European civil code
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The European civil code (ECC) is a proposed harmonisation of private law across the European Union.
The ultimate aim of a European civil code is, like a national civil code, to deal comprehensively with the core areas of private law. Private law typically covered in a civil code includes the family law, the law of inheritance, property law and the Law of Obligations. The law of obligations includes the law of contracts, delicts (or torts) and restitution. It was from work on European contract law that the push for a comprehensive European civil code arose. The development of a European civil code has primarily focused on creating a unified law of contracts. Thus European civil code is often used in specific reference to the harmonisation of contract law throughout the EU.
The idea of a unified European civil code can be traced to the idea of a unified Europe and the creation of the European Union. The European Parliament requested the creation of a European civil code in 1989, 1994 and 2000. A pragmatic approach has seen the proponents of a European civil code develop uniform laws in discrete areas before working towards a comprehensive European civil code.
Development of a European code for contract law began in 1982 with the formation of the Commission on European Contract Law. This became known as the Lando Commission after its chairman Ole Lando. At the same time UNIDROIT began similar studies leading to their 1994 publication Principles for International Commercial Contracts. The Lando Commission focused on creating their Principles of European Contract Law (PECL). The first part of the PECL was published in 1995, followed by Part II in 1999 and the final Part III in 2003. These Principles of European Contract Law may eventually form one part of the European civil code.
In 1997 the Dutch Government, as then Chair of the European Union, held a conference titled 'Towards a European Civil Code'. The conference considered the feasibility of such a code and led to the creation of a book titled “Towards a European Civil Code’. The third edition published in 2004 and although the primary focus is European contract law, it considers other areas of private law that may form part of a European civil code as well. In the years following this conference we have seen the development of many academic groups focusing on different areas of private law. These include:
- The Acquis Group created to focus on existing European Community private law.
- Commission on European Family Law based at the University of Utrecht.
- European Group on Tort Law in association with the European Centre of Tort and Insurance Law in Vienna
- Study Group on a European Civil Code formed in 1997 and chaired by Professor Christian von Bar at the University of Osnabrück
- The Common Core of European Private Law project conducted by Mauro Bussani and Ugo Mattei at the University of Trento
- The Joint Network on European Private Law has also been created and includes several of the above groups.
On 11 July 2001 the European Commission issued a Communication in relation to possible developments in European contract law. Following the review of submissions on the Communication, the Commission released an Action Plan for a more coherent European contract law in 2003. The Action Plan began the process of creating what is known as the Common Frame of Reference (CFR). This was followed in 2004 by the publication of “European Contract Law and revision of the acquis: the way forward”. The CFR is intended to provide a structure and guideline for the development of harmonised European private law but has a specific focus on contract law. It was hoped that the creation of a unified European contract law would be achieved by 2010.
Content of a European Code
A comprehensive European civil code would cover the major areas of private law in much the same way as domestic civil codes. The major areas that have been suggested are contract law, torts, property, restitution and also company law. Although family law and inheritance law are normally covered by domestic civil codes there is doubt over whether it is possible to include them in a broad European code. Family and Inheritance law is often closely tied to a nation’s culture. For this reason it may not be possible or suitable to create a uniform code to cover the entire European Union. As previously stated, contract law is perhaps the most suited for harmonisation, followed by other areas of the law of obligations and the law of property. The creation of individual codes for discrete areas of private law is considered the most feasible and realistic goal. For this reason efforts have concentrated on creating a unified European contract law before attempting a more comprehensive European civil code. An example of a modern comprehensive code is the Dutch Burgerlijk Wetboek which came into force in 1992. The Burgerlijk Wetboek covers civil, commercial law, consumer law and labour law and was almost 40 years in the making. This gives an indication of how long it may take to create a complete unified European civil code.
Arguments for and against a European civil code
Many arguments have been raised both supporting and rejecting the idea of a European civil code. Included in this are claims that the creation of a civil code binding across the European Union will be impossible to achieve. As a much broader project, the creation of a European civil code is more easily dismissed than attempts at unifying discrete areas such as contract law.
