Professor, University of Osnabrück1
From the Acquis Communautaire to the Common Frame of Reference - The Contribution of the Acquis Group to the DCFR
The recently published Draft Common Frame of Reference (DCFR) has been prepared by two main research groups, the Study Group on a European Civil Code and the research group on the existing EC private law, commonly called the Acquis Group2. I have been asked to offer a few words on the way the Acquis Group has achieved its output, the acquis principles (ACQP)3, and how the ACQP contributed to the DCFR. To that end, it seems useful to elucidate a little of what the Acquis Group is doing and what the purposes of its activity are, then to conclude with some remarks on the input this group has made to the DCFR.
The impulse for the research the Acquis Group is undertaking is closely linked to the situation in the second half of the 1990s, when the first parts of the now world-famous Principles of European Contract Law (PECL), commonly called the Lando Principles, were published4. As readers will know, the PECL include 'Rules', 'Comments', and 'Notes' material. The 'Rules' were elaborated on the basis of comparative research by the so-called Lando Commission, a group of comparative lawyers representing many European jurisdictions. The PECL aim to reflect commonalities of these jurisdictions, if any, or, if the national jurisdictions diverge greatly in their approach, to express a 'best solution' chosen from among them. The 'Comments' of the PECL explain the meaning of each rule and illustrate its application by way of examples. The most ambitious, and perhaps also most important, part of the PECL are the 'Notes', which contain comparative information on the corresponding rule in each Member State that belonged to the EC at the time when the PECL materials were developed.
However, when the PECL came out, those colleagues who were specialists in EC private law were, to some extent, disappointed. With a few exceptions, the PECL did not take into account the existing EC law in their field, the so-called acquis communautaire. This is not meant as a criticism of the PECL authors. When the work started, at the beginning of the 1980s, there was not much EC private law. The majority of the relevant directives were enacted after 1985, only becoming a regular phenomenon during the 1990s. The foundation of the Acquis Group in 20025 and of its predecessors in the mid-1990s6 was strongly motivated by the lack of EC law in the PECL. One of the original ideas was simply to supplement the Notes of the PECL with the references to EC law that were lacking. However, it became immediately obvious that there were loopholes and gaps not only in the Notes but also in the Rules. In particular, rules were missing on pre-contractual duties, distance selling, e-commerce, non-discrimination law, withdrawal rights, unfair terms7, and late payment. Thus, mainly, but not solely, protective rules stemming from the consumer and SME policies of the EU were non-existent.
Over time, the project to supplement and complete the PECL with regard to the lacking EC law developed slightly further than just filling the gaps in the PECL. The new idea was to apply the method developed by the Lando Commission to address the many individual pieces of EC legislation and to elaborate standalone 'Principles of the Existing EC Private Law'. These 'acquis principles' were not meant to become a competitor to the PECL. The PECL were just used as a kind of standard, especially with respect to matters of structure and style of formulation. By contrast, the ACQP have been drafted for a different purpose. Their core function was to illustrate the current state of EC private law. The ACQP were developed to inform the reader of what already exists in the vast areas of EC law. Thus, the Acquis Group's first task was to take stock of matters - i.e., to harvest provisions and cases with relevance for private law, contract law in particular, from the many different areas of EC law. As the quantity of EC law was wider than expected, for reasons of practicability a choice had to be made on what to include in the work. It was decided that the ACQP should concentrate first on matters closely related to general contract law and, thus, partly mirror the PECL, in particular its Parts I and II.
The next step was to arrange the rules contained in the material harvested from EC law into systematic principles that illustrate commonalities and underlying ideas of the rather incoherent individual pieces of EC law. The core element of the ACQP is the commentaries, where one can read, with regard to each rule, which individual directives or other parts of the body of EC materials lie behind the rule. The main function of the rules is to form 'hangers', hooks on which the relevant EC law can be placed. In this way, the ACQP were to create a new gateway to the existing EC private law.
The Acquis Group generated general principles from the individual rules and cases that formed the existing EC law. These individual rules were found in...