legal engineering at the services of european private law (epl)

International Journal of International Law ISSN :2394-2622 Volume 1 Issue 1

1 Published By : Universal Multidisciplinary Research Institute Pvt Ltd

Title: ‘Legal Engineering at the services of European Private Law (EPL)’

By Ivan Sammut Ph.D. (Lond.)1

1. Introduction – Why Europeanize European private law?

The emergence of a common private law for Europe is a topical issue. Over the last

quarter of a century many academics, practitioners and to a lesser extent European

politicians have debated on the question to what extent the European Union (EU) is in

need of a uniform private law and what this should look like. The starting point of this

debate can be traced to the 1989 resolution of the European Parliament in which it called

for the elaboration of a European civil code.2 Since then many books and journal articles

have been devoted to the future of private law in Europe. This exercise have reached a

new climax with the publication of the Draft Common Frame of Reference (DCFR) in

20083 and which have been followed in subsequent European Communications and

Proposals.4 This discipline looks at questions related to the convergence of laws of

contract, tort, company as well as other fields of law including the law of persons or the

law of succession. The convergence of law can be described as the process of

Europeanization which is being understood to mean the process whereby different

concepts of national private law are brought to some varying degree closer together to

achieve some form of common elements at European level.5 This can be formal through

the European institutions or informal through other means. The process of

Europeanization often rekindles the debate about the ius commune referring to the period

of time mainly during the 17th

and 18th

century in which a true common law did exist in

continental Europe. Of course the legal culture of today‟s EU Member States is not

precisely as unified as it was at that time both linguistically and culturally. Latin has not

been replaced by one lingua franca as the language of the law and Roman law is not the

1 Lecturer in European Law at the Faculty of Laws, University of Malta, Malta

2 See Resolution A2-157/89. This call was repeated in 1994 (A3-00329/94) in 2001 (C5-0571/2001) and in

2006 in Resolution A6-0055/2006 3 See „Principles, Definitions and Model Rules of European Private Law (Draft Common Frame of Reference

(DCFR), Sellier, European law publishers, 2008 4 Green Paper on policy options for progress towards a European Contract Law for consumers and business,

COM (2010) 348 final & Proposal on a Common European Sales law {SEC (2011) 1165 final} 5 See Smits J. „Convergence of Private Law in Europe: Towards a New Ius Commune?‟, in Orucu E. & Nelken

D. (eds.) “Comparative Law – A Handbook”, Hart Publishing, 2007, p. 219



only major source of law. Nevertheless one can make comparisons for academic

purposes.

The aim of this contribution is to study how the science of comparative law has helped the

Europeanization of European law in the modern context. What role does the process of

comparative law at EU level play in the development of European private law? Several

questions are raised about the influence of comparative law in the emergence of European

private law. However no definitive answers about the emergence of European private law

would be given, but will provide with the reader with the necessary tools to answer them

for him or herself while proving that comparative law plays a crucial role in the

Europeanization process. The private laws of the EU Member State is currently made up

of 29 private law systems (28 national systems6 and Scots law) plus the laws that are

derived from the EU legal order through regulations and directives. Basically most form

part of the civil law tradition with the UK (excluding Scotland) and Eire follow the

common law tradition while others namely Scotland, Malta and Cyprus are more of a

mixed legal tradition. Whatever methodological process one chooses to bridge the legal

orders of the Member States and arrive at some form of Europeanization of private law,

comparative law with its multiplicity of different ways and methods plays a very important

role. Using Karhu‟s method on the basic distinction that can be made on the basis whether

the focal area contains norms which are valid law or whether norms are evolving using the

notions of de lege lata and de lege feranda. 7

This paper first seeks to analyse what lies beneath comparative law in the development of

private law at both Member State level as well as at the EU level. The paper starts by

looking at the tools to Europeanize private law and see the role that comparative law play

in the functioning of these tools. The tools include cooperation, harmonization or

approximation, standardization or uniformisation and finally unification. As some writers

may use different connotations for each term, it is important to clarify at this stage the

meaning being attributed to each of this terminology in this paper. The second section of

the paper looks at the role comparative law using the above mentioned tools play in the

development of European private law. This is done by looking at the two main European

6 The Republic of Croatia becomes the 28

th member of the EU on 1

st July 2013

7 Kahu Juha, „How to make Comparable Things: Legal Engineering at the service of Comparative law‟ in Van

Hoecke (ed.,) Epistemology & Methodology of Comparative Law , Hart Publishing, Oxford, 2004, p. 80



legal families, the civil law system and the common law system and then examines how

comparative law, especially comparative law in the modern context has been bridging the

gaps and increasing the mixedness of private law. Having looked at some trends at

national level which demonstrate the increasing importance of the comparative exercise,

the next step would be to look at the nature of the European mixed legal systems and then

the mixedness in the emergence of private law at the European level itself. The third part

of the paper analyses the emergence of European private law and examines the successes

and failure of legal transplants. The final section of the paper includes a reference to the

Draft Common Frame of Reference (DCFR) which can be used as an academic laboratory

to prove the role comparative law plays with the above tools in the potential development

of European private law. The DCFR proves that comparative law is a very useful process

both to develop law at a European level as well as to improve existing modern private law

of the Member States. Finally a link is shown between the Europeanization of private law

and the globalisation of private law which is of interest to all legal systems based on the

western legal families.

2. The methodological tools to Europeanize private law

Before embarking upon our venture, as some writers may use different connotations for

each term, it is important to clarify at this stage the meaning being attributed to each of

this terminology in this work. In the table below one can find a list of the methodological

tools that are going to be analysed starting with the least integrationist one, cooperation,

and going chronologically towards the tool which is the most integrationist, unification.8

Codification/Consolidation does not fit into the chronology of Table 1 as per definition,

given that it can be applied to the results of most of the tools listed in the table.9

Comparative law plays an essential role in the employment of these tools to achieve the

sought Europeanization as the actual use of these methodological tools imply a

comparative study to try and achieve the objectives through a common denominator for

the Member States‟ legal systems whether through Regulations using mainly unification as

a tool or through Directives using harmonization as a tool.

8 Sammut I., „Tying the Knot in European Private Law‟, (2009) 17.European Review of Private Law, p. 813-840

9 Sammut I., „Tying the Knot in European Private Law‟, (2009) 17.European Review of Private Law, p. 813-840



Table 1

Tool Definition Level of

Integration

Main

Characteristics

1. Cooperation Consultation

between

Member

States on

legislative

initiatives

Minimal - Very partial

- Very

unsystematic

- Dynamic

2.

Approximation/Harmonizatio

n

Legal rules

from

different

jurisdictions

are brought

closer to

each other in

scope.

Minimal to

Comprehensiv

e with varying

degrees of

integration

- Partial

- Unsystematic

- Two levels of

governance

- Dynamic

3. Uniformisation or

Standardisation

Legal rules

from

different

jurisdictions

are similar to

each other in

scope.

Comprehensiv

e to almost

Complete

- Partial

leaning

towards

Comprehensiv

e

- Unsystematic

- Two levels of

governance



- Less

Dynamic

4. Unification A

supranationa

l legal rule

applicable in

all Member

States

Complete - Complete

- Could be

systematic

- One level of

governance

- Static

2a) Cooperation

Cooperation involves the consultation between the Member States to coordinate their

national law closer together. The TFEU10

provides for the „coordination‟, „approximation‟

and „harmonization‟ of national legislation in various domains. In EU legal jargon,

although the latter two have the same meaning, the latter one is often preferred.

