The European civil code (ECC) is a proposed harmonisation of private law across the
European Union
The European Union (EU) is a supranational political and economic union of member states that are located primarily in Europe. The union has a total area of and an estimated total population of about 447million. The EU has often been des ...
.
The ultimate aim of a European
civil code
A civil code is a codification of private law relating to property, family, and obligations.
A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core ar ...
is, like a national
civil code
A civil code is a codification of private law relating to property, family, and obligations.
A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core ar ...
, to deal comprehensively with the core areas of private law. Private law typically covered in a civil code includes the
family law
Family law (also called matrimonial law or the law of domestic relations) is an area of the law that deals with family matters and domestic relations.
Overview
Subjects that commonly fall under a nation's body of family law include:
* Marriage, ...
, the law of
inheritance
Inheritance is the practice of receiving private property, Title (property), titles, debts, entitlements, Privilege (law), privileges, rights, and Law of obligations, obligations upon the death of an individual. The rules of inheritance differ ...
,
property law
Property law is the area of law that governs the various forms of ownership in real property (land) and personal property. Property refers to legally protected claims to resources, such as land and personal property, including intellectual pro ...
and the
law of obligations
The law of obligations is one branch of private law under the civil law legal system and so-called "mixed" legal systems. It is the body of rules that organizes and regulates the rights and duties arising between individuals. The specific rights a ...
. The law of obligations includes the law of contracts,
delicts
Delict (from Latin ''dēlictum'', past participle of ''dēlinquere'' ‘to be at fault, offend’) is a term in civil and mixed law jurisdictions whose exact meaning varies from jurisdiction to jurisdiction but is always centered on the notion of ...
(or
tort
A tort is a civil wrong that causes a claimant to suffer loss or harm, resulting in legal liability for the person who commits the tortious act. Tort law can be contrasted with criminal law, which deals with criminal wrongs that are punishable ...
s) and
restitution
The law of restitution is the law of gains-based recovery, in which a court orders the defendant to ''give up'' their gains to the claimant. It should be contrasted with the law of compensation, the law of loss-based recovery, in which a court o ...
. 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, the term 'European civil code' is often used in specific reference to the harmonisation of contract law throughout the EU.
History
The Lando Commission
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 (formally, the International Institute for the Unification of Private Law; French: ''Institut international pour l'unification du droit privé'') is an intergovernmental organization whose objective is to harmonize international privat ...
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
The ''Principles of European Contract Law'' (PECL) is a set of model rules drawn up by leading contract law academics in Europe. It attempts to elucidate basic rules of contract law and more generally the law of obligations which most legal syste ...
'' (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.
''Towards a 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 was 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. The years following this conference have seen the development of many academic groups focusing on different areas of private law. These include:
* The Study Group on a European Civil Code,
[Hondius et al. (2004), p. 14.] formed in 1997 and chaired by Professor
Christian von Bar
Christians () are people who follow or adhere to Christianity, a monotheistic Abrahamic religion based on the life and teachings of Jesus Christ. The words ''Christ'' and ''Christian'' derive from the Koine Greek title ''Christós'' (Χρισ ...
at the
University of Osnabrück
A university () is an institution of higher (or tertiary) education and research which awards academic degrees in several academic disciplines. Universities typically offer both undergraduate and postgraduate programs. In the United States, the ...
.
* The Acquis Group (official name: Research Group on EC Private Law) at the
University of Münster
The University of Münster (german: Westfälische Wilhelms-Universität Münster, WWU) is a public university, public research university located in the city of Münster, North Rhine-Westphalia in Germany.
With more than 43,000 students and over ...
focuses on existing European Community private law.
[Idem, p. 15.]
* The
Commission on European Family Law The Commission on European Family Law (as known as CEFL) was established on September 1, 2001. Its main objective is working for the harmonization of family law throughout Europe. The CEFL consists of experts in the field of family and comparative l ...
based at
Utrecht University
Utrecht University (UU; nl, Universiteit Utrecht, formerly ''Rijksuniversiteit Utrecht'') is a public research university in Utrecht, Netherlands. Established , it is one of the oldest universities in the Netherlands. In 2018, it had an enrollme ...
.
* The
European Group on Tort Law
The European Group on Tort Law, sometimes called the Spier/Koziol group,Hondius et al, ''Towards a European Civil Code'' (2004), p. 14. is an academic group devoted to revising tort principles that are supposed to be common to Europe.
