European civil code
Encyclopedia
The European civil code (ECC) is a proposed harmonization 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 contract
s, tort
s 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.
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:
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 is hoped that this will lead to the creation of a unified European contract law by as early as 2010.
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.
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.
There is, as yet, no empirical evidence that the lack of a uniform civil code across the European Union represents a barrier to trade. Within the United States there is no uniform civil law across the fifty states, and this has never been thought to represent an economic barrier to the proper functioning of the American economy.
forms one small aspect of the arguments against replacing national civil code
s with a European code.
Arguments based upon cultural differences are however difficult to establish. More substantive difficulties include.
First that 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.
Second, 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.
Third 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. The law of property, for example, is dependent upon the scope and shape of each state's law of tort or delict, and vice versa. Replacing part of each system's law, without altering the rest, will introduce incoherence.
Fourth if the European Court of Justice is given jurisdiction over the interpretation of any code, even more dispuites will be subject to the gross delays which appeals to that court are
already subject.
Fifth the draft principles in existence are not, substantively, satisfactory. For example, the draft Principles of Liability for Non-Contractual Damage defines "causation" in a way which 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."
Sixth 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.
For these reasons people say it is neither feasible nor desirable to create a European civil code.
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 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 is reached in relation to a European civil code it may be politically possible to expand the constitutional competence of the European Union or create an international treaty giving effect to the 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.
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
.
The ultimate aim of a European civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
is, like a national civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
, to deal comprehensively with the core areas of private law. Private law typically covered in a civil code includes the family law
Family law
Family law is an area of the law that deals with family-related issues and domestic relations including:*the nature of marriage, civil unions, and domestic partnerships;...
, the law of inheritance
Inheritance
Inheritance is the practice of passing on property, titles, debts, rights and obligations upon the death of an individual. It has long played an important role in human societies...
, property law
Property law
Property law is the area of law that governs the various forms of ownership in real property and in personal property, within the common law legal system. In the civil law system, there is a division between movable and immovable property...
and the Law of Obligations
Law of obligations
The law of obligations is one of the component private law elements of the civil system of law. It includes contract law, delict law, quasi-contract law, and quasi-delict law...
. The law of obligations includes the law of contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
s, tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s and restitution
Restitution
The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. Obligations to make restitution and obligations to pay compensation are each a type of legal response to events in the real world. When a court...
. 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.
History
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
UNIDROIT
The International Institute for the Unification of Private Law, also known as UNIDROIT, is an independent intergovernmental Organisation based in Rome, Italy...
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
PECL
The abbreviation PECL can refer to:* PHP Extension Community Library, a repository of extensions for the PHP programming language* Positive emitter-coupled logic, a family of digital integrated circuits...
). 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 LawEuropean Group on Tort LawThe European Group on Tort Law is an academic group devoted to revising tort principles that are supposed to be common to Europe.In 1992 Jaap Spier, who at the time was a professor of law at the Universiteit van Tilburg, called together a group of scholars to discuss fundamental questions of tort...
in association with the European Centre of Tort and Insurance LawEuropean Centre of Tort and Insurance LawSince November 2000 the European Centre of Tort and Insurance Law , based in Vienna, has been an association whose purpose is*to conduct legal and comparative research in the field of national, international and common European tort and insurance law...
in Vienna - Study Group on a European Civil Code formed in 1997 and chaired by Professor 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 is hoped that this will lead to the creation of a unified European contract law by as early as 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.For
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.
There is, as yet, no empirical evidence that the lack of a uniform civil code across the European Union represents a barrier to trade. Within the United States there is no uniform civil law across the fifty states, and this has never been thought to represent an economic barrier to the proper functioning of the American economy.
Against
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 historyHistory
History is the discovery, collection, organization, and presentation of information about past events. History can also mean the period of time after writing was invented. Scholars who write about history are called historians...
forms one small aspect of the arguments against replacing national civil code
Civil code
A civil code is a systematic collection of laws designed to comprehensively deal with the core areas of private law. A jurisdiction that has a civil code generally also has a code of civil procedure...
s with a European code.
Arguments based upon cultural differences are however difficult to establish. More substantive difficulties include.
First that 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.
Second, 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.
Third 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. The law of property, for example, is dependent upon the scope and shape of each state's law of tort or delict, and vice versa. Replacing part of each system's law, without altering the rest, will introduce incoherence.
Fourth if the European Court of Justice is given jurisdiction over the interpretation of any code, even more dispuites will be subject to the gross delays which appeals to that court are
already subject.
Fifth the draft principles in existence are not, substantively, satisfactory. For example, the draft Principles of Liability for Non-Contractual Damage defines "causation" in a way which 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."
Sixth 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.
For these reasons people say it is neither feasible nor desirable to create a European civil code.
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 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 is reached in relation to a European civil code it may 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.
See also
- Restatements of the Law
- European tort lawEuropean tort lawEuropean Tort Law, as a term, is not strictly defined and is used to describe a number of various features concerning tort law in Europe. The concept developed alongside other major historic developments of European integration.-History:...
- Principles of European Tort LawPrinciples of European Tort LawThe Principles of European Tort Law are a compilation of guidelines by the European Group on Tort Law aiming at the harmonization of European tort law. They are not intended to serve as a model code, even though their wording may resemble statutory texts. At least with respect to form and...