Coordination came to be regarded as denoting a different and more superficial action than

the other two terms.11

Thus one can say that cooperation is to be taken to be a very loose

form of harmonization. Cooperation, rather than harmonization taking place by a legal

instrument, may take place through soft forms of integration such as informal agreements

between Member States or through soft-law initiatives. It is the least integrationist of all

the tools and does not include any formal steps to achieve the Europeanization of private

law. It could be used for those areas that are under the reserved competence of the

Member States. Cooperation is therefore a very weak tool to be used for Europeanization

if the Community Method12

is employed. However it can be a very important tool when

10

Treaty on the Functioning of the European Union 11

Dembour M., „Harmonization and the Construction of Europe: Variations away from a Musical Theme‟, EUI

Law No 96/4, 1996, p. 5 12

The Community Method is the system the forefathers of the then European Economic Community (EEC) now

the European Union envisaged where the Commission representing the Union has the sole right to initiate

policy, while the European Parliament representing the EU citizens & the Council of Ministers representing the

Member States vote together through what is now the co-decision procedure.



the innovative modes of governance are resorted to as cooperation may go beyond the

remits allowed by the Community Method.

2b) Approximation or Harmonization

Harmonization or approximation or coordination13

is the process whereby legal rules from

different jurisdictions are brought closer to each other in scope.14

Harmonization is a

common method used by the European Union to bring the laws of the Member States

closer to each other by means of directives in order to achieve the Internal Market. An

important characteristic of directives that is affecting the new European legal culture is

that a directive leads to „Impressionistic Harmonization.‟15

Directives deal with specific

subjects that in most legal systems form part of a broader subject which may in turn be

systematically connected with other subjects. This patchwork characteristic of

harmonization of directives is a direct result of the instrumental approach to law. The

Commission from which directives originate is concerned with certain specific changes in

the law which it may regard as necessary to fulfil the function of the Internal Market and

which are politically desirable. The directive is not concerned with the result it may have

on the national legal system and even the same effect could vary from one system to

another. This functional and impressionistic approach to private law could lead to friction

within the national legal systems. While the directives aim at unity at European level, they

may cause disunity at national level.16

The disruptive effect is a direct result of the

impressionistic approach. As Muller-Graff argues, to make the matters even worse,

directives are frequently incoherent among themselves.17

This has lead to the

impressionistic approach to be lamented by private scholars and is one of the main reasons

for pleas for a systematic unification in the form of a European Civil Code.18

Given the

above nature of the tool, harmonization is a very popular and important tool to be utilised

with the traditional mode of governance.

13

These are different terms that are sometimes used interchangeably in the EC Treaty, for example, Article 6,

27, 40 41, 43, 54(3) (g), 56, 57, 63, 70, 75, 99, 100, 101, 102, 105, 111, 112, 113, 145, 220 and 235 (numbering

as stood before the Amsterdam amendments) 14

Zapiriou G., „Harmonization of Private Rules between Civil and Common Law Jurisdictions‟, The American

Journal of Comparative Law, 1990, Vol. 38, p.71 15

Hesselink M. W., The New European Private Law, Kluwer, 2002, p. 36 16

Joerges C., op cites p. 385 17

Muller-Graff P.C., „EC Directives as a Means of Private Law Unification‟, op cites p.77 18

Lando O. & Beale H. (eds.), Principles of European Contract Law, Parts I and II, Prepared by the Commission

on European Contract Law, The Hague 2000, p. xxii



2c) Uniformisation or Standardization

Uniformisation or standardization is perfect harmonization. It involves the achievement of

a perfect harmonized law, thus making the law of one legal order identical to that of the

others. With uniformisation, the law of the Member States would be identical but the rules

of law would remain at national level. Perfect harmonization brings uniformisation. While

some authors, such as George Zaphiriou, would prefer to use the same meaning for

uniformisation and unification, for the purposes of this paper a different meaning would be

used for unification as discussed below.19

2d) Unification

Unification can be understood to refer to the instance when a supreme law legislated at a

supranational level, is set to apply in all Member States. Thus with unification, the talk is

no longer about national legal orders but at the European legal order level. Unification

would mean perfect Europeanization. Unification is also used by the said Union when the

need is to have a law operating at Union level to regulate a particular aspect. The legal

instrument used is a Regulation. This makes this tool as one which achieves the most

comprehensive Europeanization under the traditional mode of governance. However it

has no use for the innovative modes of governance. Nevertheless some of the results, such

as that of having the same private laws in substance in the Member States, which can be

achieved by this tool, can also be reached by the previous tool if the innovative mode of

governance is used. With unification one would have the same Regulation in force across

the EU. With uniformisation/standardization one would have the laws of the Member

States identical or similar to one another.

2e) Codification/Consolidation

Codification is a process of collecting and restating the law of a jurisdiction in certain

areas, usually by a subject, possibly forming a legal code. By „law‟ it can be taken to

19

Ibid p.71



mean any legal instrument. Thus the collection of any legal instrument into one

instrument is itself a codification process. Thus it is wrong to associate unification with

codification as it could be applied to any of the previously mentioned tools. For example,

Directive 2004/38/EC could also be described as a codification process of the previous

harmonization directives.20

Here one can perhaps make a slight distinction between

codification and consolidation. The latter involves the freezing of existing legislation into

a consolidated version while the former may see the introduction of new elements in the

consolidation process. Codification can also be understood to be the process of enacting

codes of law such as a civil code. This is maximum codification. In this chapter the use

of the term codification is not restricted to maximum codification but is used simply to

describe the process mentioned in the first part of this paragraph. Therefore codification

falls outside the hierarchal order described in Table 1. Below one can find Table 2 with

the characteristics of codification.

Table 2 Codification/Consolidation

Definition Level of

Integration

Characteristics

Codification/Consolidation A process of

collecting and

restating the

law of a

jurisdiction in

certain areas,

usually by a

subject,

possibly

forming a

legal code

Comprehensive

particularly in a

selected area

-

Comprehensive

- Systematic

- Often one

level of

governance

- Static but can

be changed

20

European Parliament and Council Directive 2004/38/EC of 29 April 2004 on the rights of citizens of the

Union and their family members to move and reside freely within the territory of the Member States amending

Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC,

75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC & 93/96/EEC, OJ L 158 of 30.04.2004

http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=Directive&an_doc=2004&nu_doc=38

http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=en&type_doc=Regulation&an_doc=1968&nu_doc=1612

http://eur-lex.europa.eu/Notice.do?val=4976:cs&lang=fr&list=4976:cs,&pos=1&page=1&nbl=1&pgs=10&hwords=

http://eur-lex.europa.eu/Notice.do?val=11568:cs&lang=fr&list=11568:cs,11535:cs,&pos=1&page=1&nbl=2&pgs=10&hwords=





http://eur-lex.europa.eu/Notice.do?val=161300:cs&lang=fr&list=431687:cs,161300:cs,&pos=2&page=1&nbl=2&pgs=10&hwords=


http://eur-lex.europa.eu/Result.do?T1=V3&T2=1993&T3=96&RechType=RECH_naturel&Submit=Rechercher



3. The role of comparative law in European private law

A comparative approach to European private law using the above mentioned tools is

necessary because legal families and legal systems do not exist in limbo but are

influenced, to varying degrees, by one another. Such influence need not be restricted to

the process of Europeanization of private law as in a globalised world, interaction and

commerce means that legal systems may borrow concepts that may be deemed appropriate

to them from other systems with which they may come into contact. Naturally regional

trade agreements (RTAs) will further encourage this and with an Internal Market such as

the EU, cross-border legal influence in Europe is likely to be on the fast track. Any

possible European private law ius commune, whether codified or fragmented is likely to

draw influence from Europe‟s legal system and therefore comparative law is a good

exercise to demonstrate the methodology of this goal.

