Symposium ‘The Process of Approximation of Domestic law to the Law of the European Union – an Opportunity and a Challenge for the States of Central and Eastern Europe

Perspectives for the Development of a European Civil Law

Arthur Hartkamp*

Contents

I Introduction

II Currents in the development of a European Private Law

A Binding legislative rules

B Case law

C ‘Soft Law’

D Scientific/educational projects

III Concluding remarks

I Introduction

1) In the decade which now draws to a close a new field of legal studies has come into existence : European Private Law. The leading questions of this new movement are whether it is desirable and feasible to create a common private law for Europe. And if so: how should it be done? Should we start working on a European Civil Code? Which subjects should be dealt with? Should the European Law Faculties be restructured so that they could offer their students an education in European law? What new materials should be developed both for teaching purposes and in order to serve as scientific groundwork for the possible future unification efforts?

A formal starting point for these developments (at least as far as the codification issue is concerned) is the Resolution adopted by the European Parliament in 1989 which encouraged the European Commission to take up work in order to create a European Code of Private Law. The Parliament called as a first step for the creation of a preparatory commission composed of accomplished European scholars, which should single out topics fit for unification and suggest a time schedule in which those topics should be considered.

Another important trigger was the almost simultaneous publication of the UNIDROIT Principles for International Commercial Contracts and the Lando Group’s Principles of European Contract Law. These events in combination with some international conferences and with the publication of several important scholarly works and reviews (to which I shall return infra, section 9) made it clear that something important had changed in the legal world. European private law is in the air.

2) The developments must be seen against the background of a European Union in full swing: the Single Act in 1987, the completion of the internal market in 1993, the preparations for the single European currency in the rest of the decade. Moreover, directives of the European Council, until recently restricted to the outer fringes of private law, now began to go to the heart of contract law and tort law: product liability, unfair contract terms, the law of sale. At this point it has become very clear that the European Union is not merely concerned with economic and administrative law, but that also private law is affected.

Even so, the private law directives are still relatively little islands in an ocean of private law. They have not contributed much to the unification of private law.⁾This is due in the first place to the fact that they leave the implementation in the national legal systems to the national legislators, which may easily lead to differences in spite of their supranational origin. Secondly, the topics chosen are scattered throughout private law, such as contracts negotiated away from business premises, consumer credits contracts, package travel contracts. Only recently have there been directives issued in more general areas of contract and tort law, such as product liability and unfair terms in consumer contracts. Thirdly, nearly all directives in these general areas are dealing with consumer law, which certainly is an important field of the law, but which does not necessarily reflect the values and concepts of private law at large; in some countries it is persistently argued that it does not and for this or other reasons the relative legislative measures are not integrated in the national civil codes. And finally, since a common legal background is lacking, the conceptual framework and the terminology of the directives are uncertain and they do not present themselves as parts of an integrated legal system.

For those reasons, even if directives were to gain more importance that would not diminish the necessity of elaborating common principles or rules of private law. Indeed, according to many observers this already flows from the principle of the internal market, which provides for a free movement of persons, capital, goods and services. In this view, diversity of law per se constitutes an obstacle to the achievement of that goal. It is the aim of the European Communities to abolish restrictions on the intra-Community trade. It follows from this objective that the differences in the law which restrict such trade should also be abolished. When dealing in another European country, the businessman will often feel the same frustration as did Voltaire when he travelled in France, where as he said, the laws changed every time he changed horses.⁾ Unifying only little islands in private law is not a satisfactory solution.

II Currents in the development of a European Private Law

3) This paper will not provide a survey of arguments pro and contra the elaboration of a European Civil Code. As the title of this paper indicates, there is more about European private law than 'just' the question of a Civil Code. The ongoing Europeanisation of private law is a fact of life, and it is submitted that this is quite natural in the light of what is happening in European politics and economy. For that reason, this paper will discuss the various actors and currents in the actual development of a European private law. They may be distinguished in four categories: binding legislative rules, case law, ‘soft law’ and scientific/educational projects.

