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21st Oct 2018

Academic handbook could form basis for EU civil code

Academic researchers are finalising a big European Commission-funded legal handbook containing the core principles of EU member states' private law.

EU officials say the catalogue, to be presented to the commission in December, could in future form the basis for a full-blown European civil code.

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  • Napoleonic code - The word 'code' makes the Brits fear Napoleon is approaching the white cliffs of Dover (Photo: Wikipedia.org)

More than 150 law researchers from across Europe are drawing up a so-called 'Draft Common Frame of Reference' which will consist of legal articles related to the exchange of goods and services - for example on leasing, damage, the right to withdraw from contracts and unjustified enrichment.

The articles will seek to describe what is the common core of European private law (in this case, mainly contract law), the bulk of which is currently covered by the 27 EU member states' national private law systems.

Private law is deeply rooted in national legal traditions which are often centuries-old, such as the UK's common law or France's Code Civil introduced by Napoleon. Any possible EU interference in the area of private law is therefore seen as highly sensitive.

One of the leading researchers involved in the project, Osnabrück university professor Christian von Bar, told EUobserver that "with the Common Frame of Reference we would have a common basis of private law, with common legal terms."

"Currently, words like 'intention' or 'damage' can have extremely different meanings in different member states' legal systems. At least with the Common Frame of Reference we would have a set of model rules covering the common core of our private law systems," he added.

Commission is cautious

The document will in an initial paperback edition count between 300 and 350 pages, but a second, full version - to be finalized by 2009 – is likely to contain no less than 3,000 pages, including not only law articles but also comments plus extensive footnotes.

Mr Von Bar stresses that at the moment, the draft framework remains a purely academic exercise which has no legal or political status in the EU.

"We as academic researchers are developing the technique - but it fully depends on a political decision of the European Commission, the [EU] Council and the European Parliament if in the end, the Common Frame of Reference will be adopted as an EU instrument", he said.

The commission - which has funded the project to the tune of €4.3 million through its research budget – publicly takes an extremely cautious line on the issue.

It says it sees the Common Frame of Reference merely as a "tool box" for updating existing and preparing new EU private law in the consumer- and business areas, for which it will "select carefully" the "parts of the draft" it needs.

"The scope is not a large scale harmonisation of private law or a European civil code," The EU executive stated in a report in July this year.

The commission's low-key approach to the project reflects member states' deep unease with even a small attempt by Brussels to harmonise their private law systems or - seen as even worse - to create an EU civil code.

MEPs have less taboos

But the European Parliament has less taboos about the similarities between the planned Common Frame of Reference - draft articles of which can already be found online - and a European Civil Code.

A parliament resolution adopted in March 2006 said "Even though the Commission denies that this is its objective, it is clear that many of the researchers and stakeholders working on the project believe that the ultimate long-term outcome will be a European code of obligations or even a full-blown European Civil Code."

"In any event the project is by far the most important initiative under way in the civil law field," it added.

German Christian Democrat MEP Klaus-Heiner Lehne said "The draft Common Frame of Reference indeed comes down to a European Civil Code. But as this is a pure academic piece of work it is up to the responsible political bodies to decide how to further proceed."

Diana Wallis, UK liberal MEP, said "At the moment, this is an exercise by academics. Will it ever form the basis of a Civil Code? I have no crystal ball. Perhaps in very many years. Currently the political climate is not ripe, but perhaps at some point it will be."

"In my own country the word 'code' sounds very foreign," said Ms Wallis who in an earlier speech remarked "Napoleon is immediately seen to be approaching the white cliffs of Dover!"

She added that the current EU treaties as well as the new Reform Treaty offer "no legal basis" for a European civil code.

What kind of EU code?

If ever adopted in the future, an EU civil code could be based on the Common Frame of Reference blueprint. It would harmonise member states' contract law, as well as other legal areas which do not strictly fall under contract law such as tort law.

It is however not expected to include the most sensitive parts of national civil law systems - notably family law and inheritance law.

A European civil code could replace domestic civil law codes or - what is more likely - exist alongside national systems as an "optional" scheme.

Consumers and businesses could in that case choose to be protected by EU civil law when operating in another member state, in order to avoid the bureaucracy and legal uncertainty of foreign contract rules.

"This could take the form of a European 'blue button' for internet purchases," Mr Lehne said. "A consumer buying a product or service on the internet may choose to be protected under EU contract rules by clicking on a blue button, next to buttons for national contract law."

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