A question that sometimes arises is what is the nature of comparative law? Is it a branch

of law or is it a „body of rules‟? The answers are in the negative. Peter de Cruz describes

comparative law as an academic pursuit that has an intellectual activity with law as its

object and comparison as its process.21

Comparison has traditionally focused been on

major legal families. Alan Watson for instance, defines comparative law as „the study of

the relationship between legal systems or between rules of more than one system (...) in

the context of the historical relationship (...) [a study of] the nature of law and the nature

of legal development.‟22

It is therefore a method of study rather than a body of rules.

Modern comparative law draws from a range of disciplines, but is eclectic in its selection.

It recognises the important relationship between law, history, and culture and operates on

the basis that every legal system is a special mixture of the spirit of its people, and is the

product of several intertwining and interacting historical events, which have produced a

distinctive national character and ambiance.

Watson places primary importance on comparative law as the study of the historical

relationship that exists between the legal systems or between rules of more than one

21

de Cruz P., A Modern Approach to Comparative Law, Kluwer, Deventer-Boston, 1993, p. 3 22

Watson A., Legal Transplants An Approach to Comparative Law, Scottish Academic Press, 1974, p. 6-7



system. He suggests three kinds of possible relationships.23

The first is the historical

relationship. Here it is perhaps most important to note that the private law of societies has

nearly always been taken from others, thus tracing the historical background to a given

system of rules usually being insights into the present status of the rule. As far as EPL is

concerned, certainly whatever common history is shared by Europe will be an asset to

consider substantive uniform law. Certainly more than half a century of economic

integration results in a common history, will further add momentum to this goal. Prof.

Rosa Greaves, commenting on the first Advocate General (AG) of the Court of Justice of

the European Union (CJEU), said that „right from the beginning Lagrange chose the

comparative method and recourse to relevant literature as the tools to determine what

principles and rules of law should be incorporated into the Community‟s legal order‟.24

Thus from a study of the AG‟s role in the development of EU it can be proved that in line

with Watson‟s theory comparative law is one of the most important tools to converge legal

orders closer to one another.

Secondly Watson considers the „inner relationship‟. This appears to be based on an

undeniable similarity between peoples or their development and does not really depend on

any actual historical content, but on a spiritual and psychical relationship between two

different types of people, although various forms of „influence‟ may well have been

experienced by them in the course of historical experience. Up to a certain extent, this

may also apply to the process of Europeanization of private law. The Internal Market is

complemented with at least some form of vague political integration, even if at a very

elementary level. This will encourage some form of relationship between the citizens of

the Member States and therefore their private law. However while this argument may

hold for fragmented Europeanization of private law it may not necessarily hold for a fully

flagged Europeanization project. Watson for example points out to the vagueness of this

theory as one of its main problems giving the example of the difficulty in applying the

common law concept of „trust‟ in French civil law.25

Thus comparative law could be one

of the methodologies to study the Europeanization of private law keeping in mind that

limitations exist.

23

de Cruz P., op cites p. 4-5 24

Greaves R. et al, The Advocate General and EC law, Oxford, 2007, p. 60 25

de Cruz P., op cites p. 4



Finally Watson mentions „the same pattern of development theory‟.26

This relationship

has been suggested by commentators who believe that all legal systems in their early

development underwent the same or similar stages of development. While remaining

flexible and open-minded about the possible outcome of a comparative investigation, the

corporatist seeks out those key, distinguishing features of a given society which have a

common denominator and mirror image in other societies in the world. These features are

then organised so as to form a backdrop to the „black-letter‟ law of the particular

jurisdiction, so as to place it within its historical, social, economic and cultural context.

Comparative law could give an insight on how more and to what extent legal integration

of private law could take place. Certainly legal families have their own similarities which

may facilitate the adoption of legal principles from the other family. Watson

controversially argues that a society's laws do not usually develop from within, but are

borrowed from other societies.27

One could agree that comparative law would ease the

borrowing from other societies. However it could also be argued that the Europeanization

of private law is also an opportunity of European law to develop within. Strictly speaking

Watson is referring to the adoption of legal principles from one national legal system to

another. Referring to the subject under evaluation, European private law building goes a

step beyond that. While a unifying private law at European level would encourage the

borrowing from the national legal systems, because such a project may be supported by

the needs of achieving the proper needs of as Internal Market, one should not rule out the

creation of new rules at a European level from within the existing fragmented European

private law.

From the above it can be deduced that the path of comparative law starts as an „Academic

Discipline‟ which may be of interest to academic circles but not necessarily to

practitioners. However the use of comparative law when studying the possible

Europeanization of private law in Europe goes beyond a mere academic study.

Comparative law is also an aid to legislation and Law Reform at both European and

national levels.28

For example, a number of ideas in the German Civil Code are derived

26

Ibid p. 5 27

See Watson A., Legal Transplants An Approach to Comparative Law, Scottish Academic Press, 1974 p. 15 28

See Grossfield P. et al, The Strength and Weakness of Comparative Law, The International and Comparative

Law Quarterly, Vol. 40, No. 1 (Jan., 1991), p. 246-248



from the Swiss Law of Obligations of 1881 and German Civil Procedure drew heavily

from Austrian law. The anti-trust laws of Austria have also inspired German cartel law.29

However the most important use of comparative law for our purpose is that it can serve as

a „Tool of Construction‟ and contribute towards the Unification and Harmonization of

Law. The comparative method has frequently been of practical significance to courts and

the judicial process, in filling gaps in legislation or in case-law, in providing the

background and origin to legal rules and concepts which have been inherited or

transplanted from other jurisdictions. An example of this, at a European level, is the

practice of the CJEU whereby the judges are bound to draw upon their own experience as

lawyers within the Member States. The court seeks to evaluate and possibly utilise

solutions provided by the legal systems from which the judges are drawn. A typical

example would be the fact that the French Administrative Law doctrine of Act Clair might

be followed in order to determine when it is „necessary‟ for a national court to make a

„reference‟ to the CJEU under Article 267 TFEU30

as per the CILFIT judgement.31

Certain key concepts in the comparative law method may be highlighted. The first model

that can be used is the Parent Legal Family and Legal Traditions. The notion of legal

family has served as of the organisational linchpin for the analysis of the legal systems of

the world. Another important concept in Comparative law is the term „sources of law‟.