A Binding legislative rules.

4) Here we may think of the Treaty of the European Community, directives of the European Council and Conventions concluded between the Member States of the Union. As stated before, directives generally are not a very important – and in any case not a coherent – source of private law, but they are important in some areas, esp. consumer law, company law and labour law. The only private law topic directly covered by the EEC Treaty is the prohibition of cartels (art. 85 ff). Specific Conventions have been concluded on jurisdiction and the enforcement of judgments and on the law applicable to contractual obligations.

If we are prepared to extend the concept of European Private Law to instruments drawn up outside the framework of the European Union, we may also direct our attention to succesful international private law conventions, of which the prime example is the United Nations Convention for the International Sale of Goods (CISG, 1980). This Convention has been ratified by some fifty states all over the World, including e.g. the USA, Russia, China and all but three member states of the European Union. CISG has exercised much influence on the Principles (to which I shall return infra, section 6) and on the national sales laws of a number of states; and it will certainly continue to do so where the emerging legal order of the European Union is concerned.

B Case law

5) As long as there is little private law legislation in Europe, the role of the European Court of Justice in developing European private law will be moderate as well. Some general principles of law which have been developed in administrative and economic law, such as abuse of rights and proportionality, may also exert their influence in private law situations, but such general principles have little unifying force. More is to be expected, however, in the law of torts where the court is empowered by art 215 of the EEC Treaty to extract general principles of tort law from the various national legal systems and has used these rules in creating liability of Member States for breaches of Community law (e.g. for not or incorrectly implementing EU directives). The court is now expected to proceed along this line by imposing liability on individuals and companies for breach of the obligations resulting from articles 85 and 86 EEC Treaty which prohibit enterprises to conclude cartel agreements or to make abuse of a dominant position. On the other hand, the possibilities of the Court to initiate such developments in the field of contract law are considered to be very small.

The European Court of Human Rights, too, is hardly active in the field of private law. It is true that a number of human rights as enumerated in the European Convention on Human Rights and its Protocols have private (patrimonial) law connotations (e.g. the right of property in art. 1 Protocol I) and that such provisions may have a ‘horizontal’ or ‘third party’ effect. But the Convention does not provide much clarity as to the question of horizontal effect of its provisions) and the European Court does not overtly accept it.

Another aspect of case law relates to the national courts in the EU Member States. A national court decision may acquire a specific European flavour if the court either in the heuristic process or in the justification of its decision takes into account the case law or scholarly opinion in other Member States. This may be attractive for a court when having to decide on a new problem for the solution of which it does not find sufficient guidance in its Civil Code or in its national precedents. By its persuasive force such a decision may be accepted in other countries and so become a part of European private law.

C ‘Soft Law’

6) PICC and PECL. In the introduction to this paper, mention was made of the UNIDROIT Principles for International Commercial Contracts (PICC) and the Lando Group’s Principles of European Contract Law (PECL). I shall now give a brief description of the way these Principles came into existence and of their contents and the possible functions they may have in the future.⁾

(i) The first of these commissions was founded by UNIDROIT (`Institut pour l'Unification du Droit Privé'), an intergovernmental organisation composed by some 60 member States which was created in 1926 by the League of Nations. Until recently, this Rome-based Institute directed its activities exclusively towards international conventions, its most renowned success being the 1964 Hague Uniform Laws on the International Sale of Goods which subsequently served as a key source of inspiration for the 1980 UN-Convention on the International Sale of Goods (CISG), mentioned above. However, around 1980 the Institute created a working group charged with the elaboration of a non-binding legal instrument on the general part of contract law. The group was composed by some 17 members originating from various European civil law countries and, in accordance with the universal vocation of the Institute, other countries, including Great Britain, USA, Canada, Australia, Russia, Japan, China and Ghana.

