The creation of a single EU civil and commercial code is a longtime dream for many. The basic idea is to unify the laws of the member States, to create a level playground for citizens in dealing with issues concerning their social life such as family, inheritance, property, etc.; and on the commercial side, to easy the transactions between operators all over the area.

The European Parliament has been pushing for it since 1989[1]. Indeed, already in 1982, a group of scholars led by late prof. Ole Lando started working on that; they eventually produced the PECL – Principles of European Contract Law[2] composed by three Parts which have been completed over some 20 years (Part I, 1995; Part II, 2000; Part III, 2003). PECL are the product of a comparative study on various domestic contract laws/systems, basically from a commercial perspective; they do not take into account the consumers sector, and the relevant huge unification work generated in the recent years by the EU Commission.

The PECL have never become a binding set of rules; rather, it has been working as a soft-law useful instrument with the ambition to both becoming a piece of the lex mercatoria, and the basis for future unification work (especially in discrete areas). PECL have been assumed as a basis for the 2009 DCFR, the Draft Common Frame of Reference for the codification of the whole European contract law and related fields.

A less fortunate initiative was the 2001 Gandolfi’s Code Européen des Contrats, an attempt to conciliate the Italian civil code with the draft Contact Code drafted by the English Law Commission in 1971. At least, however, the Gandolfi’s work has shown how civil, and common law traditions may well go together.

At present, there are little change that a unified EU code of contract law be adopted. In fact, the EU Commission has no authority to regulate pure domestic rules on the subject. We are still stuck at the vague Conclusion no. 39 of the 1999 Tampere EU Council meeting: “As regards substantive law, an overall study is requested on the need to approximate Member States’ legislation in civil matters in order to eliminate obstacles to the good functioning of civil proceedings. The Council should report back by 2001”.

So, the best a fan of unification can hope, is have the member States to gradually converge by their own individual initiative.

In addition – as it has been pointed out – that “The most important constraint on the feasibility of a European Civil Code, however, is the lack, very largely of a common European legal method. The development of such a method for the interpretation of norms, precedent-based arguments and the like is still only in its early stages”[3].

This is disheartening enough. However, there are many indicators that each Member State’s internal law has to come to terms, as its economy does, with a larger unionist perspective. It is hard to say that this will eventually lead to a fully unified system. Local differences will probably persist, but the general trend will likely be towards integration. De facto, if not formally.

For instance, there are already norms dictated for cross border situation that clearly influence the interpretation of analogous norms aimed to just-domestic affairs. Secondly, in respect to the most frequent type of contracts, the CISG – a UN uniform instrument on sale of goods – has been exercising a tremendous impact for some 40 years now, since all the EU Member States (except Ireland and Malta) are part of it. This has created common expectations, at least among commercial players. Again, the B2C sector is already the subject of a vigorous unification, albeit sometimes not generalized as one can desire; and this inevitably has an impact also on B2B transactions (think of the now dominant concept of “lack of conformity” for goods sold, that has replaced the Romanistic categorization of “defectiveness”, and extends its reach to intra-professionals relationship as in the case of redress[4]).

 

 

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[1] EU PARLIAMENT, Resolution on action to bring into line the private law of the Member States (doc A2-157/89 of in OJ C158 of 26/06/1989, 400), for a “common European Code of Private Law”. The impetus was reiterated in 1994 (OJ C 205 of 25/07/1994, 518).

[2] Read the PECL text here: https://www.trans-lex.org/400200/_/pecl/.

[3] SCHMIDT-KESSEL, European Civil Code, in https://max-eup2012.mpipriv.de/index.php/European_Civil_Code.

[4] See art. 18 of the consolidated Directive 2019/771 of 20/05/2019 (OJ L13 of 22/05/2019, 46).

<img src="" class="rounded-circle shadow border border-white border-width-4 mr-3" width="60" height="60" alt="Carlo Mosca">
Author: Carlo Mosca

A lawyer specializing in international commercial transactions. Lexmill's owner.

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