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European contract law — towards a european frame of reference

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References

  1. The “Europeanisation of Private International Law” was discussed at an ERA conference in Trier as early as 1993 (cf. Lagarde/v. Hoffmann, L’européanisation du droit international privé, vol. 8 of the ERA series of publications). A first ERA conference on “New European Contract Law and Consumer Protection” was organised in Brussels in 1997 (cf. Heusel, Neues europäisches Vertragsrecht und Verbraucherschutz, vol. 25 of the ERA series of publications).

  2. “Codification” in the classical sense of drafting a European Civil Code, as called for by the European Parliament in its 1989 and 1994 resolutions (resolution of 26.5.1989, OJ C158, 28.6.1989, and resolution of 6.5.1994, OJ C205, 25.7.1994), or rather in the sense of a consolidation of the existing European consumer law, cf. Drobnig in Heusel (ed.), Neues europäisches Vertragsrecht und Verbraucherschutz, vol. 25 of the ERA series of publications, p. 202, or van Gerven’s “bottom-up” approach as presented in the “Ius commune casebooks for the common law of Europe” series. The European Parliament’s position is again reflected in the call for a “common civil law” in the report by K.-H. Lehne adopted by the Legal Committee on 23.2.2006 (doc. A6-55/2006-Final, 2.3.2006).

  3. The Joint Network on European Private Law was created under the Sixth Research Framework Programme. Its members are: the Study Group on a European Civil Code, Osnabrück; the Acquis Group, Bielefeld/Turin; the Insurance Group, Innsbruck; the Association Henri Capitant, Paris; the Common Core Group, Turin/Trieste; the Economic Impact Group, Tilburg; the Database Group (Institut Charles Dumoulin), Paris; and ERA. Cf. also Fuchs et al., A Common Frame of Reference — How should it be filled?, in: ERA Forum 2/2003, 99.

  4. COM(2003) 68 final, 12.2.2003.

  5. “European contract law and the revision of the acquis: the way forward”, COM(2004) 651 final, 11.10.2004.

  6. Council doc. 16054/04, 13.12.2004, p.32 (in section 3.4.4 entitled “Ensuring coherence and upgrading the quality of EU legislation”).

  7. Council and Commission Action Plan implementing the Hague Programme, Council doc. 9778/2/05 rev. 2, JAI 207, 10.6.2005, p. 26 (in section 4.3 Judicial cooperation in civil matters / Ensuring consistency, action (x) “Adoption of a common frame of reference (CFR) in the field of European contract law (2009)”).

  8. For details of the establishment of the CFR-net and the organisation of its work, see the Commission’s “First Annual Progress Report on European Contract Law and the Acquis Review”, COM(2005) 456 final of 23.9.2005, chapter 2.2 “CFR-net”. The experts’ comments and workshop reports are posted on a specific website which is not publicly accessible. The way in which this feedback between research group and stakeholder experts has been organised by the Commission has given rise to some criticism. One of the criticisms concerned the very short deadline the experts were given to comment on the researchers’ drafts — one month — whereas the researchers have six months to react on the comments. The Commission has now extended this time to two months (ibid. 2.6.2 “Procedural issues”). Besides the CFR-net, the Commission has set up a network of some 35 experts nominated by the member states and which works in parallel to the CFR-net.

  9. Negotiorum gestio and unjustified enrichment were also looked at by workshops organised in the framework of the CFR-net on 29.4. and 20.5.2005.

  10. “European Contract Law: Better Lawmaking through the Common Frame of Reference”, a conference hosted by the UK Presidency in London on 26.9.2005. Commissioner Kyprianou’s “opening address” — and also the contributions of other speakers — can be found on the Commission’s Consumer Affairs website at http://europa.eu.int/comm/consumers/cons_int/safe_shop/fair_bus_pract/cont_law/conference26092005_en.htm.

  11. Cf. Jeep/Vossius, Ceci n’est pas un code civil européen — oder etwa doch?, a critical comment from the perspective of two CFR-net members in the form of a “Werkstattbericht”, in: AnwBl 11/2005, 698.

  12. W. van Gerven is right in stating that after the ECJ judgment in the tobacco case (Germany vs. Parliament and Council, C-376/96, 5.10.2000, [2000] ECR I-8419), there is no room to consider Article 95 as basis for a comprehensive codification of private law, cf. “A Common Law for Europe: the Future Meeting the Past?, in: Barrett/Bernardeau (eds.), Towards a European Civil Code, ERA Forum Special issue, 2002. Similarly Remien, Europäisches Privatrecht als Verfassungsfrage, in: Europarecht 6/2005, 699, 706.

  13. Ibid. (fn. 12). Remien (fn. 12), 706, argues that the adoption of uniform law creates a new legal order, a situation that private international law only just avoids, so that the creation of uniform rules for cross-border cases is much more than allowed for in the legal basis of Article 65 (b) EC and consequently transcends the scope of Article 65 EC.

  14. The Constitution is much more ambitious in the area of criminal law, for which Article 271 para. 1 not only lists the areas in which the EU can adopt substantive criminal law, albeit in the form of framework laws, but also provides the possibility for a unanimous Council decision to define other areas of “particularly serious crime with a cross-border dimension”, on which the EU can then legislate on substance.

  15. Action Plan (fn. 4), para. 90 et seq. Cf. in this context Huber, European Private International Law, Uniform Law and the Optional Instrument, in: ERA Forum 2/2003, 85. In its most recent (first) progress report on European contract law, the Commission comments on this so-called “26th regime” at least indirectly by referring to its Green Paper on Financial Services (First Annual Progress Report on European Contract Law and the Acquis Review, ibid. fn. 8, chapter 4.2).

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  1. Academy of European Law (ERA), Trier

    Wolfgang Heusel (Director)

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  1. Wolfgang Heusel
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Heusel, W. European contract law — towards a european frame of reference. ERA Forum 6, 4–7 (2005). https://doi.org/10.1007/s12027-005-0001-9

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