Since 1980 the working group has met once or twice a year for a one week session. In 1994 the group finished the first part of its work and in the same year the Governing Council of UNIDROIT - which in the preceding years had already discussed a number of controversial questions - approved the work of the working group and consented to the publication of the Principles.⁾

The Principles are drafted as articles and are accompanied by comments, which include illustrations wherever deemed useful to illustrate their content and scope, and references to other pertinent international instruments of unified law. Subject to some limited exceptions, the comments do not refer to national legal systems.

The UNIDROIT Principles consist of a preamble and 7 Chapters: general provisions, formation, validity, interpretation, content, performance and non-performance. All together, these Chapters contain nearly 120 articles, ranging from statements of principle and flexible standards to more (but never very) detailed provisions.

In 1998 the group in a partly modified composition has resumed its work in order to supplement the Principles with chapters on such issues as agency, set-off, prescription and assignment.

(ii) Much of what has been said above equally applies mutatis mutandis to the Commission on European Contract Law (the Lando Commission). The Commission consists of some 17 members recruited from all the Member States of the European Union. The members are not selected by their governments and they do not represent their countries in an official capacity. They are mostly academics or practicing lawyers (or both) who are free to make up their minds independently and without any governmental instruction. Expenses are met partly by the European Commission, partly by other sources. The group started its work about 1980. The activities of both groups are influenced reciprocally as some of the scholars are involved in both projects.

Like the UNIDROIT Principles, also the European Principles are drafted as articles and are accompanied by comments, which include illustrations wherever deemed useful to illustrate their content and scope, and references to other pertinent international instruments of unified law. Moreover, the comments are followed by notes containing brief references to the national legal systems of the European Union.

The first part of the European Principles was published in 1995,⁾ the second part is in the course of publication. The Principles include chapters on general provisions, formation, authority of agents, validity, interpretation, contents and effects, performance. non-performance and remedies in general, and particular remedies for non-performance.

Together there are now 9 chapters containing some 130 articles, which like the UNIDROIT Principles, range from general statements and flexible standards to more detailed provisions.

The European Principles will also be supplemented by further chapters. Currently, work is under way on such subjects as assignment, taking over of debts, transfer of contract, solidary obligations, set off and prescription.

(iii) What functions could the Principles serve? The Principles may serve as a scientific preparation for a European Civil Code as far as contract law is concerned. By the sheer fact of their existence, they prove that a reasonable compromise between the various legal systems of Europe (and beyond) can be reached. In this connection it is interesting to note the extent to which the two sets of Principles resemble each other, not merely in the editorial form in which they (and the accompanying commments) are presented, but also in substance. Moreover, already now they offer a general background and point of reference, however informal, for new law to be created by the European producers of piece meal legislation in directives and ordinances.

Of course, they may also serve other purposes. They may serve as a model law that could inspire national legislators striving for law reform. Equally, judges may turn for inspiration to the Principles when confronted with a gap in a Convention or statute. Parties may decide to incorporate the Principles in part or as a whole in their contract. Parties to an international contract could chose the Principles as the law applicable to their contract and if the contract contains an arbitration clause arbitrators who are authorised either by the parties or by the applicable arbitration laws may resort to the Principles to find suitable solutions to the dispute at hand. All this happens already in practice. Moreover the Principles will certainly have an important scholarly and educational value and they will make it more attractive to introduce in law schools new curricula teaching European law side by side with the national laws of their respective countries of residence.

7) The European Civil Code Project. In my opinion it would be highly advisable that working groups along the lines of the two contract groups would also be set up to explore other parts of private law, especially those parts of the law that are related to international trade and traffic, such as a number of specific contracts, parts of property law (notably security rights affecting movable property and debts) and tort law. Quite recently it has become certain that this will indeed happen. In 1997 in Scheveningen (The Hague’s sea-side resort) the Dutch Government, at that time chairing the European Union, hosted a one-day conference 'Towards a European Civil Code', dealing with the feasability of developing a European Civil Code. The discussions centered on the legal basis for such an enterprise, the advantages and disadvantages of the project (also in comparison to other activities which could in the long run lead to the same result), the procedure to carry out the work and the contents of such a code.

