November 01, 2012

The Advantages and Disadvantages of a General Part in a Civil Code

While reading about the place and sources of contract law, I was surprised about the fact, that only the German BGB has a elaborate structure.

The German BGB is split into 5 Books. Every Book is split in several Sections with several Titles. Maybe the most important book is the first Book, named the General Part. It contains regulations applying to the whole BGB. It has a very high grade of abstraction. You can say the General Part of the BGB are regulations "placed outside the bracket".

E.g. Section 1 treats with persons. It defines in Title 1 Natural Persons, so in § 13 and §14 consumer and entrepreneur. Title 2 is about Legal persons. These definitions universally valid in the whole BGB and e.g in the Commercial Code concerning the definitions of Legal Persons. Thus it is a big advantage. The second big advantage is the fact, all these definitions are codificated in one book, you can always take with you. You don't to know or to search for cases which could fit to the problem like in English Common law.

But when we take a more detailed look on the General Part of the German BGB we notice that it would incompatible for a common European Private law, because the General Part of the BGB is remarkable for its high grad of abstraction and its tight relation to the German language. A lot of German jurists struggle with understanding and interpreting the General Part and the translation of those abstract formulations into the 23 languages of the European Union would be more than difficult.

A compromise between the very abstract General Part of the BGBn in Germany, the very clear commentary stile of the French Code Civil and the enourmous and complicated English Common Law might be the solution choosen by the drafters of the Draft Common Frame of Reference, a model of a European Private Law codification. The DCFR consists of General Provisions which are comprehensible for everyone and not only for the educated jurist with good interpretation skills.


Books

Beale, Fauvarque-Cosson, Rutgers, Tallon, Vogenauer : Ius Commune Casebooks for the common Law of Europe, Cases, Materials and Text on Contract Law


October 10, 2012

The legal nature of the European Union and its influence on European Private Law

In the text " The role of the conflict of laws in European private Law", the author Horatia Muir-Watt claims:"The latest swing, which once again vests the conflict of laws with the function of allocating prescriptive jurisdiction, is linked to quasi-federal nature of the European Union". But has the European Union really a "quasi-federal" nature? Or is the notion"quasi-federal" exaggerated?

For this reason, I want to point out the meaning of the very word "federal". According to Oxford Dictionary the very word "federal " has its seeds in the Latin words foedus or foeder which mean "league" or "convenant". So the adjective "federal" means " having or relating to a system of government in which several states form a unity but remain independent in internal affairs".

Starting from this basic and linguistic basis, there are really some facts which could bring you to the result, that the EU has a federal nature. According to Art. 1 sec.1 TEU "establish the HIGH CONTRACTING PARTIES among themselves a EUROPEAN UNION, on which the Member States confer competences to attain objectives they have in common". Hence, several requirements og the definition of "federal" are satisfied: several states, the 27 Member States of the Eu, establish a unity the European Union according to Art.1 TEU and according to Art.4 sec.1 TEU remain competences not conferred upon the Union in the Treaties with the Member States. Moreover relates the EU the a system of government consisting of 7 institutions. Therefore, the European Union might appear to have a federal nature to persons from a non-federal state.

But when we compare especially the power to confer competences of a federal state like Germany of the United States with the power to confer competences of the EU we find a significant difference: While in Germany the power to confer compences is hold by the Bund and not by the Länder, which for the united Bund. The Bund delegates the competences to the Länder and has the opportunity to delegate more competences to the Länder by a constitutional amendment. In the European Union it is the other way around: According to Art.4 sec.1 remain all competences not conferred upon the Union in the Treaties with the Member States. In accordance to Art. 5 sec.1 are the limits of the Union competences governed by the principle of conferral. The principle of conferral is established by Art.5 sec.2 TEU and says that, the Union shall act only within the limits of the competence conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States. Thus instead of delegating competences from the union to the members like in federal systems like in Germany or the USA, the European Union is vested with competences by its Member States.

Consequently it would be wrong to say, the European Union would have a federal nature.

But which legal nature has the European Union? The prevailing school of thought is of the opinion that the European Union is a new type of political entity called supranational. According to this is supranational union remarkable for being a multi-national confederation of independent Member States where negotiated power is delegated to an authority by the governments of the member states.

On this background it is easier to understand why the development status of a common European Private Law is so disappointing: not every Member State of the EU feels up to give up its own Private Law. Consequently the Member States refuse to delegate the competence to the European Union and it remains impossible to set up a common Private Law, it is like a vicious circle.


Bibilogaphy

Books:

N. Foster, Blackstone's EU Treaties & Legislation 2012-2013 23rd Ed., ( Oxford University Press)

C. Twigg-Flesner, The Cambridge Companion to European Union Private Law (Cambridge University Press)

J. Steiner/L. Woods/C.Twigg-Flesner, EU LAw, 9th Ed., (Oxford University Press)


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