REFERRING TO A FRAME? SOME REFLECTIONS ON THE EUROPEAN CONTRACT LAW PROJECT

Abstract

In 2005 the Joint Network on European Private Law was entrusted by the European Commission with drafting a Common Frame of Reference (CFR) for European contract law. In the Commission’s own words, the CFR is to be ‘a tool box for the Commission when preparing proposals, both for the existing acquis and for new instruments’. The Commission could not have emphasised more often that the CFR is not to become a new European Civil Code. Nevertheless, and perhaps paradoxically, the expected outcome of the Network’s efforts is indeed a model law, ie a code, which is to be presented by the end of 2007.
This article focuses on two aspects of the overall harmonisation project. First, the constitutional setting for harmonising private law is highlighted. Are there limits to the internal market mandate? It would seem that the post-Maastricht challenge of setting such limits has not yet been resolved. The EC Treaty’s post-Tobacco Advertising Article 95 does not provide unlimited competence to adopt a comprehensive European contract law. However, the lack of concrete criteria leaves much room for activity by the EC legislator. The article describes the criteria stipulated by the European Court of Justice, and also critically discusses the use of empirical data in this respect. In the second part, the meaning of the frame of reference and the first statements on the work in progress are examined. The new instrument will assume a concrete form very soon, and the paradox of drafting a CFR code while making ‘no-code’ claims demands attention. The Commission has defined what the Network should elaborate for the CFR as ‘best solutions’. The article outlines the scope of the CFR and discusses the necessity of such an instrument, as well as the idea of finding ‘best solutions’. In this respect, the idea of a regulatory competition scheme for European contract law is supported. Differences between national legal systems are the essential precondition for a learning process within the Community. At the same time, detecting inconsistencies within the existing acquis is a reasonable concern. One possible role of the CFR is to serve as a quality control instrument when drafting European legislation.