In the aftermath of this conference a group of scholars decided to take the initiative for such a code, conceived as a research (scholarly) activity: the intention is to abstract, through highly detailed analysis covering all jurisdictions in the European Union, fundamental rules for the European patrimonial law. The intention is not to create a draft for a European Civil Code; not only because the project is only concerned with a part of the subject matter which would be covered by a Civil Code, but also because the creation of a Civil Code is a political goal. In this project, however, there is no involvement of national governments or of the institutions of the European Union. Applications for grants were not presented to these institutions, but to a number of national organisations for the funding of research projects, such as the Deutsche Forschungsgemeinschaft and the Nederlandse Organisatie voor Wetenschappelijk onderzoek. The work is aimed at providing the basic research on principles necessary to lay the groundwork for the drawing up of a European civil code.

At the present moment grants have been received from

the German, Dutch and Flemish (Belgian) organisations and from the Onassis Foundation. This means that at the present moment there are sufficient funds for three working groups consisting of young researchers from all or most of the EU Member States to be created under the direction of professors Drobnig/Basedow (Hamburg), Von Bar (Osnabrück) and Hondius/Barendrecht/Hesselink (Utrecht/Tilburg/Amsterdam). The Hamburg group will start work on secured transactions (personal securities, securities in movables and account recevables, reservation of title) and insurance; the Osnabrück group on ‘non-contractual’ obligations (tort law, restitution, negotiorum gestio) and the Utrecht/Tilburg/Amsterdam group on contract law (sale and services). It would be extremely satisfactory if a fourth group could be set up in the French speaking part of Europe or in one of the Mediterranean countries, in which case other topics (still to be decided) will be included in the project’s work programm. The chances of such a group are under consideration at the moment.

Every working group will be assisted by a group of five or six advisers from several member states with a view to avoiding right from the start any national narrowing of viewpoint. The results of the work will be laid down in the 'Restatement fashion', already practised by the Lando Commission: principles, accompanied by comments, illustrations and notes. The output of the working parties will be discussed and decided upon by a Coordinating Committee composed in a way comparable to the Lando Commission, viz. experts from all the EU Member States and some other states (preferably including observers from some middle and eastern European States) and a few other experts (e.g. experts in European Community law, uniform law, consumer law and the law of prescription).

The planned duration of the project is six years. Grants are now for two or three years but they are expected to be continued if the evaluation after the first couple of years will be positive.

8) There are some other groups working on projects comparable to the Principles-projects of UNIDROIT and the Lando Commission. In Italy, professor Gandolfi has convened a group of scholars in order to prepare a draft Code (or set of Principles) based on Book 4 of the 1942 Italian Civil Code and the so called McGregor Code. This group has not yet produced any visible results. Moreover, a group under the direction of professors Spier and Koziol is in the process of elaborating Principles of Tort Law and has begun by publishing several volumes of articles. Recently also a volume of ‘Principles of trust law’ has appeared.

D Scientific/educational projects

9) Perhaps the most important prerequisite for the growth of a European private law is the creation of a body of ‘non-national’ literature. The first book worth mentioning in this respect is Reinhard Zimmermann’s monumental ‘The Law of Obligations. Roman Foundations of the Civilian Tradition’, which departs from Roman law and then follows the development of the legal institutions into the modern systems. In my impression this book caused a ‘scientific shock’ whose impact was to a certain extent comparable to the important events mentioned in section 1 supra.

