All entries for October 2012
October 17, 2012
On september 13, 2001 the European Commission began to think and work about a european civil code. At this time, there are a lot of reticences from some Members State. Different criticism are expressed :
- Institutional criticism : about which legal basis ? Which one is the best and the most suitable for Europe ?
- Cultural criticism : Is the unification the best way ?
- Economic criticism : Is it more efficient ?
- Political criticism : What is the democratic legitimacy for this different groups ?
During the year 2003, the European Commission announced that the project will be limited to an European contract code. The Draft Common Frame of Reference (with Professor Lando) would published in 2009.
What are the objectives of an european contract law, of the unification of this matter ?
The first real advantage is to promote the good way, the functioning of the internal market. The aim of the European Commission is to encourage cross-boarder transactions. If a german society and a french one contract together, which law is applying ? With an european contract law, it would be easier and no State would benefit from the application of its proper law. It's a way to protect each party in a european contract.
The current divergences between different national law (for example civil law and common law) are an obstacle for the development of Trade in Europe. For example, “in civil law systems there is a general and pervasive principle of good faith, in the european common law systems, there is no such general principles”.
It is not so simple to want to unify the law in Europe. Each State has its national law. They want to keep their own particularities. Each State has its own Story, culture and philosophy. Their law come from this story and the unification is difficult.
Beyond this difficulties, we can imagine how the writing of such an european code of contracts would facilitate the contract between parties from different european countries.
But have we not already an european codification ? It's maybe the most part of our national law. It doesn't exist an european contract law but the European Commission with its directives contributes widely to the european codification of contracts and we can think that an european contract code wouldn't be necessary.
Sources : H. Beale, B. Fauvarque-Cosson, J. Rutgers, D. Tallon and S. Vogenauer, Casebook on the Common Law of Europe: Contract Law (Hart, ed. 2, 2010).
October 10, 2012
Comparative law : a way of unification ?
Comparative law has undergone simultaneous development alongside the development of European private law. Initially, private law was essentially a national topic. However, with the development of European private law, comparative law was born. Why comparative law ? To have the best law in Europe, we must compare ours to the other national legal systems. From this, we can chose the best one, or create a new one. We compare to unify the different national laws and to have a unified european law. A uniform law “cannot be achieved by simply conjuring up an ideal law on any topic”. (An introduction to comparative law, K. Zweigert and H. Krötz). The best example is the United Nations Convention on contracts for the international Sale of Goods (CISG), 1980.
On an other hand, comparative law can be an instrument to reach a political goal. Comparison can show the differences, more than the similarities. Furthermore, it can be an obstacle to unification. If the comparison shows a “common core”, this majority solution still not necessarily be superior.
But it has been already demonstrated that the comparative study of national jurisdictions can be and are used to adopt a certain solution at the European level. The European legislature wants to avoid an outcome under which one or more national jurisdictions is given preference over the other. The comparative law shows how national jurisdictions integrate european directives in their national level too.
Comparative law is not only a way of unification but it is one of its major objective. It can be a way of harmonization too. Harmonization exists to do that national countries can work together and have harmonized legal system. Unification is the rule of directives : it is the same law in every European country.
Comparative law can help the countries to improve their legal systems.
Sources : D. Heirbaut and M.E. Storme, The historical evolution of European private law (the Cambridge Companion to European Union Private Law, Cambridge University Press, 2010); H. Beale, B. Fauvarque-Cosson, J. Rutgers, D. Tallon and S. Vogenauer, Casebook on the Common Law of Europe: Contract Law (Hart, ed. 2, 2010).