This can mean different things in different countries, and even in the same country it can

mean different things according to different writers and this may make the analysis

towards the Europeanization of private law more complicated yet more interesting. The

formal sources of law are legislation, codes, judicial decisions, custom, doctrinal or

scholarly writings and equity. Each legal system will have its sources with a particular

hierarchical structure and this issue must be addressed when analysing the possibility

towards achieving a ius commune in European private law. Finally there is the

Comparative Law Method where McDonald argues that „in a world shrinking at an ever-

accelerating rate because of relentless expanding, uniformity-imposing technology, both

opportunity and need for the comparative study of law are unprecedented‟.32

These words

29

Grossfield P., The Strength and Weakness of Comparative Law, Oxford: Clarendon Press, 1990, see Chapter 3 30

Treaty on the Functioning of the European Union 31

CILFIT Srl v. Ministry of Health Case 283/81 [1982] ECR 3415 32

McDonald, „The Comparative Study of Law for Policy Purposes: Value Clarifications an Instrument of

democratic World Order‟ (1952) 1 Am.JCL.24



are still relevant after more than half a century and thus it may be appropriate to proceed

with analysis of the two legal families that make up EPL to try and establish common

denominators and examine the viability that such legal families could be drawn closer

together to achieve the Europeanization of private law.

Various legal traditions or families can be determined including the Common Law

Tradition, the Civil Law System, the Socialist System, and the Islamic Tradition among

many others. However the most common European legal traditions are basically centred

around the first two and for the purposes of this study, the arguments are going to be

restricted to the most important European legal traditions. Zweigert and Kotz33

suggest

that the juristic style should be the crucial test which determines the classification of a

legal system, which they suggest must be ascertained from (i) the historic background and

the development of the system; (ii) its characteristics (typical mode) of thought; (iii) its

distinctive institutions, (iv) the types of legal sources it acknowledges and how they are

employed; and finally (iv) its ideology.

As far as the historical development is concerned de Cruz argues that it was widely

accepted that the English common law development was fairly clear-cut, wherein a large

body of rules founded on unwritten customary law evolved and developed throughout the

centuries with pragmatism, strong monarchs and unwritten constitution.34

On the other

hand non-common law European countries have a more chequered history and this has led

several writers to label the tradition as „Roman-Germanic‟.35

This reflects the strong

influence of Roman level as well as the influence of the French Civil Code, namely the

Code Napoleon and the German Civil Code. The most significant influence is that Roman

law introduced the notions of codification and systematisation of concepts into identifiable

concepts. This is in stark contrast with common law whose principles developed in an ad

hoc fashion mostly in response to dispute settlement. Therefore the significant historical

fact is that common law was developed by the courts, giving judge-made law considerable

„weight‟ whereas civil law was formulated and compiled at universities.

3333

Zweigert K. & Kötz H., ‘An Introduction to Comparative Law’, Vol. 1 Clarendon Press, 1988, p. 20 34

de Cruz P., op cites, p. 30 35

Ibid p. 30



As a generalisation, civil law legal systems tend to think in abstract, conceptual, and

symmetrical terms. They are a rule-based system and constantly seek solutions to a

problem before it reached the court. It also thinks of institutes whereas the English

common law is typical for its concrete, court-based approach seeking pragmatic answers

to issues before the court. Whereas civil law precedes from general to general principles,

common law proceeds from case to case. Common law lawyers think in terms of parties

and their particular legal relationship while civil law lawyers think in terms of the existing

enacted rules, codified or statutory, which may be applied to a given situation. Another

difference which is reflected in the mode of legal thinking is that civil law is planned

systematically and tries to cover everyday situations as much as possible. In contrast

classic common law characteristic is to improvise, examine cases for possible precedents

which may or may not be „binding‟ on the court.

In common law jurisdictions, the typical legal institutions are the trust, agency, tort

principles, consideration and estoppels. In civil law, there is a strong tendency towards

formalism and „rules protecting the moral and economic integrity of the legitimate family

against outsiders‟.36

Besides the distinction legal institutes, one can also refer to the

choice of sources of law. Differences exist with regards to methods of interpretation,

court structures and procedures. However despite the differences there are similarities as

well. Civil law countries, such as France and Germany, have a written constitution unlike

the UK but like the US which is also mainly a common law country. The reasons for

different sources of law are mostly historic. While both common law and civil law courts

use both cases and statutes as sources of law their approach as to the sources, methods and

techniques vary. Such variations may also exist between different legal systems within the

same legal tradition. The Europeanization of private law has to tackle these difficulties as

unified law can still face the difficulty of being interpreted differently thereby jeopardising

the whole project of unifying or harmonizing European private law. Finally attention also

has to be given to the ideology of the legal system. This includes the political, economical

and religious believes that are found in the society governed by the particular system. For

Europeanization, the ideology of the legal system present the least contentious of all the

above criteria as the legal ideologies of the legal systems in Europe are similar in scope.

36

See Zweigert K. & Kötz H., ‘An Introduction to Comparative Law’ Vol. 1 Clarendon Press, 1988, p. 22



While keeping into account the major differences between the legal families, one also has

to be aware that there are certain pitfalls in comparison even between the legal systems

that form part of the same legal tradition. These include (i) Linguistic and terminological

perspectives; (ii) Cultural differences between legal systems; (iii) The potentiality of

arbitrariness in selection of objects of study; (iv) The desire to see a common legal pattern

in legal systems-the theory of a general pattern of development; (v) The desire to see a

common legal pattern in legal systems - the theory of a general pattern of development;

(vi) The tendency to impose one‟s own (native) legal conceptions and expectations on the

systems being compared; (vii) Dangers of exclusion/ignorance of extra-legal rules. From

the above, when contemplating a process of Europeanization of private law, one of the

most difficult pitfalls is the linguistic barrier. Legal terminology is fraught with linguistic

traps and is a potential minefield of misunderstanding. Meanings vary from country to

country. For example in English-speaking countries, homonyms may have different

meanings and so even if the basic legal concepts are similar, different terms may be

utilised so as to create an impression of divergence and this may occur within the same

legal family. Conversely, although the terms used may be identical, their substantive

content or actual application may be quite different.37

Such pitfalls have to be well

addressed if the Europeanization is to be successful.

4. The emergence of European private law

Although EU law is a sui generis legal order, one would be mistaken to simply compare it

with any other national legal order. First although it is a separate legal order from that of

the Member States, it cannot exist without the Member States‟ legal order. Secondly its

development is limited by Community/Union competence. This is because the EU legal

order is a supranational legal order that exists side by side the national legal order of the

Member States forming part of the supranational organisation and its development is

limited to the extent permitted by the founding treaties. Thus while one can examine

whether it may be closer to one of the legal traditions than the other, one has to keep in

mind that the EU legal order is not similar to the traditional legal orders of national states.

37

See de Cruz P., op cites, p. 35



In fact most of the areas usually associated with private law such as family or property

law, are not found in EU law.

Nevertheless, the fact that the EU is composed of legal orders from both legal traditions

means that EU law draws its inspiration from different legal traditions and therefore EU

tends to be more of a mixed legal tradition in image. When the EEC, now EU was

originally established by the Treaty of Rome in 1957, the six founding members were

mainly from the Civil Law Tradition. Thus if one were to analyse the administrative and

institutional law set up in the EU, one could come to the conclusion that in the early stages

of Community law, it followed more closely the civil law tradition. For example this can

be seen in the way the European Court of Justice was organised. The same can be said

with regards to private law legal instruments such as the First Company Directive.38

However with the accession of common law Member States in 1973, common law

influence started creeping in. For example, in the field of private law, subsequent company

law directives were influenced by common law principles such as the Second Company

Law Directive.39

Thus one can say that European law is more developing on the lines of a

mixed system.