Ideally, this type of books would deal with a given field of the law (e.g. contract or tort law) as common European law, in the sense that they would ‘try to show that there exists in these fields a common stock of principles and rules used throughout the laws of the European nations.’ Of course, given the present state of affairs in Europe, these books would have to pay more attention to national divergencies of the law than most American ‘national’ textbooks do, but nonetheless they would do so in a way treating these differences as merely local variations of a theme which in principle is unitary. Two of these books have now been published: ‘Europäisches Vertragsrecht’ (Vol. I) by Hein Kötz and ‘Gemeineuropäisches Deliktsrecht’ (Vol. I) by Christian von Bar. Others are in preparation and it may well be that also the European Civil Code project mentioned before (supra, section 7) will result (apart from the ‘Restatement’) in one or more of such books.

Books of this type will be indispensable for the purposes of law school teaching and restructuring the law school curricula in a more Europan fashion, which in its turn is of the essence in educating a new breed of truly European lawyers. But of course, also other types of literature are called for to achieve these purposes. Mention may be made in this connection of books such as ‘Contract Law Today, Anglo-French Comparisons’, ‘The Gradual Convergence’ and ‘Towards a European Civil Code’. The movement as a whole is supported by new legal reviews such as the Zeitschrift für Europäisches Privatrecht (ZEUP, from 1993), the European Private Law Review (ERPL, from 1993) and Europa e Diritto Privato (from 1998).

10) In this connexion, mention must still be made of two highly interesting scholarly projects.

The first of these is the ‘Common Core of European Private Law’, conducted by Mauro Bussani and Ugo Mattei at the University of Trento. Inspired by the famous project of Schlesinger a considerable group of mainly young scholars intends to produce a reliable geographical ‘map’ of the law of Europe. This task is conceived as part of building a common European legal culture, in which cultural diversity is an asset but not a dogma, and of creating a suitable basis for a discussion about unification of the law. Although the project seeks to analyse the present situation without trying in any way to force uniform solutions, it is not hostile towards codification and opposes the view that Code and Culture must be perceived as antithetical to and exclusive of one another. The working groups (contract, tort, property) proceed on the basis of a factual approach: questionnaires containing detailed cases are sent out for answers in order to warrant that all ‘legal formants’ of the respondent’s legal system are taken into account. The first results of the Project (a volume on good faith, edited by Zimmermann and Whittaker, and one on the enforceability of promises, edited by Gordley) are forthcoming.

The other project I want to mention are the ‘Ius Commune Casebooks for the Common Law of Europe’, started in 1994 by Walter van Gerven (Leuven/Maastricht). The project aims to produce a collection of cases and other materials with accompanying notes, introductory comments and comparative overviews in each of the main fields of law. The cases will be mainly taken from English, German and French law and from the case law of the two European Courts, but other countries will be included when they present an original approach or constitute an improvement on solutions adopted by the major legal systems. In this project the emphasis, obviously, is not so much to create uniform rules as to find similar solutions and rules in the existing laws or to state the differences between them and to analyse and compare the legal reasoning behind them; ‘be it always with a préjugé favorable towards solutions and reasonings that show an existing or emerging consensus, or at least Konzensfähigkeit, among the European legal orders.’ In the first phase (1996-2000) casebooks are to be prepared in the areas of Tort, Contract, Judicial Review of Administrative Action and Company Law. For each casebook an editorial comittee has been brought together, made up of academics with interests and experience in comparative law, coming from a number of legal systems. After some time of experimenting (elaborating an approach to the selection and presentation of materials and developing working methods) a first result has been published: the largest chapter of the Casebook on Tort has appeared as a stand-alone work, entitled Tort Law: Scope of Protection.

