12 Colum. J. Eur. L. 775 (2006)

Mel Kenny, Marie Curie Fellow at the Centre for European Law and Politics at Bremen University.

Quis custodiet ipsos custodes?-Who will guard us from our guardians?-expresses one of the central dilemmas of decision-making: the tendency for the bounds of power to be abused in modern states. This Article argues that a similar process is observable in the EU-where governance is becoming ever more informal, ad hoc, and disorganized-and is exemplified in the Commission’s strategy to improve the coherence of EC law where, despite the ostensible rejection of a European civil code, a broad exercise in codification is being incrementally promoted. In its Progress Report on European Contract Law of September 23, 2005, the Commission marked a new stage in the elaboration of a “Common Frame of Reference” and an “Optional Instrument”; instruments to be seen as elements of an embryonic European Civil Code. Purportedly, the Commission aims to consolidate rather than codify provisions of EC law as they shape national private law; with the task of elaborating “non-Code” measures- “Common Principles of European Contract law “-allotted to a consortium-the Joint Network on European Private law-led, paradoxically, by the Study Group on a European Civil Code. The Commission affirms in the Progress Report the need for a more horizontal approach to EC law, specifically in the field of consumer protection. Caught at an intersection of paradoxical goals, agendas, and outcomes, it is argued that the codification approach will ultimately fail. The Article concludes by charting the codification landscape; outlining the major research themes, addressing the governance implications and the need for more work to be done analyzing the effects of codification on the law in action.