It is essential for the formation of a mixed legal system that not only legal scholars engage

in comparative law research, but also that the courts are prepared to draw inspiration from

different legal systems when settling a dispute. Inspiration is primarily drawn from

another legal system when one‟s own legal system does not regulate an issue or it does so

incompletely or ambiguously. The competition of legal rules does not only lead to an

elimination of rules of inferior quality, but can also supplement existing rules. Also just

as essential as the role of the courts is the importance of legal science. The mixed systems

mainly evolved as a result of the interaction between the courts and legal science, between

cases and systematising principles. A large role for systematisation also appears to be the

way to keep the masses of cases from the Member States of the EU manageable.

38

First Council Directive 68/151/EEC of March 9, 1968 on the coordination of safeguards which, for the

protection of the interests of members and others, are required by Member States of companies within the

meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent

throughout the Community, OJ 1968 L65/8 39 Second Council Directive 77/91/EEC of December 13, 1976 on coordination of safeguards which, for the

protection of the interests of members and others, are required by Member states of companies within the

meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited

companies and the maintenance and alteration of their capital, with a view to making such safeguards

equivalent, OJ 1977 L26/1



Therefore EU law is drawing inspiration from both legal traditions. However it is also

likely that the process of Europeanization is in itself innovative and will contribute to

establish a European identity.

If a full scale project of EPL is to materialise, account has to be taken of both macro-

comparison and micro-comparison. The former refers to the study of two or more entire

legal systems while the latter refers to the study of topics or aspects of two or more legal

systems. Zweigert & Kotz also suggest the test of functionality.40

They argue that every

investigation in comparative law begins with the posing of a question or the setting of a

working hypothesis in brief. They emphasise that the basic methodological principle of all

comparative law is that of functionality and that the legal system of every society faces the

same problems and solves the problems by quite different means though very often with

similar results. This will help to bridge the gap between civil and common law and also

between the legal systems of the same legal tradition themselves.

Kamba has suggested that there are three main stages involved in the process of

comparison:41

(a) The descriptive phase: this may involve describing the norms, concepts

and institutions of the system concerned; (b) The identification phase: identifying

differences and similarities between the system being compared; (c) The explanatory

phase: accounting for the resemblances and dissimilarities between systems and concepts.

This three-stage approach methodology though useful appears to be simplistic but it can be

used later to analyse the viability of a unified substantive private law in certain selected

files. The three stage approach can be divided into the following points as shown in the

Table below:

Table 3 Kamba’s three main stages in the process of comparison

Phase 1 Identification of the precise problem.

Phase 2 Establishing the primary sources that

can be needed. This may involve the

40

For further discussion see K. Zweigert & H. Kötz op cites, p. 208 41

Kamba W. J., Comparative Law: A Theoretical Framework‟ (1974) ICQL 485



examination of the code/statute, any

commentary about it as well as any

judicial decisions on the law.

The gathering and assembly of the

material. This should include primary

and secondary sources of law.

The organisation of the material in

accordance with the legal philosophy

and ideology of the legal system being

compared. This may also include the

hierarchy of sources.

The mapping out of possible answers to

the problem, comparing the different

approaches, noting possible cultural

differences, different legal

interpretations, socio-economic factors

and any non-legal factors. The question

of how the rule really operates should

be posed throughout the investigation.

Phase 3 This would involve a critical analysis of

the legal principles in terms of their

intrinsic value rather than with any

perceived expectation.

This would include conclusion in a

balanced manner

As with comparative studies, each successful investigation marks the end of an enquiry

but it should also mark the beginning of a fresh outlook on the operation of legal systems,



institutions and doctrines. The above arguments attempt to show how legal systems within

different legal traditions can be approached with the aim of developing an EPL. While the

above proves that bringing different laws closer and even achieving some degree of

uniformity is possible, it does not identify which laws can be unified or approximated

successfully. Also the success or failure of such comparative exercise and legal

transplants depend on what field of private law is under review. This brings the argument

as to which method is best suited for specific fields of private law.

It is generally acknowledged that Comparative law plays a decisive role in the

construction of European private law particularly through the harmonization of contract

law. Klaus Peter Berger, referring to Dölle, says that the economic and political

integration of Europe must be supported and accompanied by a gradual approximation and

finally unification of the domestic legal systems in Europe.42

Comparative law and a

profound connoisseur of foreign law are very important to assist in the bridging of

different legal orders through a sound and sensible combination of existing domestic

differences instead of a soulless and authoritarian uniform solution. The rise of

comparative law from a new and allegedly impractical branch of legal methodology at the

beginning of last century, to a catalyst for the development of European private law at the

outset of this century, is reflected in the practice of various international tribunals, the

courts of EU Member States as well as the law-making of domestic legislators in the EU

as the driving force of European integration. International arbitral tribunals, by their very

nature, have always adopted a comparative and intercultural approach to decision-making.

This has been aided by the publication of the UNIDROIT principles43

and the Lando

principles.44

The practice of domestic courts in Europe in the past years also reveals a

change of attitude towards the concept of Comparative law as the traditional resentments

of domestic judgements vis-à-vis the comparative methodology are beginning to

disappear. This is a natural development and a study of the possible tools that can be used

to bridge the different legal orders, including harmonization or unification owes its

beginning to the effect comparative law has on domestic law.

42

Berger K. P., „Harmonisation of European Contract Law - the Influence of Comparative Law‟, International

and Comparative Law Quarterly Vol. 50, October 2001, p. 877-900 at p. 877 43

UNIDROIT (ed.), UNIDROIT Principles for International Commercial Contracts (1994) 44

Principles of European Contract Law (PECL) see Lando & Beale (eds.), Principles of European Contract

Law, Parts I and II (2000), at 1 et seq.



A practical example of bridging different legal orders to one‟s own is through the

application of comparative law by the notion of the „internationally useful construction of

domestic law‟.45

This involves having a local judge or a local legislator dealing with

domestic law, referring to a foreign law either to aid in interpretation or to help construct

new law. This inevitably involves a comparative exercise between the foreign law seeking

to be integrated and the local law to which the new foreign concept is going to be applied.

The end result would be that the domestic law would be closer to the foreign law concept

adopted. Soft-law initiatives such as the Principles of European Contract Law (PECL)

will aid this further.46

The choice of the „correct‟ method of interpretation in an individual

case is always based on a teleological evaluation of the possible results with a view to

ensuring the acceptability of the solution within a given legal order. The domestic judge

or international arbitrator who applies a certain domestic law may therefore use his

discretion to strive towards an internationally useful interpretation of the law.47

The above shows that the first attempts towards the Europeanization of private law occur

at the grass root level of a legal system. It takes place voluntarily and very often due to

economic reasons. The Europeanization itself may not necessarily be a goal in itself. The

success or otherwise of this informal methodology depends on how receptive the

particular legal system is. The probability is that this is more likely to happen in mixed

systems. If such a process is further aided by international soft-law measures or

Restatements, this proves that ready-made comparative reference points for an

internationally useful construction of domestic law are indeed steps that contribute

towards the bridging of different legal orders. Their use as a standard reference point and

their time-saving effect as a means to substitute profound comparative analysis depend on

the comparative persuasiveness of every single rule or principle contained in the

Restatement. This aspect is even more relevant where the drafters of these Restatements

have not merely selected the best solution from the legal system to which comparison has

been made but have „invented‟ new rules.48

45

See for this concept Berger K., The Creeping Codification of the Lex mercatoria (1999) at p. 83 46