III Concluding remarks

11) From the preceding survey it will be clear that a Europeanisation of private law is actually under way. I would say that such a tendency is inevitable in a region where national frontiers are rapidly losing their importance, where official policy is aiming at a free flow of goods and services, where merging economies and companies require legal expertise exceeding national systems and languages. As yet it is not certain where all this will lead to. In particular, it is by no means certain that Europe will ever know something as a common code of private law. We all know the obstacles: differences in legal cultures (not merely between continental law and common law), opposition in the common law world to any large scale codification, the language problem, the lack of a solid legal basis in the European treaties for such an enterprise. On the other hand, much in Europe has occurred which was not believed to be possible only a few decades ago. A call for a codification might all of a sudden become a reality, e.g. when for political reasons a success is necessary. Let us not forget that creating a code does not cost much and could be an important psychological boost to the integration process. Personally, I do not believe that such a development would do serious harm to the cultural diversity in the various European nations. For one thing, I do not believe that many people outside the legal world would regard private law (especially patrimonial law) as a national cultural asset; and moreover, a code would of necessity only contain a relatively small part of the law, even of private law.

Be that as it may, the development of a European law fortunately is not contingent upon the preparation of a European Civil Code. Such a development is also necessary in order to better serve the offical goals of the European Union; in order to provide the necessary general background to future private law enactments of the European Union and to future case law of the European courts; and in order to prepare the European law students already in the university for their tasks in European businesses and law firms. And for Europe's scholars and practising lawyers it is a very welcome stimulus to broaden their view, to give up the purely national flavour of their field of study: in brief to open their eyes to the outside world which so many of them lost out of sight since the codifications of the 19th century.

Aantekeningen voor Trento-artikel (eigenlijk gemaakt voor lezing Berlijn in juni 1999, die niet door is gegaan wegens overlijden Vincent)

Basis voor artikel: Hfst I prf. Martijn
Nummer ERPL over de conferentie in febr. 1997 in Den Haag:
-Van Gerven, ERPL 1997, p. 465 e.v. rechtsbasis in verdrag voor BW? Neen, liever verdrag voor landen die willen
-Tilmann, p. 471 e.v. ziet wel een basis, nl. in 100A; de basis is er immers voor consumentenrecht, en dat moet mede betrekking hebben op midden- en kleinbedrijf, en dat is zo'n beetje het hele BW. Vb: nieuw kooprichtlijn.
-Snijders p. 483: parlement vraagt alleen om necessary preparatory work. Suggests a gradual progress.
-Drobnig p. 489: geen behoefte aan Europees recht als er al internationaal verdrag is. Bijv. CISG. Hij wil de Code beperken tot intra-Union transborder (border-crossing) transactions, o.m. vanwege het element van de cultural identity (even if one is sceptical about his argument). Code should be restricted tot patrimonial law. Voor een algemeen deel.
-Gambaro
-Bonell
-Markesinis p. 519 e.v. tegen Europese codificatie pleiten niet alleen de bekende praktische argumenten, maar ook het feit dat de codificatie-gedachte onder academici minder populair is dan vroeger. Ander probleem (p. 521, tegen Zimmermann, ius commune): de complicated amalgam of private and public law - constitutionalisation of private law - informed by a very different ideology than the one that shaped our traditionale private law with its Roman origins. Denk aan labour law, en het verband tussen tort law en social security/attendant rights of subrogation.
Hij pleit voor: 'national law schools', directives, Lando-principles (te kiezen door partijen), meer aandacht voor rvgl in hoogste gerechten, gevoed door nieuwe literatuur.
-Lando p. 525. Noot 4 over Savigny (wel de vader van de cultural identity-gedachte, denk ik; vgl. p. 529).
p. 526 eerst contractenrecht (zie de reden onder C). Dan torts and movable property (incl. secured transactions).
p. 527 The choice of law rules of the Rome Convention are a poor tool of legal integration. Mooi citaat van Thibaut tegen ipr.
p. 531 creeping harmonization is niet voldoende, want geleerde discussies leiden tot veel onzekerheid. Een simpele wet is beter (vgl. Thibaut en Portalis). Bovendien zijn de rechters gebonden aan hun nationale recht.
-Mattei p. 537 Een Europees BW is aanvaardbaar if it reduces transaction costs. Common Core project is indispensable prerequisite to a transaction cost reducing European Code.
-Koopmans p. 541. Er is geen duidelijke verdragsbasis en de politieke prioriteiten van de Unie liggen op het ogenblik elders. De academici moeten gewoon beginnen. Er zijn veel nieuwe problemen; het werk aan een EBW kan inspiratie opleveren om die op te lossen.
Vorm: richtlijnen of (model)verdrag?
Inhoud; alleen transborder? Kennelijk ziet hij niet veel in het element van cultural identity (p. 544).
Het probleem civil/common law. The Community cannot continue to deal occasionally with matters of private law without developing a general idea of how the different piece will ultimately fit together (544). Elements of convergence: 1) in common law steeds meer wetgeving; 2) in civil law steeds meer case law; 3) general principles of law developed by European Courts; en de constitutionalisering van burgerlijk recht.

