Has a European Civil Code moved a step closer?

Citation

Howells, G. (2010), "Has a European Civil Code moved a step closer?", International Journal of Law and Management, Vol. 52 No. 3. https://doi.org/10.1108/ijlma.2010.01052caa.001

Has a European Civil Code moved a step closer?

Article Type: Editorial From: International Journal of Law and Management, Volume 52, Issue 3.

As one of many academics engaged in developing a Draft Common Frame of Reference (CFR), as part of the Acquis Group, I was heartened by Commissioner Reding's praise for it at her hearing on 12 January in the European Parliament. She clearly wants to make progress in this area and apparently described the draft as “wonderful piece of work” and as the “embryo for a European Civil Code”.

At the moment the draft is purely an academic work, but a political position is promised for summer 2010 and this is likely to be more focused on contract law than the rather wide raging academic draft. Whether the draft is fit for practical use depends of course upon its final form and also what its intended purpose is. It is still unlikely that a legally binding contract Code will be imposed across Europe against the wishes of many in the common law world. Indeed there are strong arguments against reducing the freedom of choice enjoyed by contractors. A possibility is that an additional Community private law regime is created that contractors can opt into. Given that contractors have in the past agreed to be bound by the terms common to English and French law this might be an option for some, although one suspects the certainty of dealing in one legal system whose rules are relatively predictable due to past experience will still appeal to most contractors. Most likely the “Code” will be a toolbox to be used by legislators and others (including possibly judges and arbitrators).

The impact of the toolbox role of the admittedly draft CFR_to-date has been disappointing with the proposal for a Consumer Rights Directive showing few signs of the influence of the draft CFR. Competence for consumer legislation has also been transferred to Commissioner Reding's new Directorate-General that spans Justice, Fundamental Rights and Citizenship. She comes with good consumer credentials having been responsible in her previous post for tackling mobile phone roaming charges. However, this will be tested for, since she still seems to favour maximal harmonization, both the level and quality of the consumer rights eventually legislated for will have to be high. Greater adherence to the CFR may help achieve this. At least it should be a good testing ground to assess the value of the CFR.

Geraint Howells