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.”
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 ‘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.
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.
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.
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,” zegt CDU-europarlementariër Klaus Lehne tegen EUobserver. “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.”