Kötz, The Common Core of European Private Law: Third general meeting, Trento 17-19 July 1997, ERPL 1997, p. 549-552. Tegen onmiddellijk EBW, maar voor ontwikkeling van common core. Wat is nodig?
1) textbooks, treatises and case-books based on a decidedly non-national point of view, seeking to discuss their subjects in a way which by no means ignores the rules of national legal systems but treats them as merely local variations of a European theme. Basis voor toekomstig wetboek.
2) regels opstellen. Principles, Common Core. Dit laatste werkt op de basis can concrete casusposities. En het zoekt naar alle 'legal formants'. Dat kan verschillen verklaren, bijv. het feit dat de Engelse gerechten vooral commerciële geschillen beoordelen.

Kötz, A Common Private Law for Europe: Perspectives for the Reform of European Legal Education, in De Witte/Forder (ed), The Common Law of Europe and the future of legal education (1992), p. 31-41
Pleidooi voor 'national law schools' en legal literature.

Larouche, Ius Commune Casebooks for the Common Law of Europe: Presentation, Progress, Rationale, Paper Florence okt. 98
Koopmans, Towards a new "ius commune", in De Witte/Forder (ed), The Common Law of Europe and the future of legal education (1992), p.43-51
Hij ziet een nieuw ius commune ontstaan als je ook let op administratief recht, Europees recht, mensenrechten etc. Verder handelsrecht.

Remien, Oliver, Illusion und Realität eines europäischen Privatrechts, JZ 1992, p. 277-284
Alle bouwstenen. Oost-Europa.

Bussani, Mauro, en Mattei, Ugo, The Common Core Approach to European Private Law, Columbia Journal of European Law, Vol. 3, 1997/8, p. 339-356
p. 340 zoeken naar de common core (what is already common), if any. Geen streven naar uniformiteit zoals Lando Groep (m.i. dubieus: klein gebiedje).
Ze werken aan common European legal culture, net als Erasmus programma en Casebooks. Wens: European Law School.
CCP is aimed at scholars (Casebook at students).
Methode: vragen over casus (Schlesinger), legal formants=rechtsbronnen(Sacco).
Zie de kern beschreven op p. 347: ‘The fundamental characteristic of the common core research is that it analyzes the existing situation without trying in any way to force uniform solutions; its purpose is to provide with the highest degree of precision a map of the relevant elements of different legal systems.’ Kan wel tot meer uniformiteit leiden, omdat die wordt aangetoond. Verschil met Lando: first step to Code (dat is volgens Lando more radical dan de Restatement, maar volgens Bussani/Mattei is er toch het gemeenscahppelijke punt dat ze beide nieuw recht creëren, niet alleen maar bestaand recht analyseren).
UNIDROIT Principles willen geen opstap zijn naar Code, maar ze zijn wel normatief van aard, ze streven naar legal change.
Dan over European Civil Code (p. 349). Geen keuze, maar common core project kan bouwstenen voor beslissing aandragen. In elk geval is de tegenstelling Code-Culture vals. Legal change is altijd combinatie van top down and bottom up. Ook bij sterke toename richtlijnen is ccr nuttig voor het scheppen van een interpretive community. Dit is zelfs zo als er een Code komt. Goed stuk m.i. NB het eerste besluit van Europees parlement spreekt zowel over harmonisatie als over codificatie.