In 1992 Jaa ...
, also called the Spier/Koziol group, in association with the
European Centre of Tort and Insurance Law
Since November 2000 the European Centre of Tort and Insurance Law (ECTIL), 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 ...
in Vienna.
* The Common Core of European Private Law project conducted by
Mauro Bussani Mauro Bussani (born December 14, 1959, in Trieste, Italy, to Jolanda Evangelisti, a seamstress, and Nereo, an Italian Red Cross employee and unionist) is Professor of Comparative Law at the University of Trieste Law School, Italy, and Adjunct Profes ...
and
Ugo Mattei
Ugo Mattei (born 1961 in Turin, Piedmont) is the Alfred and Hanna Fromm Professor of International and Comparative Law at the University of California, Hastings College of the Law, in San Francisco, California, and a full professor of civil law in ...
at the
University of Trento
The University of Trento (Italian: ''Università degli Studi di Trento'') is an Italian university located in Trento and nearby Rovereto. It has been able to achieve considerable results in didactics, research, and international relations accor ...
.
* The Académie des Privatistes Européens at the
University of Pavia
The University of Pavia ( it, Università degli Studi di Pavia, UNIPV or ''Università di Pavia''; la, Alma Ticinensis Universitas) is a university located in Pavia, Lombardy, Italy. There was evidence of teaching as early as 1361, making it one ...
, headed by Giuseppe Gandolfi. It published a Draft Code ('avant-projet') in 2002.
* The Leuven Centre for a Common Law of Europe, founded in 2001 by professor
Walter Van Gerven, who wrote a number of European casebooks together with
Basil Markesinis.
* The Joint Network on European Private Law has also been created and includes several of the above groups.
''Common Frame of Reference''
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 was hoped that the creation of a unified European contract law would be achieved by 2010.
The ''Draft Common Frame of Reference'' (DCFR), a joint project of the Study Group and Acquis Group (funded by the European Commission for €4.3 million), was published in December 2007. Although the European Commission downplayed the CFR's expected future importance in a July 2006 report, a March 2006 European Parliament resolution stated that "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."
Economist Gerhard Wagner hailed "the drafting of a coherent set of rules" for all of Europe, such as the DCFR, as "an immense scientific achievement".
Contents of a European civil 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
The ''Burgerlijk Wetboek'' (or BW) is the Civil Code of the Netherlands. Early versions were largely based on the Napoleonic Code. The Dutch Civil Code was substantively reformed in 1992. The Code deals with the rights of natural persons (Book 1) ...
'' 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. The March 2006 European Parliament resolution recommended taking the new Dutch civil code as a model as well.
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.
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 by opponents. The connection between law, language, culture and national history forms one small aspect of the arguments against replacing national
civil code
A civil code is a codification of private law relating to property, family, and obligations.
A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core ar ...
s with a European code. Arguments based upon cultural differences are, however, difficult to establish.
More substantive difficulties, which for some are reasons why it is neither feasible nor desirable to create a European civil code, include:
# 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.
# 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.
# 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. Replacing part of each system's law, without altering the rest, will introduce incoherence.
# If the European Court of Justice is given jurisdiction over the interpretation of any code, even more disputes will be subject to the gross delays to which appeals to that court are already subject.
# The draft principles in existence are not, substantively, satisfactory. For example, the draft Principles of Liability for Non-Contractual Damage define "causation" in a way that 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."
# 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.
# There is also the issue regarding the differences between common law and civil law and which principles to adopt, an issue which can be underrated. Opponents argue the two systems vary greatly at times and any successful civil code would have to take this into consideration due to the UK's status as compared to the rest of the EU. This makes introducing "harmonised" or "standardised" principles difficult in both theory and practice where some jurisdictions do not recognise certain practices (i.e. the right to specific performance, the inclusion of prior negotiations in contract interpretation etc.) or approach concepts in different ways (i.e. "good faith", "equity"). It would not be easy to reconcile such differences.
