Effect of Harmonisation of European Civil Law on Development of Estonian Law of Obligations

• Author: Irene Kull
• Pages: 98-102

Irene Kull

Effect of Harmonisation of European Civil Law on Development of Estonian Law of Obligations

The completion of an efficiently functioning single market in Europe depends largely on the extent to which the substantial rules of private law of the European Economic Area countries can be harmonised. Rules in different fields of private law have already been harmonised by different measures, of which particular importance should be attributed to the establishment of EU regulations and directives having an impact on the national law of the EC countries, preparation of conventions and recommendations, harmonisation of the substantive law (known in the American legal system as "restatements of law") and the preparation of recommendatory rules as made by UNIDROIT and the Commission on European Contract Law¹. In addition to the European legal integration methods that have already been in use, the idea of establishing a European Civil Code² has been gaining more and more strength. Preparation of a European Civil Code would mean a wider harmonisation of private law than has been so far attempted in creating the European single economic market and meeting the objectives of the Treaty on European Union. In the opinion of the advocates of the idea, the European Civil Code should definitely contain the matters presently included in the commercial codes of European countries. Such fields as family and succession law are probably the least prepared for harmonisation, although a basis could be found in the European Declaration on Human Rights³. In order to ensure legal security in transactions between European countries, importance equal to that of the creation of a single private law has been attributed to the unification of international private law⁴. Certainly, the harmonisation of private law will give rise to problems of principal as well as of a formal nature. For example, it has been found that Article 100A of the EU Treaty is not an appropriate foundation on which to base unification of the whole civil law because not all fields included in the unification are related to competition restrictions. Moreover, there has been concern that dismantling historically developed private law principles by means of directives would prejudice national legal systems. Therefore, it has been suggested that a new EC competence should be found in order to unify the whole private law by codification, that would result in a recommendatory European civil code for Member States⁵. Principal problems with regard to the harmonisation of private law of the EC Member States are primarily associated with the tendency of European law to evolve into a form that remains consistent with the Roman and canon law. Thus, the harmonisation would be aimed at achieving ius commune approved by all countries and lawyers⁶.

A further objective of the unification of the European private law is the preparation of a single civil code, which would be based on principles acceptable to all European countries and which should thus diminish the principal differences in the law that nowadays underlie the differentiation between legal systems. Amendment of adopted laws and the adoption of new laws is going on in all European countries. The Netherlands have taken a very important step in developing the legal system, by adopting a new civil code (1992), thereby giving a lead to other countries who are planning a codification or a modification of obsolete fundamental principles in their legal systems. The rapid legal development and re-codification of private law in Eastern Europe may also be of interest and in a certain sense even edifying for the Western European countries - as re-codification is often aimed at unifying the best solutions of different legal systems, taking into account the overall tendencies of legal development in European countries and following the requirements provided to the national law by the EC legislation. All these factors have given cause to believe that in order to start the preparation of a European civil code, it is necessary to have knowledge of, and to be aware of the lessons to be learnt from East-European codification⁷.

During the last five years, Estonian private law has been developing very rapidly. Changes in the social organisation have given rise to the need to reassess the whole body of private law and adopt laws in accordance with the development of civil law in the rest of the world and with the actual needs of the society. Changes in private law have taken place not only in the form of adopting new laws, but the fields of legal regulation and the principles of regulation have also changed substantially. The adoption of so many new Acts during such a short time has not been conducive to legislative stability. However, the rapid adoption of legislation has made a positive impact on the development of the economy and indeed the whole society.

Presently, codification of private law is taking place in Estonia, aimed at drawing up a five-book civil code, as in the German Civil Code (Bürgerliches Gesetzbuch). Estonian private law is traditionally based on codified law. In 1992, the Riigikogu decided to use pre-1940 Estonian legislation as a basis for creating the Estonian legal system. The preparation of the civil code has been based on the draft Civil Code, which could not be adopted due to the occupation of Estonia in 1940. By now, four of the five volumes of the future Civil Code have been adopted in the form of Acts. The Law of Property Act was completed first (passed on 9 June 1993 and coming into force on 1 December 1993)⁸. The next proposed was the Family Act, passed on 12 October 1994 and coming into force on 1 January 1995⁹. The General Principles of the Civil Code Act was passed on 12 June 1994 (and came into force on 1 September 1994)¹⁰, and the Law of Succession Act was passed on 15 May 1996 (and came into force on 1 January 1997)¹¹. The Law of Obligations Act is currently being prepared and should be completed by the end of 1998. Obligation relationships are currently regulated under the Estonian S.S.R. Civil Code (which entered into force in 1965) Part III, which is also the last remaining part of the civil code based on the Soviet civil legislation. In principal matters, obligation relationships are unregulated at the level of law since the civil code of Soviet origin does not cover the complete area of obligation relationships and lacks appropriate and adequate regulation.

The preparation of the Law of...