Towards a European Civil Code, 1998

Hondius p. 7 e.v., over de verschillende met codificatie verbonden vragen (bevoegdheid EU, transborder etc.). p. 11 Uit een antwoord van Bangemann blijkt dat de Commissie alleen art. 220 als basis ziet.
p. 18 Circulation of legal ideas.

Zimmermann, over ius commune en over het Europese karakter van Engels recht

De Ly, p. 43 noot 7: kritiek op Legrand (onderschat de verworvenheden van uniform law in de laatste 110 jaar en de convergence tussen civil en common law).
p. 45 Lex mercatoria is begonnen als theoretisch concept, maar heeft nu de arbitrage bereikt. Kan ook gaan gelden voor Europees privaatrecht.
[p. 47 er is een European Franchising Code]
p. 51 Europees recht ondersteunt soms de lex mercatoria: In Europa is er geen verdrag over erkenning van arbitrale uitspraken, hoewel art. 220 Verdrag dat voorschrijft, omdat de 1958 New York Convention daarin voorzag.
p. 52 discussie over art. 3 en 4 IPR-verdrag: laten die een keuze voor Principles of European Contract Law toe? Of zelfs een toepasselijkheid op basis van de close connection?

Hyland p. 61: codificatie in common law moeilijk vanwege dichotomie tussen law and equity.
p. 65 het hang er maar van af wat voor soort codificatie je wil. In USA: creation of a common vocabulary and a framework for further discussion (daaraan voldoen Restatement and UCC).

Müller-Graff, p. 72: door directives workable degree of compatibility and conformity of national private law rules. P. 77 They mirror, though often vaguely, a widely accepted common core of basic assumptions of private law in the Member States of the Union. Overzicht richtlijnen.

Van Gerven, p. 91 verwacht weinig van EHJ op het gebied van het contractenrecht. Richtlijnen worden vaak heel letterlijk en weinig ‘bold’ uitgelegd (in tegenstelling tot beginseln die ten grondslag liggen aan de Verdragen). Vb: goede trouw in richtlijn over Unfair Terms.

Joustra 139 over richtlijnen consumentenrecht. P. 141 Richtlijn volgens haar geen geschikt instrument voor unificatie (schrijven alleen resultaat voor, dus alleen harmonisatie).

Ferrari 363 CISG en Europa (noot 364: internet site Pace Un. Met bibliography).

Fontaine 371: goede inleiding over Europees BW.

Opzet
Enige historische milestones (Resoluties Europees Parl., Zimmermann, Principles, 1/1/93 voltooiing gemeenschappelijke markt), voorbereiding Euro, boeken Kötz en Von Bar, congressen in Maastricht en Scheveningen).

Europees privaatrecht: niet identiek met Europees BW!

Welke dingen er gebeuren/wat is relevant voor de ontwikkeling van Europees privaatrecht.
-Principles-groepen+
-European Civil Code Project+
-Gandolfi Project+
-Common Core Project
-Casebook
-Directives EU/Verdragen+
-Rechtspraak HvJ+. Hier nog White/Jones vermelden (Martijn p. 21)
-Rechtspraak EHRM+
-Literatuur: Zimmermann, Kötz, Von Bar, Markesinis (The Gradual Convergence), tijdschriften, Towards a European Civil Code+
-Socrates programm

Uitzicht op BW? Zie Martijn: bezwaren zijn cultureel argument en civil law/common law. Maar bedenk dat politieke beslissing alles overrulet. Kan leuk zijn voor Europese leiders als er weer eens een succes moet worden behaald. Wetboek kost niets!