code (Ole Lando, 1978) to a rejection of a binding codification. Due to its organization as an academic research project, the question whether or not a binding code is to be enacted is not crucial for the project. The Group’s name is indicative of the intention to capture for the project the incentive inherent in the ideal of a European Civil Code.

On the basis of comparative law the Group aims at developing principles—formulated in the form of rules—for the law of obligations and the law of property as far as they are relevant to the functioning of the internal market. At the same time, this approach attempts to develop a common legal language and terminology. The creation of common principles highlights technical differences existing between the Member States’ legal systems but also diverging views on policy issues. All these aspects represent elements of a European private law and legal culture (legal scholarship; legal culture; European private law).

It was only with the subsequent development towards a Common Frame of Reference (CFR) that the abstract goals of the Study Group have found a much more specific focus in the drafts of texts only just stopping short of a legislative character. This reflects the idea that the academic text prepared by the Study Group can be used as a toolbox (first expressed by Hugh Beale) or as a reference resource (Stephen Swann).

2. Development of the Study Group

The establishment of the Study Group can be traced back to a conference entitled ‘Towards a European Civil Code’ and organized by the Dutch EU Council Presidency in Scheveningen near The Hague in 1997. The conference aimed to respond to calls by the European Parliament and its resolutions of 1989 and 1994 (European Civil Code). In 1998 the Group was founded on the initiative of its later chairman, Christian von Bar, and it started work on 1 July 1999.

The Study Group considers itself as the successor of the Commission on European Contract Law—frequently also called the Lando-Commission after its founder—whose inception dates from 1982 and which was responsible for compiling the Principles of European Contract Law (PECL). Members of the Lando-Commission played leading roles within the Study Group (Ole Lando, Christian von Bar, Hugh Beale, Carlo Castronovo, Eric Clive, Ulrich Drobnig, Konstantinos Kerameus, Hector MacQueen and Matthias Storme).

In terms of content, the Study Group again initially followed the Lando-Commission by basing its research upon the Principles of European Contract Law and developing rules on individual types of nominate contracts such as sale, service contracts, distribution contracts (sales (forms of distribution)) and personal securities (suretyship (modern law); guarantee, independent), later also lease of movables (lease), credit agreements and donation. The Group also dealt with obligations arising ex lege: ‘benevolent intervention in another’s affairs’ (negotiorum gestio), unjustified enrichment and non-contractual liability (law of torts/delict, general and lex Aquilia; strict liability); and it covered transfer of title (movable goods), security rights in movable assets and trusts. Revision of the Principles of European Contract Law, particularly involving the adaptation to the newly drafted principles of the Study Group, and systematic integration of all the individual sets of rules were to complete the project. The inclusion also of real property law, family law (family law (international)), the law of succession, company law, the law relating to incorporeal property and labour law (employment contracts, individual (PIL)) has never been envisaged.

Since 1999 the different working platforms of the Study Group have held regular meetings. The conference of the Coordinating Committee in Athens from 11–14 June 2008 heralded the official completion of the group’s work; but some work, especially on the parts not yet published, still has to be done.

3. Working method and organizational structure

In its organizational structure and its working method the Study Group was greatly influenced by the Lando-Commission. Both groups could only achieve their aims by comparative legal research. At the same time, a working method of expressing results of that research in the form of principles designed as rules, required the creation of guidelines for taking legal policy decisions.

The comparative legal research fulfilled several functions which can, if only theoretically, be differentiated into three distinct categories (comparative law). First, the decisive factual issues underpinning the relevant field of law had to be worked out. Then, the solutions provided by the Member States’ legal systems had to be taken stock of. After that, the diverging solutions had to be reduced to typical models which acted as a basis for the necessary policy decisions. In practice, all three functions overlapped to a large extent. This method corresponds to the approach to comparative law developed by Ernst Rabel, downgrading the importance of legal technique and doctrinal detail.

The Study Group’s aim of formulating rules implementing the legal policy decisions additionally required the reconstruction of these decisions by doctrinal and technical tools. These were not, however, readily available given that the existing national approaches could not be resorted to. Rather, a mechanism for developing fundamental decisions on these issues, as distinct from legal policy, was required. However, this task was never approached in any systematic way. The emerging debate on the argumentum e contrario is rooted in this dilemma.

The real aim of the Group was, therefore, to reach agreement on the ‘best’ solution. To ensure the Group’s ability to work effectively, majority decisions were necessary if such agreement could not be reached. The procedural policy, however, was to avoid taking majority decisions as far as possible because such decisions endangered the work’s consistency and coherence.

This working method was reflected in an organizational structure consisting essentially of three levels: Working Teams, Advisory Councils and the Coordinating Committee. In addition, there were several task forces dealing with thorny issues such as electronic commerce, or the terms ‘consumer’ and ‘business’. Since 2004 a further group has been set up to bring together the different parts of the overall draft. Meetings of the Coordinating Committee were prepared by the chairman and a steering committee consisting of seven persons.

The comparative research was the task of the Working Teams, of which there was one for every area of the law to be covered by the Study Group. Each of them was led by a law professor and consisted of talented young researchers from different jurisdictions. The Working Teams developed proposals for the problems which required resolutions, laid down at first in working papers and then in preliminary drafts. When the other levels had taken their decisions, the Working Teams had to implement them and to draw up the comments and notes accompanying the draft rules.

