Basil Markesinis: Leading the way to a ‚new ius europaeum’ - A review and appraisal of the Europeanization of Private Law

Inhalt

Introduction

Different attempts to create European Private Law

A European private law through Legal Science and Legal Education

Basil Markesinis

Conclusions

Appendix (Some Resource information)

Introduction

It is now widely accepted that the law of the European member states should be harmonized to make Europe’s economy more competitive. Business needs to operate across borders efficiently to stimulate a more competitive supply of goods and services. A plurality of separate solutions for the same issue is a risk that the uncertainty and complexity of the legal environment will undermine rather than enable legitimate economic activity. Therefore we need to create an economic environment underpinned by legal certainty and security. This essay on European Private Law discusses the progress of Europeanization in the field of Contract Law. It will, in doing so, especially focus on legal education and its contribution to achieve unification and harmonisation of European Union law. But, as the title indicates, in the actual centre of this essay, will be one scholar, who has significantly contributed to the understanding of comparative law and who has increased its status as a recognised legal subject: Basil Markesinis. It is furthermore my goal to provide English law students who are interested in comparative law topics with a guide to useful literature for their studies, especially with regards to German Law. I hope that this essay can contribute that comparative law may no longer be a “subject in search of an audience”, as Markesinis called it^[1], and to persuade English students of the benefits of comparative law studies.

Different attempts to create European Private Law

As seen above, differences of legal mentality can present problems and obstacles for projects of harmonisation of private law within the EU. There has been a whole series of different approaches made which have influenced the legal culture in Europe, the most influential one being the state-imposed law of the European Community. Other attempts comprise the discretion of the judiciary to use comparative law arguments, or the role of the universities and legal education in general. The creation of the Commission on European Contract Law, better known as the Lando Commission, at the beginning of the 1980’s (project of an independent study group of prestigious European legal scientists who have developed a non-governmental body of common European principles of contract law) and the Drafting of a European Civil Code as it was proposed by the European Parliament^[2] are probably the most obvious landmarks in the European development in this field of the last 40 years. Then, there is the International Institute for the Unification of Private Law, called UNIDROIT. Like the Lando Commission, UNIDROIT is an independent intergovernmental organisation with the purpose to study needs and methods for modernising, harmonising and co-ordinating private and, in particular, commercial law as between States and groups of States.^[3] All these initiatives have convinced the European Commission to take this topic seriously. The Commission is now working ambitiously on the realization of this project.

Since May 2005 a Joint Network on European Private Law^[4] is working on proposals for the so-called “Common Principles of European Contract Law” ( = CoPECL). These “principles” will include definitions, general concepts and legal rules drawn from a number of legal traditions. These actions form part of the idea to produce a “Common Frame of reference for a more coherent Contract Law in Europe” (CFR). Such a Common Frame of Reference shall then serve as a legislator’s guide or “tool box”.^[5] The CFR will also include what the authors think are the “best solutions found in Member States’ legal orders”. It is described both in the Commission's Action Plan^[6] and its follow-up, the Commission's Communication on 'European Contract Law and the Revision of the Acquis: The Way Forward'^[7] of 11 October 2004. These steps followed the first consultation document issued by the European Commission in July 2001, a Communication on European Contract Law^[8]. The aforementioned Communication already envisaged a more fundamental discussion about the way in which problems resulting from divergences between contract laws in the EU should be dealt with at European level. A first draft of the CoPECL will be presented at the end of 2007. The final draft is expected by the end of 2008. The German Presidency Programme does explicitly name the goal of a Common Frame of Reference and is planning to organize a conference on European contract law.^[9] The outcome has to be evaluated as to the economic impact and how the principles can be applied to cases from the different countries.

In this context we have to keep in mind that harmonisation through imposition by the European Community can still only be achieved within the narrow limits of its competences, i.e. the establishment and the functioning of the single market (arts. 100, 100A, 255 EEC-Treaty).