In April 2017, after
Theresa May
Theresa Mary May, Lady May (; née Brasier; born 1 October 1956) is a British politician who served as Prime Minister of the United Kingdom and Leader of the Conservative Party from 2016 to 2019. She previously served in David Cameron's cab ...
triggered
Article 50
Withdrawal from the European Union is the legal and political process whereby an EU member state ceases to be a member of the Union. Article 50 of the Treaty on European Union ( TEU) states that "Any Member State may decide to withdraw from t ...
for the UK,
Guy Verhofstadt
Guy Maurice Marie Louise Verhofstadt (; ; born 11 April 1953) is a Belgian politician who was the leader of the Alliance of Liberals and Democrats for Europe from 2009 to 2019, and has been a member of the European Parliament (MEP) from Belgium ...
remarked that "it was naïve, maybe, to reconcile the legal system of Napoleon with the common law of the British Empire, and perhaps it was never meant to be. But our predecessors should never be blamed for having tried to."
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
The Treaty of Rome, or EEC Treaty (officially the Treaty establishing the European Economic Community), brought about the creation of the European Economic Community (EEC), the best known of the European Communities (EC). The treaty was signe ...
is considered the means through which a code would be created. However, many people believe that 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 were to be reached in favour of a European civil code, it might be politically possible to expand the constitutional competence of the European Union or create an international treaty giving effect to the code. According to professor Christian von Bar "it fully depends on a political decision of the European Commission, the
UCouncil and the European Parliament if in the end, the ''Common Frame of Reference'' will be adopted as an EU instrument."
For
Arguments supporting a unified European civil code relate to the emergence of the European Union and an increasingly globalised economy. Proponents also point out that Europe, including England, shares a long legal history in the form of the ''
ius commune
''Jus commune'' or ''ius commune'' is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" i ...
'' before the 18th and 19th century national codifications.
Besides, except for England and Ireland, all of Europe shares the
civil law tradition
Civil law is a legal system originating in mainland Europe and adopted in much of the world. The civil law system is intellectualized within the framework of Roman law, and with core principles codified into a referable system, which serves as t ...
which began with the
Napoleonic Code of 1804.
# 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.
# There is no particular reason to assume the national level is the 'natural' level to regulate matters such as contract law on, because it was nearly the same across Europe for centuries up until the 19th century (when nation-states were formed), and if it would be somehow better regulated 'closer to the citizens', one might as well take it to the provincial or municipal level instead of the national level.
# 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.
# European integration has rapidly increased the mobility of private persons, be they employees, students, migrants or tourists. Harmonisation of European civil law will facilitate citizens' mobility by increasing their legal security.
# 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.
# Anticipated obstacles, such as the alleged incompatibility between the continental civil law tradition and the English common law tradition, shouldn't be too much of a problem to overcome, since the underlying legal concepts and rules aren't really all that different.
# Some argue for an 'optional' European Civil Code, alongside the national civil codes, leaving the contracting parties the freedom to choose and thus opening up more possibilities.
# Contracting parties will no longer need to hire expensive experts from the countries involved to explain to judges how the respective countries' law is to be understood on numerous matters. A policy aimed at the development of a European civil code will easily pass the
proportionality test.
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 Community acquis or ''acquis communautaire'' (; ), sometimes called the EU acquis and often shortened to acquis, is the accumulated legislation, legal acts and court decisions that constitute the body of European Union law that came into b ...
(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.
Professor European Private Law Martijn W. Hesselink (director of the Amsterdam Centre for the Study of European Contract Law at the
University of Amsterdam
The University of Amsterdam (abbreviated as UvA, nl, Universiteit van Amsterdam) is a public research university located in Amsterdam, Netherlands. The UvA is one of two large, publicly funded research universities in the city, the other being ...
) argued in October 2007 that the development of a European contract code, or more broadly, civil code, should happen transparently, and with the participation and consent of citizens, consumers and smaller companies, lest big businesses will be able to obtain too much power over the others.
See also
*
European tort law
European 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
After W ...
* ''
Principles of European Tort Law
European 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
After W ...
''
* ''
Restatements of the Law
In American jurisprudence, the ''Restatements of the Law'' are a set of treatises on legal subjects that seek to inform judges and lawyers about general principles of common law. There are now four series of ''Restatements'', all published by the ...
''
References
Literature
*
* (Study Group on a European Civil Code & Acquis Group)
External links
Study Group on a European Civil CodeAcademic handbook could form basis for EU civil codecriticism {{in lang, cs
European Union law
Civil codes
Private law