An Advisory Council composed of five to eight law professors from different jurisdictions was assigned to each Working Team. It scrutinized the working papers and especially the drafts in regular meetings lasting several days, usually at the place of work of the Working Teams. This often resulted in considerable alterations to the drafts and their adaption to the overall structure. The international composition of the Advisory Councils ensured that the comparative experiences were duly taken into account on the level of the Working Groups. While questions about the internal system of the respective parts were mainly answered on the level of the Advisory Councils, legal policy issues were merely identified, and the relevant decisions were left to the Coordinating Committee.

The Coordinating Committee, consisting of approximately 50 law professors from all jurisdictions of the European Union, was in charge of taking decisions on legal policy. Moreover, it determined the crucial systematic and terminological issues concerning the overall project. Furthermore, the results of the comparative research were again examined on this level. The initially three-day, then four-day meetings of the Coordinating Committee took place in different European cities twice a year. These 14 meetings altogether represent the cornerstones of the Study Group’s work. The names of the persons involved at all levels can be found in the Outline Edition of the Draft Common Frame of Reference (DCFR).

4. Autonomous working results

The results of the Study Group’s work can be described as legal language organized into rules. The presentation of these results conforms to the approach adopted by the Principles of European Contract Law (PECL). At its core are the black letter rules, framed in statutory language. Comments elaborate on the rules and discuss alternative solutions regarding legal policy as well as terminology and system. The notes contain the results of the preparatory comparative research; their content and structure depend on the black letter rules and, therefore, have to be reviewed after the completion of the work on the black letter rules.

The result of the Study Group’s work has been or will be published in the volumes of the series Principles of European Law (PEL). The volumes on sale, lease of movables, services, contracts for distribution, personal securities, negotiorum gestio, extra contractual liability, unjustified enrichment, acquisition and loss of ownership of goods and proprietary securities have already come out. Publication of the volumes on mandate, donation and trusts is planned for 2012 and 2013.

5. Preparation of the Common Frame of Reference

Since 2005 the Study Group’s autonomous research on the Principles of European Law has been gradually superseded by the preparations for an academic draft of the Common Frame of Reference (CFR). The Joint Network on European Private Law founded for preparing this draft, with Hans Schulte-Nölke as coordinator, was supported as a ‘network of excellence’ within the 6th Research Framework Programme by the Commission. It contained three drafting teams, ie the Study Group on a European Civil Code, the Acquis Group (Acquis Principles) and the Insurance Law Group (Principles of European Insurance Contract Law (PEICL)) as well as a whole series of so-called evaluative and supportive groups. The aim of these groups was the formulation of Common Principles of European Contract Law (CoPECL), which constitute the objective supported by the 6th Research Framework Programme.

As a result of the integration of the Study Group’s work into the political process of preparation of the Common Frame of Reference, the Study Group on a European Civil Code also had to take account of the concerns of lobby groups. Part of the process therefore consisted of discussions of drafts within the so-called CFR-net, a network of lobbyists organized by the European Commission. Several alterations to the drafts were made as a result of these discussions.

Within the framework of the Joint Network on European Private Law, the Study Group and Acquis Group developed the Draft Common Frame of Reference. Concerning its basic structure, it is based on decisions of the Coordinating Committee of the Study Group from 2004. Books I to III contain the Principles of European Contract Law, considerably revised and supplemented by the result of the work of the Acquis Group that had, in the meantime, been published. The books IV to X represent the result of the work of the Study Group and its teams.

To elaborate the Draft Common Frame of Reference both groups jointly established what was dubbed a joint ‘Compilation and Redaction Team’ (CRT) under the chairmanship of Eric Clive. This team was responsible for revising the Principles of European Contract Law as well as merging the work of both groups and ensuring overall systematic and terminological consistency. The main work was done by Eric Clive, to whom substantial parts of the terminological achievements can also be traced back. The core of the black letter rules of the Draft Common Frame of Reference was published for the first time in the spring of 2008 as the Interim Outline Edition. Up until the summer of 2008 the CRT’s results were discussed by the Coordinating Committee of the Study Group. The last meeting of the CRT took place in Ghent in September 2008. The final version of the black letter rules of the Draft Common Frame of Reference was issued as the Outline Edition in March 2009. The six-volume Full and Final Edition of the Draft Common Frame of Reference with comments and a large part of the comparative notes dealing with national law has followed in the autumn of 2009.

Literature

Christian von Bar, ‘Die Study Group on a European Civil Code’ in Festschrift Dieter Henrich (2000) 1; Christian von Bar, ‘Le groupe d’études sur un Code Civil Européen’ [2001] Revue internationale de droit comparé 127; Wolfgang Wurmnest, ‘Common Core, Grundregeln, Kodifikationsentwürfe, Acquis-Grundsätze—Ansätze internationaler Wissenschaftlergruppen zur Privatrechtsvereinheitlichung in Europa’ (2003) 11 ZEuP 714; Kristina Riedl, Vereinheitlichung des Privatrechts in Europa: Wissenschaftliche Initiativen im Europäisierungsprozeß (2004); Mary-Rose McGuire, ‘Ziel und Methode der Study Group on a European Civil Code’ [2006] Zeitschrift für Europarecht, internationales Privatrecht und Rechtsvergleichung 163; 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.

Retrieved from Study Group on a European Civil Code – Max-EuP 2012 on 19 May 2022.

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