See Lando O., “Principles of European Contract Law”, (1992), 56.RabelsZ, p. 265 47

Sammut I., „Tying the Knot in European Private Law‟, (2009) 17.European Review of Private Law, p. 813-

840 48

Berger K. P., „Harmonisation of European Contract Law - the Influence of Comparative Law‟, International

and Comparative Law Quarterly Vol.50, October 2001, p. 882



To introduce legal transplants, reference can be made to Watson‟s book devoted to legal

transplants which elucidates his understanding of the rule.49

He refers to a statement by a

former Scottish Law Commissioner. Watson explains that endeavours to achieve unified

solutions in the field of Contract law have in particular revealed what has been assumed to

be common ground was approached by members of the Scottish and English Contracts

Terms through conceptually opposed habits of thought. Whereas English comparative

research relied particularly on American and Commonwealth sources, the background of

some Scottish proposals derived from French, Greek, Italian and Netherlands sources –

and from the Ethiopian Civil Code, which was, of course, drafted by a distinguished

French comparative lawyer.‟ In his own words he says:50

„Now this, to me, is rather too academic. If the rules of contract law of the two

countries are already similar (as they are) it should be no obstacle to their unification

or harmonization that the legal principles involved come ultimately from different

sources, or that the habits of thought of the commission teams are rather different. It

is scholarly law reformers who are deeply troubled by historical facts and habits of

thought. Commercial lawyers and businessmen in Scotland and England do not in

general perceive differences in habits of thought, but only – and often irritation –

differences in rules.‟

Thus, laws are rules and only that, and rules are bare propositional statements and only

that. It is these rules which travel across jurisdictions, which are displaced, which are

transplanted. Because rules are not socially connected in any meaningful way, differences

in „historical factors and habits of thought‟ do not limit or qualify their transplantability.

Alan Watson is at the forefront of those who argue in favour of the success of transplants

whose success can be measured by what they achieve, that is uniformity. The aim is to

establish a new private law for Europe and the main role for Comparative law is in

supplying an answer as to how to establish this. Watson supported by Smits argues that

the claim that uniformity can be achieved in an organic bottom-up way by the competition

of legal rules, transplanting rules through a „market of legal culture‟, for which national

49

Ibid p. 96-97 50

Ibid p. 96-97



courts would be responsible.51

Others such as Pierre Legrand disagree and argue that this

stance is simplistic and provides an inadequate explanation of interactions across

jurisdictions – the result of an impoverished apprehension of what law is and of what rule

is. Legrand argues that rules are just not what they are being represented by Watson and

Smits.52

He argues that because of what they effectively are, rules cannot travel so he

concludes that legal transplants are impossible.

While getting completely immersed into this debate at this point is outside the scope of

this paper, it is a fact that if one were to accept Legrand‟s thesis as a fait accompli, then

there is no reason why to continue exploring the Europeanization of private law. Thus

while accepting that some of Legrand‟s thoughts are relevant for this study and will be

developed subsequently, at this stage it has to be observed that Smits and Watson are

probable right with reservations as regards legal transplants which are important

ingredients to achieve closer Europeanization. So while transplants do contribute towards

uniformity, their use would be more promising for a future ius commune if national courts

are allowed to choose more suitable rules. However, diversity of law will remain in

Europe and any centralist imposition will in itself include diversity. Mixed legal systems

present a mix of national mentality and European uniformity. Transplants have been more

successful in the contract law field than in the law of property. This may be one of the

reasons why there is more uniformity in the former as opposed to the latter. The

acceptance of trust-like arrangements in civil law countries in recent years is another

example.53

It also has to be said that the transplant of trust could also be given as an

example of an unsuccessful transplant as the institution of trust changed while it moved to

civil law.54

However this proves that transplants need not necessarily be a 100%

transplant, they can also evolve into something different. However concepts would still

have been borrowed so legal systems can „learn‟ from each other.

The above proves that legal transplantation with its successes and failures could be

considered as a promising methodological way of establishing a Europeanized private law.

51

Smits J., „On Successful Legal Transplants in a Future Ius Commune Europaeum from Harding A. et al (ed.),

Comparative Law in the 21st Century Kluwer, 2002, p. 137

52 Legrand P., What are Legal Transplants? from Nelken D. et al (ed.) Adapting Legal Cultures Oxford 2001, p.

55 53

Smits J., „On Successful Legal Transplants in a Future Ius Commune Europaeum from Harding A. et al (ed.)

op cites p. 148-150 54

Ibid p. 148-150



This brings up the question whether the emerging EPL is civil law, common law or sui

generis. Whatever tools one chooses to bridge the legal orders and arrive at some form of

Europeanization of private law, comparative law with its multiplicity of different ways and

methods plays a very important role. One can make reference to Karhu‟s method on the

basic distinction that can be made between whether the focal area contains norms which

are valid law and whether norms are evolving using the notions of de lege lata and de lege

ferenda. 55

This is explained in the table below:

Table 3 Karhu’s method

Legal system B: de lege

lata

Legal system B: de lege

ferenda

Legal system A:

de lege lata

de lege lata / de lege lata

(1)

de lege lata / de lege

ferenda (3)

Legal system A:

de lege ferenda

de lege ferenda / de lege

lata (2)

de lege ferenda / de lege

ferenda (4)

De lege lata / de lege lata (1)

This is the most typical situation where two legal systems are compared in areas where the

norms regulating the focal area are both valid in the systems in question. The comparison

is to be founded on norms forming part of valid law in both systems.

De lege ferenda / de lege lata (2)

This situation can be used as a means for recognising possibilities for change in one‟s own

valid law. This could be done by looking for the de lege ferenda solutions for one‟s own

systems by analysing the lege lata solutions of another legal system. Since one is dealing

with something already in force in another legal system, the principle question on the very

possibility of such a normative solution should not arise at all.

55

Kahu Juha, „How to make Comparable Things: Legal Engineering at the service of Comparative law‟ in Van

Hoecke (ed.), Epistemology & Methodology of Comparative Law , Hart Publishing, Oxford, 2004, p.80



De lege lata / de lege ferenda (3)56

Comparative law can be characterized with reference to possible consequentalist

arguments when reasoning on the basis of one‟s own valid law. Integration between

different legal systems can be achieved not only by common legislation but also by other

similarities.

De lege ferenda /de lege ferenda (4)

This possibility is to compare the reform plans in two countries. This can be done on the

basis of the contents of the reform plans and it would be similar to a comparison of valid

laws. However in this example only proposed laws are subject to comparison.57

As the tools using comparative law can contribute towards the Europeanization of private

law, it is worth observing that a modern legal system‟s unity of law is changing both from

within, through lobbying as an example, as well as from outside including the processes of

Europeanization and globalization.58

With the prospect of the emergence of a European

methodology, it is important to emphasize this self-transformation of the nature of the

state and the weakening of the paradigm of the unity of the legal system, which initially

had little to do with Europe and more to do with technology and the economy. This

assumption also has an impact on the methodological development. In the debate on the

Europeanization of private law in Europe, reference is to be made to the need to respect

the „cultural identity‟ of states and their law.59

This concept is often invoked against

European law. It is said that the law‟s cultural ties are so strong that more far reaching

Europeanization in particular the production of civil codes, de facto has narrow limits and

so does not allow much room for further Europeanization.60

Many authors take the

opposite view, namely that there is an unwritten implicit common core of European legal

culture which would allow the taking of further steps towards a pan-European positive