The creation of a single codification based on the competences of the EC is therefore more than doubtful. Nevertheless opinions have been voiced that a European Civil Code could be based on arts. 100A, sqq. EEC-Treaty, like Jürgen Basedow.^[10] Areas of law that are not considered to be necessary for the functioning of the European market would have to be excluded, such as family law, the law of inheritance and property law. On the other hand EC directives have so significantly changed the codifications in the member states. To name a few of the areas: doorstep selling, consumer credit contracts, unfair terms in consumer contracts or product liability, in the field of tort law. The contribution of the European judiciary and its Europe-friendly interpretation (the so called “effet utile”) of statutes should not be neglected in this context.^[11]

One can distinguish another method or concept to achieve harmonisation based on legal science and legal education. The supporters of this approach believe that imposition of law cannot be the right way to overcome the differences between the national legal systems and will probably not find the recognition and justification that is required. To some of them the European codification idea seems an illusory enterprise or a failure.^[12] However, there is the idea that students could be legally educated in Europe similar to the times of “ius commune” during the 17th and 18th century. Whether this historically meaningful event can be implemented in exactly the same way is less important; at least it can serve as a purpose.^[13]

[...]

^[1] B. Markesinis, “Comparative Law, a subject in search of an audience”, Mod. L. Rev. 53 [1990], pp. 1-21; or “Rechtsvergelijking – En Onderwerp Op Zock Naar Een Gehoor“, 26 Tijdschrift voor Privaatrecht, 1615, (1989).

^[2] See: Resolution on Action to Bring into Line the Private Law of the Member States, O.J. EC 1989 C 158/400; Resolution on the Harmonization of Certain Sectors of the Private Law of the Member States, O.J. EC 1994 C 205/518.

^[3] The Work Programme or the Triennium 2006/2008 as drawn up by the Governing Council at its 84th session (Rome, 18/20 April 2005) and adopted by the General Assembly at its 59th session (Rome, 1 December 2005) can be seen online: http://unidroit.org/english/workprogramme/workprogramme.pdf

^[4] The network encloses several groups: The Study Group on a European Civil Code under the guidance of C. von Bar as a network of academics with the aim to produce a codified set of Principles of European Law for the law of obligations and core aspects of the law of property; The Research Group on the Existing EC Private Law, or "Acquis Group"; The Project Group on a Restatement of European Insurance Contract Law, or "Insurance Group"; The Association Henri Capitant together with the Société de Législation Comparée and the Conseil Supérieur du Notariat; The Common Core Group; The Research Group on the Economic Assessment of Contract Law Rules, or "Economic Impact Group" (TILEC - Tilburg Law and Economics Centre); The "Database Group"; and The Academy of European Law (ERA).

^[5] Compare the presentation by H. Beale at the European Parliament, Committee on Legal Affairs

Public Hearing, on 21 November 2006. “Common Frame of Reference: What next in European Contract

Law”

^[6] COM [2003] 68 final - Communication from the Commission to the European Parliament and the Council - A more coherent European contract law - An action plan /* COM/2003/0068 final */

^[7] COM [2004] 651 Final.

^[8] Communication from the Commission to the Council and the European Parliament on European Contract Law, COM [2001] 398 final, 11.7.2001 (OJ C 255, 13.9.2001, p. 1).

^[9] See page 19 of the German Presidency Programme for January to June 2007 „Europe – succeeding together“: „Germany supports the goal of the European Commission to examine the provisions of Community private law, particularly consumer contract law, for consistency and coherence. The objective is to establish a European frame of reference containing instructions for consolidating existing legislation and for future legislation. The Presidency will organize a conference on European contract law, providing a discussion platform for legal policymakers, academics and legal practitioners.“ Online at : http://www.auswaertiges-amt.de/diplo/de/EU-P/Programm-EU-P-en.pdf

^[10] J. Basedow, Revue Internationale de Droit Comparé (1998), 7 For an overview of elder German literature see Christian Armbrüster, Ein Schuldvertragsrecht für Europa?, 60 RabelsZ [1996], 72.

^[11] W. Van Gerven, The ECJ Case-law as a Means of Unification of Private Law?, in A.S Hartkamp (eds.), Toward a European Civil Code, 3rd edition, Nijmegen: Kluwer 2004, pp. 101-124.

^[12] P. Legrand, 'Against a European Civil Code,' 60 [1997] Modern Law Review (MLR), p. 44. Compare page 58 : “It is artificial to treat England as a true adherent of the ‘ius commune’” His main arguments against a European Civil Code are: “Impracticality, backwardness, fallaciousness, and arrogance”.

^[13] B. Markesinis, The Gradual Convergence (Foreign Ideas, Foreign Influences, and English Law on the Eve of the 21st Century), ed. by B. Markesinis, Oxford Clarendon Press, 1994, preface.