From Principles to Codification: Prospects for European Private Law

8 Colum. J. Eur. L. 379 (2002)

Christian v. Bar. Dr. jur., Professor and Director of the Institute of Private International and Comparative Law at the University of Osnabrick (Germany); Bencher (Hons.) ofGray’s Inn; FBA; Member of the Commission on European Contract Law; Chairman of the Study Group on a European Civil Code.


The following article is concerned with a debate which these days preoccupies the minds of many academics and at least some politicians throughout the European Union: the questions of whether, how, to what extent and under which name a further approximation or even harmonization of their private law systems could and should be prepared and carried out. The developments to which I shall be making reference are sometimes called the European Civil Code debate. That is in itself a difficult expression, however, especially if used on purpose by those who oppose the modern European school and, for whatever reason, wish to stop it from going ahead. I will, therefore, first describe and analyze what is actually going on and what we in the Study Group on a European Civil Code have in mind before discussing the question under which flag the fleet should set sail.

The impetus for our present considerations was without doubt provided by the Commission on European Contract Law (CECL), which started its labors – primarily at the initiative of the Danish professor Ole Lando – in 1982. The Commission on European Contract Law is a body of experts made up from professors from all the EU jurisdictions, together with Norway and Switzerland, which has defined and annotated principles of European contract law. These principles concern the general questions of the law of contract. The first and second (consecutive) Commissions of the CECL addressed formation, validity, interpretation and content of contracts, the authority of an agent to bind his principal, the performance of contractual obligations and remedies for non-performance.

The results were published first in 1995 (Part 1)2 and then in 2000 as (consolidated) Parts I and II of the “Principles of European Contract Law” (PECL), initially in English, but in the meantime progressively also in a series of further languages of the EU. For the current year 2002, moreover, we also anticipate the publication of the results of the work of the third (and final) Commission of the CECL. This third part of the PECL will contain principles concerning conditions, the effect of illegality and matters common to all component parts of the law of obligations such as plurality of debtors and creditors, assignment of claims, substitution of a new debtor, set-off and prescription.

In the introduction to Parts I and II of the Principles, it states that “one objective of the PECL is to serve as a basis for any future European Code of Contracts. They could form the first step in the work.” The authors of the Principles thus themselves identify a connection between their own work and the “European Civil Code debate.” However, the Principles are in no sense merely and exclusively focused on that goal. There is no statement to that effect in the actual text, and within the CECL (often a lso referred to as the Lando Group), though it may come as a surprise to many, the advocates and opponents of a European Civil Code, numerically considered, are finely balanced. As is fairly apparent, it all depends ultimately on what one understands by the notion of a European Civil Code: whether it is conceived as a wide-ranging legislative act of conventional type for the purpose of crowning the birth of a state or the triumph of a revolution, or rather as an intellectually sound model with the potential, progressively and bit by bit, to grow in legal authority and binding force. Only on that point – that it is sensible to tackle the matter on the latter approach – is there consensus among us.

The same is correspondingly true for the Study Group on a European Civil Code.! which is not called a “Study Group” for nothing. That is because the Group seeks first to sound out the various possible routes into the future and is accordingly dependent on (and disposed towards) a manifest spectrum of opinion which is as wide-ranging as possible. The Study Group is continuing the work begun by the CECL with its express approval and in part even with the same personnel. It was constituted in 1998, when it was foreseeable that the CECL would soon be bringing its work to a conclusion and would wind itself up. The Group has been fully active since 1999. It is formed as a network of some 100 jurists from all the Member States of t he European Union t ogether with observers from other c ountries, in particular Poland and Hungary and lately also Slovenia and Norway. I will return to the subject of the Study Group in a moment. Incidentally, a Commission on European Family Law has recently been founded which in the coming years will commence its work and coordinate its endeavors with those of the Study Group.