56

Kahu Juha, „How to make Comparable Things: Legal Engineering at the service of Comparative law‟ in Van

Hoecke (ed.), Epistemology & Methodology of Comparative Law , Hart Publishing, Oxford, 2004, p.81 57

Ibid p. 81 58

Heiz Ladeur K., „Methodology and European Law – Can Methodology Change so as to Cope with the

Multiplicity of the Law?‟ in Van Hoecke (ed.,) Epistemology & Methodology of Comparative Law , Hart

Publishing, Oxford, 2004, p. 95 59

Van Hoecke M., „The Harmonisation of Private Law in Europe: Some Misunderstandings‟ in M. Van Hoecke

& F. Ost (eds.), The Harmonisation of European Private Law, (Oxford 2000), p.1 60

Legrand P., „Against a European Civil Code‟, Modern Law Review 1997, 10



law.61

This assumption is based on a set of common ideas which remain hidden behind

the differentiation of the legal evolution in Member States. It could be explained in a

functionalist way with reference to a shared logic of economic, social, technological and

cultural transformation.62

5. The Draft Common Frame of Reference (DCFR)

As it has been stated in the Introduction of this paper the process of Europeanization of

private law in the EU has been on going over the last half century. Europeanization has

proceeded via the formal Community Method via Regulations and Directives in a

fragmented way as it resulted in numerous legal instruments about various fields of law. It

has proceeded through comparative law as discussed in the previous two sections of this

paper between the Member States in their own right. It has also proceeded via the

informal way through the works of academic initiatives such as the EPCL via the Lando

Commission.63

The Principles of European contract law, drafted by the Lando

Commission setup in 1982, pursue a similar objective to the UNIDROIT Principles.64

Their intention is to contribute to the evolution of a new European „ius commune’.65

The

main objective of the Commission was the drafting of a set of general principles of

contract law in the countries of the Community and thereby preparing a systematic

harmonization of contract law in the Member States.66

A second Commission was set up

in 1992 to cover also the aspects of formation, interpretation, contents, effects and validity

of contract law.67

A third Commission commenced in 1997 to draft rules that are common

to contracts, torts and unjust enrichment.68

The academic success of the EPCL eventually

led to the DCFR in 2008 and the DCFR serves as a very good laboratory to test the

theories mentioned in the previous sections of this paper.

61

Teubner G., Legal Irritants: „Good Faith in British Law or How Unifying Law Ends up in New Divergences‟,

Modern Law Review 1998, 11 62

Sammut I., „Tying the Knot in European Private Law‟, (2009) 17.European Review of Private Law, p.813-840 63

See Lando O., “Principles of European Contract Law”, (1992), 56.RabelsZ, p.265 64

Hartkamp A., “The UNIDROIT Principles for International Commercial Contracts and the Principles of

European Contract Law”, 2.ERPL, p.342 65

See Van Rossun M., “The Principles of European Contract Law, A Review Essay”, (1996), 3.MJ. p.69-87 66

See Lando O., “Principles of European Contract Law”, (1992), 56.RabelsZ, p.265 67

Lando O. & Beale H. (ed.), Principles of European Contract Law, Parts I & II, Combined & Revised, Kluwer

Law International, 2000 68

See Lopes Rodriguez A.M., op cites. p. 187



Following the Communication on European Contract Law69

the European Commission

adopted a further Communication in February 2003 entitled “A More Coherent European

Contract Law – An Action Plan”.70

This is considered to be a further step in the ongoing

discussion on developments in European Contract Law. One of the key measures proposed

in the Action Plan is the elaboration of a Common Frame of Reference (CFR). In order to

increase coherence in the contract law acquis, the CFR should provide a common

terminology (e.g. contract, damages) and rules (e.g. non-performance of contracts). The

CFR serves two different aims: (a) It should serve as a tool for the improvement of the

acquis. The addressee of this tool is in the first place the European Institutions, above all

the Commission, in order to increase the quality of drafting provisions. (b) It could be the

basis for the so-called optional instrument on European Contract Law. Meetings involving

various stake holders, academics and Commission officials started in late 2004 and by

2008 the DCFR as the result of CFR‟s work has finally appeared.71

While the CFR and the DCFR do contribute to the debate towards a possible achievement

of a European Civil Code, their success cannot be limited solely to this aim. In fact they

provide a good opportunity to analyse the challenges to EPL without the need of having

the code as the ultimate target. One of the first questions that may be made about the

DCFR is about which fields of law are included. This is answered by the first Article of

the DCFR which states that: „The rules are intended to be used primarily in relation to

contractual and non-contractual rights and obligations and related property law matters‟.72

This is a relatively wide field of law even if one limits it to the areas named explicitly and

disregards the word „primarily‟. Potentially this could include even company and capital

market law. The draft DCFR contains seven books, and an eighth, ninth and perhaps tenth

may be added.73

These are as follows:

1. General Provisions;

2. (General Part on) Contracts and other Juridical Acts;

3. Obligations and corresponding rights;

4. Specific contracts…;

69

COM (2001) 398 final 70

COM (2003) 68 final 71

http://www.sgecc.net 72

Article I-I:101 para.1 of the DCFR 73

Grundmann S., „The Structure of the DCFR – Which Approach for Today‟s Contract Law‟, European Review

of Contract Law (ERCL), Vol. 4 (2008) No3., p.225-247 at p.228



5. Benevolent intervention in another‟s affairs;

6. Non-contractual liability (arising namely from torts);

7. Unjustified enrichment, and;

8. It is clear from the statements made by members of the Study Group and from Article I-I:

101 para.1 that an eighth book on (some or most) property law is intended to be added.

9. Security rights in movables (not yet published);

10. Trusts (not yet published);74

Professor Grundmann observes that if one changes the order between books 6 and 7, it is

evident that this is exactly the order adopted by the German Civil Code (first three

books).75

The prominence of the concept of the „juridical act‟ which is an invention of the

drafters of the German Civil Code which has now found its way even into the title of book

2 of the DCFR - and the inclusion of a specific book on benevolent intervention strongly

add to this impression.76

However irrespective of how Germanic the DCFR may look, the

core question is how much it really adds to the development of a good contract law to draft

such a big Code, and what are its advantages. If contract law is the vehicle to promote

harmonization of fields where harmonization would not be justified on their own merits,

imperative reasons should be shown to combine the fields nevertheless.

Analysing the DCFR it can be concluded that it has all the characteristics of a typical

European compromise.77

Ideological and esthetical pursuits will certainly be disappointed.

In this respect, it has much in common with the Constitution Treaty. This is not

necessarily something to be worried about as a DCFR is not made for esthetical or

ideological reasons. It is meant to provide some normative guidance in the further

development of European contract law. European citizens are likely to have different

interests, preferences and opinions in relation to the subject dealt with in the DCFR. A

DCFR consistently based on only one of such conception would inevitably disappoint

those citizens who have different ideas. Professor Hesselink concludes that if one really

74

See Smits J.M. „The Draft Common Frame of Reference: how to improve it?‟ in Micklitz H. W. & Cafaggi,

F., European private law after the common frame of reference, E. Elgar, March 2010, p.91 75

Grundmann S., „The Structure of the DCFR – Which Approach for Today‟s Contract Law‟, European Review

of Contract Law (ERCL), Vol. 4 (2008) No3., p.225-247 at p.228 76

Grundmann S., Grand European Code Napoléon or Concise Contract Law? Defining the Scope of a CFR‟ in

Somma A., The Politics of the Draft CFR, Woutlers Kluwer, 2009, p. 19 77

Hesselink M., Common Frame of Reference & Social Justice, European Review of Contract Law (ERCL),

Vol. 4 (2008) No. 3, p.248-269 at p. 268



wants further Europeanization of private law one has to accept that it will probably look

different from both the particular Member State law that one would be used to and his

personal ideas of social justice.78

The publication of the interim outline edition of the

DCFR, which is the result of collaboration between hundreds of legal scholars from all the

Member States, has brought the message home.

