Harmonization of law and different legal traditions in the EU

Fryderyk Zoll

The EU as the Community of Law

• Introduction to the process of the unification of the private law in Europe – the competences of the European Union for the unification of the private law

The EU as the Community of Law• Article 114 of the TFEU• (ex Article 95 TEC) • 1. Save where otherwise provided in the Treaties, the following

provisions shall apply for the achievement of the objectives set out in Article 26. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market. (…)

The EU as the Community of LawArticle 81 (ex Article 65 TEC) 1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States. 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: (a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; (b) the cross-border service of judicial and extrajudicial documents; (c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; (d) cooperation in the taking of evidence; (e) effective access to justice; (f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;EN C 83/78 Official Journal of the European Union 30.3.2010(g) the development of alternative methods of dispute settlement; (h) support for the training of the judiciary and judicial staff.

The EU as the Community of LawArticle 352 (ex Article 308 TEC) 1. If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. Where the measures in question are adopted by the Council in accordance with a special legislative procedure, it shall also act unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament.

The patchwork of the EU – contract law

• Harmonization of the contract law of the Member States

• A directive as a mean of the law making – completion of the national legal systems

• Limited competence of the European Union in the legislation in the area of the contract law: limited scope of the contract law directives

Areas governed by the EU - Directives

• Consumer Law: • Pre-contractual information duties (in off premises

contracts, distance contracts, consumer credit contracts, time-sharing contracts, package travels, other consumer contracts, e-commerce contracts)

• Right to withdraw from the contract• Unfair terms • Performance and Non-Performance (consumer

sales contracts, package travel contracts)

Areas covered by the EU-directives

• B2B – contracts: • Independent agents• Delayed Payments

Areas covered by the EU-directives

• Consumer and non-consumer contract law• E-commerce• Payment services• Electronic signatures

Areas covered by the EU-contract law

• Non-discrimination law:• Race and enthnical origin• Gender

• Other grounds for discrimination and the labor law

Different legal traditions of the EU –Member States

• Different legal traditions in Europe:• The civil law tradition• The common law tradition• The Scandinavian tradition (?)• Mixed traditions: Scottland, Malta (?)• Eastern-European legal tradition (?)

Different legal traditions of the EU –Member States – The civil law tradition

• The Roman heritage • Corpus Iuris Civilis (530 – 533 a.Ch)• Digestae/Pandektae (digestae in Latin – sth

structured, pandectae –– collection)• Institutiones• Codex Iustinianus

The civil law tradition

• The Continental Legal System – Tradition of the ius commune

• Renaissance of the Corpus Iuris Civilis in the medieval Europe

• The Discovery in Bologna in the year 1080: Codex Florentinus and Codex Secundus

The civil law tradition

• The Glossators – Irnerius († 1140)• Glossa ordinaria by Accursius († 1260)• Codex – Summe von Azo († 1230)• Quidquid non agnoscit glossa, non agnoscit curia• The Post-glossators: Creation of the link between

the law of Justinian and the local laws and traditions

• Bartolus de Saxoferrato (1314 – 1357)• Baldus de Ubaldis (1327 – 1400)

The civil law tradition

• The relevance of st. Thomas from Aquin (1225 – 1274) for the emergence of the continental tradition of the law

• „Why do we have to observe the promise?”• Searching the philosophical backgrounds of a

legal system

The civil law tradition

• Usus modernus pandectarum – Samuel Stryk (1640 – 1710)- Specimen usus moderni pandectarum

• The roots of the codification movement. Merging the roman law with the local traditions. The law of the nature and the ideas of the structuring of the law

The civil law tradition

• The French efforts to provide a structure to the law:

• Jean Domat, or Daumat (November 30, 1625 – March 14, 1696)

• Lois civiles dans leur ordre naturel (1689)• Robert Joseph Pothier (January 9, 1699 –

March 2, 1772)• Traité des obligations (1761)

The civil law tradition

• The first codifications:• Das allgemeine Landrecht für die preußischen

Staaten (1794)• Code civil (1804)• Allgemeines Bürgerliches Gesetzbuch (1811)