Arguments supporting a unified European civil code relate to the emergence of the European Union and an increasingly globalised economy. The European Union represents a unification of Europe and a reduction in the significance of national borders. The creation of a European civil code can be seen as a further step in this process of unification. Differences in national laws may create problems of efficacy in the ever more globalised economy. A uniform civil code will help overcome these problems and reduce barriers to increased trade within the European Union. The increasing use of standard form contracts is also said to indicate a desire for a European civil code or at least a harmonisation of European contract law.
The feasibility of a European civil code has been questioned on both political and legal grounds. Cultural differences and the lack of a common European legal culture are often cited. The connection between law, language, culture and national history forms one small aspect of the arguments against replacing national civil codes with a European code. Arguments based upon cultural differences are, however, difficult to establish.
More substantive difficulties, which for some are reasons why it is neither feasible nor desirable to create a European civil code, include:
- The process by which Community instruments are now produced leads almost inevitably to second-rate law. For example, within private international law, which is harmonised within the European Union, the Rome II Regulation is an unhappy political compromise between Parliament, Council and Commission.
- Once a Civil Code is in place any errors it contains will take years, if not decades, to correct as agreement from all participating parties will be required.
- Any Civil Code will be a piecemeal replacement of part of each member state's legal system. Laws within nations form a system: one part is shaped by and dependent upon another. Replacing part of each system's law, without altering the rest, will introduce incoherence.
- If the European Court of Justice is given jurisdiction over the interpretation of any code, even more disputes will be subject to the gross delays to which appeals to that court are already subject.
- The draft principles in existence are not, substantively, satisfactory. For example, the draft Principles of Liability for Non-Contractual Damage define "causation" in a way that is transparently circular: "A person causes legally relevant damage to another if the damage is to be regarded as a consequence of that person’s conduct or the source of danger for which that person is responsible."
- It is impossible within a few brief code provisions to capture the many technical and minor points which are thrown up in private law disputes. Within member states these have long been settled, although not uniformly. A new Code will lead to immense litigation and disruption as these points are re-litigated anew.
- There is also the issue regarding the differences between common law and civil law and which principles to adopt, an issue which can be underrated. The two systems vary greatly at times and any successful civil code would have to take this into consideration due to the UK's status as compared to the rest of the EU. This makes introducing "harmonised" or "standardised" principles difficult in both theory and practice where some jurisdictions do not recognise certain practices (i.e. the right to specific performance, the inclusion of prior negotiations in contract interpretation etc.) or approach concepts in different ways (i.e. "good faith", "equity"). It is not easy to reconcile such differences.
Whether the European Union has the legal power to create a European civil code has also been an issue. Article 95 of the EC Treaty is considered the means through which a code would be created. However, many people believe that the EU lacks the constitutional competence to enact a comprehensive code. Others argue that this does not defeat the idea of a European civil code and is merely a political issue. If a general consensus were to be reached in favour of a European civil code, it might be politically possible to expand the constitutional competence of the European Union or create an international treaty giving effect to the code.
European contract law
As previously stated, the discussion of a European civil code has had a primary focus on the development of a unified European contract code. Proponents of a European code of contract law have largely been divided into two groups. One group favours the use of the acquis communautaire (the body of European Union law) as the basis of a unified European contract law. The other has preferred a foundation in the field of comparative law and analysis of the domestic contract law of member states of the EU. The latter view was the initially dominant opinion in the field but more recently the Acquis position has come to the fore.
Both options were provided for in the Commission of European Communities 2001 Communication on European contract law. Although there were many submissions supporting both fields of thought, most favoured a review of the Acquis as a basis for developing European contract law. The subsequent Action Plan and its follow up Way Forward paper have progressed the development of a European code of contract law as well as a more comprehensive European civil code. The intended outcome of this new stage is the publication of the Common Frame of Reference. The CFR is hoped by some to form the central part of a future unified European contract law, although this is not its purpose. It is expected to be published in 2009/10.[needs update]
- Official Journal of the European Communities, 1989, N. C 158/400.