Any attempt to redraft the present EPL should take into account the already existing rules.

Codification at the national level is often associated with starting afresh and abolishing all

the „old‟ law but this cannot be the case for the EU. In this sense it seems that the present

DCFR is far removed from the sector-specific and fragmentary European acquis. The

primary motive for the project was the Commission‟s desire to revise the existing

European directives in the field of private law with a view to dealing with their

fragmentary, inconsistent and not so effective character. If one judges the DCFR on the

basis of this desire, some of the proposed provisions will lead to improvement. However

most of the provisions do not relate to the existing acquis at all. The drafters realise this by

presenting an „academic CFR‟ as a scholarly text that is not politically legitimised and that

at best could form the basis for a „political CFR‟ to be drafted by the European

Commission.79

In the nation state, law is usually seen to consist of authoritative rules backed by coercive

force that is exercised by legitimately constituted democratic institutions. The way in

which law is usually represented matches these characteristics.80

The question is whether

law beyond the nation state should be represented in the same way in particular when as in

the case with the DCFR the aim of the provisions is not to directly influence the conduct

of private parties and to enforce, but to be primarily a source of inspiration. A national

civil code needs to be presented in a different way than a set of rules that should help to

improve the existing acquis, should inspire legislators and courts across Europe or to play

a role in legal science and teaching.

When it comes to revising the exiting acquis, the right approach is to build directly upon

the existing directives making them more coherent and adding some concrete definitions.

78

Ibid p. 268 79

See Smits J. M., „The Draft-Common Frame of Reference, Methodological Nationalism and the Way

Forward, European Review of Contract Law (ERCL), Vol. 4 (2008) No. 3, p. 270-280 at p. 276 80

See Morgan B. & Young K., An Introduction to Law and Regulation (Cambridge, CUP), 2007 p. 303-304



This part of the EPL system will mostly resemble national provisions. But in the absence

of a single EPL society, in which there is a common understanding of the meaning of

specific provision, it may be too early to draft provisions in other areas of private law.

Therefore Europeanization should start with the emergence of a common European legal

tradition, for which teaching and legal scholarship are far more important than the drafting

of specific rules. Such teaching and scholarship should indeed be focused on finding

common arguments in European jurisdictions, thus allowing for a competition of legal

ideas.81

Finally, when creating an optional code, another perspective may have to be

adopted. As such codes will have to compete with the national jurisdiction. Their

provisions should certainly not be common denominators of existing national legal

systems but should contain the rules that make this code a good competitor on the market

of legal rules. It is the function of the rules in question that decides how they should be

drafted.82

While the European Commission has taken forward the results of the DCFR relatively

slowly and till the end of 2012 the only two major steps that resulted from it are the Green

Paper on policy options for progress towards a European Contract Law for consumers and

business83

and the Proposal on a Common European Sales law,84

the actual academic

success of the DCFR cannot be measured by how the Commission makes use of it but can

be measured by what it has achieved in its own right as a potential standalone legal

instrument bridging the legal families of the EU Member States with the possibility of

actually working as a day to day law if one were to ignore the political resistance it may

receive from some quarters. Such a comprehensive potential standalone legal instrument

as a „toolbox‟ would not have seen the light of the day and gain any form of acceptance

without comparative law. Recognizing diversity of private law across the multi-level

architecture of the EU remains an observable fact, yet the DCFR nevertheless creates a

common private law language against which national practices can be compared and

evaluated, hence proving the essential role of comparative law in such a project.85

81

Smitis J. M., „A European Private Law as a Mixed Legal System‟, Maastricht Law Journal of European and

Comparative Law 5 (1998) p. 328 82

Smitis J. M., The Draft-Common Frame of Reference, Methodological Nationalism and the Way Forward,

European Review of Contract Law (ERCL), Vol. 4 (2008) No3, p. 270-280 at p. 280 83

COM (2010) 348 final 84

SEC (2011) 1165 final 85

See Miller L. „The Emergence of EU Contract law – Exploring Europeanization,‟, OUP, 2012, p. 205



6. Conclusion

In the present day European Union, the basic nineteenth-century situation where each

nation state had its own legal system still prevails. On the continent the codes have

survived and the nation states are still strong. There does not appear to credible signs that

the peoples of Europe wish otherwise. R. C. van Caenegem speaks of „one nation, one

state, one code of law‟.86

The same holds true in the Anglo-Saxon world, where the

uncodified English law hold on England and Wales is still very powerful and prefer to

adapt and evolve to the modern needs in its own way. While the Methodological Tools

contribute towards the approximation or unification of law as the legal traditions are not in

a limbo, an issue that remains to be discussed is what form ought the harmonized or

unified law. Should it be built upon a codified system or should it be built around the

common law format? The answer to this question could be influenced by which tool is

actually used. Harmonization, even if comprehensive, does not lead to a unified system of

law so the nation state law is preserved as it is, at least in form.

Unification of law could perhaps tip the balance towards a form of private law at European

level and therefore a departure from the nation state private law. Probably the form most

likely to be followed would be similar to that in mixed jurisdictions whereby codes may

exist but they may not necessarily be exhaustive. Fragmentation can still occur. If one

were to follow the example of a mixed jurisdiction, the likelihood is that a unified

European private law would be classified in a similar fashion as civil law system but with

some exceptions. Thus one may be able to speak of a European law of obligations but not

necessarily a European law of property as different substantive areas may evolve in a

different way and at a different pace.87

Furthermore it is likely that unification itself can

lead to fragmentation as Member States may feel happy to move on in one field of law but

not in another.88

While charting the path of how and to what extent EPL can develop may

be difficult and debatable, it is an acceptable statement of fact that EU measures,

particularly in the field of judicial cooperation in civil and commercial matters, contribute

86

van Caengem R. C., European Law in the Past and the Future, Cambridge, 2002, p. 22 87

See Dalhuisen J., Dalhuisen on International Commercial, Financial and Trade Law, Hart Publishing, Oxford,

2004, p. 90 88

Kötz H., “Private International Law: A „Soft‟ alternative to the Harmonisation of Private Law?”, 3.ERPL

(1995) p. 329



towards achieving a form of Europeanized private law across the Union even if the

achievement of a civil code may appear to be a long-shot. Comparative law while not a

tool in itself is still very important to study irrespective of which path the development of

EPL takes. Further to this, the fact that EPL‟s development is not in a vacuum but in a

regional/global context further necessitates the use of comparative law within the global

stage. Comparative law as such is not restricted to the EU and through the comparative

analysis one can study as to what extent and how can legal families influence one another.

Hence without the science of the process of comparative law at EU level one cannot talk

of any form of European private law.

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Documents

european contract law

european law publishers

common private law

roman law

law of persons

fields of law

law of succession

convergence of private