The civil law tradition

• The doctrine of the Pandectistic in the XIX c. • The struggle on the idea of the codification: Thibaut:

Notwendigkeit eines allgemeinen bürgerlichen Rechts für Deutschland (1814)

• und Savigny: Vom Beruf unserer Zeit für Gesetzgebung (1814)

• System des heutigen römischen Rechts von Savigny as the fundament for the later German codification

• The pandectistic structure – Arnold Heise (1778 – 1851)

The civil law tradition

• Begriffsjurisprudenz – the jurisprudence of the notions and its role by the process of elaboration of the German civil code BGB (1896)

• Bernard Windscheid (1817 – 1892) and his formal – dogmatic method

• The BGB – the last codification of the XIX centaury

The civil law tradition

• The continetal alternatives to the BGB: • The swiss civil code from 1907and the Law of

Obligations from 1881 and 1905• Eugen Huber (1849 – 1923) and his one-man project:• Art. 1 Sec. 2 of the Swiss Civil Code:• If there is not a provision in a statute, the court should

apply the customary law and if even the customary law is missing, the scourt should decide according to the rule, which it would create being a legislator

The civil law tradition

• Progretto italo –francese – Vittorio Scialoja (1856 – 1933)

• Codice civile from 1942 a merger between German and French tradition

• The Dutch civil code – Burgerlijk Wetboek 1992 – a model for the European codification?

• Eduard Maurits Meijers 1880 - 1954

The common law

• Common Law and Equity (Judicature Act from 1873)• „The life of law has not been a logic: it has been

experience” (O.W. Holmes jr. (1841 – 1935): The Common Law)

• The tradition of common law and Roman law – the question of influence.

• William Blackstone (1723-1780): Commentaries on the Laws of England – the first structured presentation of the English law

The common law • The idea of the codification within the

common law• Jeremy Bentham (1748 – 1832) and his idea of

the codification of the common law• Some examples of the English statutes: Bill of

Exchange Act (1882); Partnership Act (1890); Sale of Goods Act (1897); Marine Insurance Act (1906) etc.

The common law

• The concept of the codification in the USA: the relevance of the American experience for the process of the Europeanization of the private law in Europe

• Swift v. Tyson (1842); Erie Railroad Co. v. Tompkins (1938)

• David Dudley Field II (1805 – 1984) and his Code of Civil Procedure (1850) and the Draft for the Civil Code

The common law• Christopher Columbus Langdell (1826 -1906) and his case

method: Selection of Cases on the Law of Contracts (1871, Second Edition 1877)

• The relevance of the unified teaching method for the approximation of the laws of the States of the USA.

• The American Law Institute 1923• The idea of the Restatements (Samuel Wiliston (1861 –

1963); Arthur Linton Corbin (1874 – 1967)• Restatement of the Law of Contracts (1923 – 1942)• Restatement of the Law of Contracts (Second) – 1962 – 1979)

The common law

• National Conference of the Commissioners on Uniform Stale Laws (1892)

• Uniform Commercial Code 1956: Karl Nickerson Llewellyn (1893 – 1962)

• Restatements and UCC as the models for Europe

The common law

• The idea of the codification in England• Harvey McGregor’s (*1926) draft for the code

of contracts for England and its fortune. • Europeanization of the English common law

The Scandinavian Tradition• A problem with the classification of the Scandinavian law• Danske Lov 1683 and Norske Lov 1687; Sveriges rikes lag 1734• Very limited influence of the Roman law on the Scandinavian

legal system• The legal isolation• The proposal of a codification by Lassen (1899)• The Unification of the sales law in Scandinavia (in the 20-ties)• The Unification of the property law • Well developed system of the consumer protection• „The courts may not do injustice” (Thomas Wilhelmsson)

The Central European Legal Tradition

• The legal systems with the „broken history”• The excessive use of the comparative method• The Example of Poland: The Polish Law of

Obligation from 1933, Roman Longchamps de Berier (1883 – 1941)

• The socialist heritage