Integration of the European Developments in Private Law into the Domestic Civil Law: Factors Framing the Reception of the DCFR in Romania

• Author: Mónika Józon
• Position: Junior Associate Professor, Sapientia-Hungarian University of Transylvania
• Pages: 156-165

Mónika Józon

Junior Associate Professor, Sapientia-Hungarian University of Transylvania

Integration of the European Developments in Private Law into the Domestic Civil Law: Factors Framing the Reception of the DCFR in Romania

1. Introduction

The reform of private law took a different shape in Romania from how it proceeded in most Western European and Central-Eastern European Member States of the EU over the past two decades under the influence of the acquis communautaire and of the various European projects aimed at the unification of private law in Europe. However, civil law both in the western and eastern parts of Europe is indeed one of the most conservative fields of law, which copes in different ways and to differing extent with the disintegrative effect of the private law acquis on the unity of private law thinking, on the basis of the primacy of the respective civil codes. The reception of soft law and legal scholarship in the area of unification of private law is thus a more or less speedy process, mostly depending on the involvement of the national legal scholarship rather than on legislative measures that are policy-guided.

The literature reviewed for the purposes of writing this paper, including the leading Romanian tort law and contract law commentaries, casebooks, and course books published in 2005-2007, shows a lack of acknowledgement and involvement by leading academics in the process of internalisation of the concept and solutions of the CFR into domestic civil law¹. Not one single mention can be found of this European undertaking in these reference books, and the private law acquis in general is not presented or debated in the civil law literature. The only exception is a leading course book on civil law contracts, published by a distinguished legal scholar, who presents the Community legislation on consumer law in the context of civil law contracts and makes a few references to the Principles of European Contract Law². Therefore, it would be unrealistic and too early to speak in Romania about the role of academic scholarship in pursuing European soft-law solutions within the framework of the reform of the civil law. Scholarship framing debate on European unification of civil law, which would assist and guide legislative policy and the judiciary, is still missing in Romania. The situation does not differ much at the level of legislative policy. The most obvious example is that both the 2004 draft and the recently completed second draft Cod Civil (new civil code) prepared by legal scholars did not consider the ongoing CFR project as a reference work.

The assimilative capacity of Western European or of other Central-Eastern European jurisdictions to integrate European soft law vary, depending on the main characteristics of the domestic legal culture, and especially of the judicial culture, which reacts differently to soft law and legal projects such as the CFR. Therefore, in those countries, such as Romania, where the private law culture is reluctant to embrace non-binding law and legal projects/scholarship, since it is characterised by strong legal positivism and textualism, we won't find the solutions of the DCFR integrated into legal acts or in court decisions, as, in its current form, the DCFR integrates both hard-law and soft-law elements developed through various European initiatives on unification of private law. There are also legal-cultural reasons behind the current state of Romanian legal literature on European soft-law developments in private law. The unity of the Cod Civil's approach is not questioned and challenged by legal scholars. This is how the vicious circle of influences of legislative policy, legal scholarship, and judiciary works, and how it makes the elaboration of comparative studies based on a functional approach difficult in many Central-Eastern European countries. However, it is the primary task of legal scholarship to break the vicious circle and effectively assist makers of legislative policy and the judiciary to prepare to respond with workable solutions to the new regulatory needs of private law both in substance and in terms of legislative technique/legal drafting methodology. Romania only joined the EU in 2007, and thus it may not yet sufficiently feel the influence of EC law on legal theory. Sources of law and the balance between hard and soft law in private law were not reconsidered under the influence of EC law. This is why, as will be seen in Section 3, there was a kind of indirect reception of some elements to be found also in the current version of the DCFR, but one can identify in Romanian private law only those provisions that were approached by the DCFR from the community acquis on consumer law (hard law).

A second factor framing the assimilative capacity of Romanian private law to integrate European soft law is the reform strategy itself. The reform of private law in Romania takes place along three strategy lines, which do not perfectly converge and often give rise to contradictory discourses in doctrine and case law: i) the reform of the Cod Civil, an ongoing process since 1999 (the main models used are the Quebec Code Civile as the most recent code, the French Code Civil, and the Swiss Cod Civile); ii) the implementation of the acquis communautaire on consumer law, which is perceived as more of an external conditional element related to EU accession and membership than as addressing an internal regulatory need for consumer law provisions; and iii) the influence of French doctrine and case law, which continues to be the strongest determining factor, with strong historical roots. Soft law and European projects such as the CFR seem to have remained outside the confluence of the diverging strategy lines that frame the development of civil law in Romania.

The strongest influence on Romanian civil law comes from French law, far outweighing the influence of EC consumer law. This is first of all because the comparative studies mainly focus on French law. The ongoing doctrinal discussion in Romanian private law is mainly led by references to the French doctrine and case law. However, the situation is different in tort law and contract law. Whereas contract law is more open to non-French solutions and illustrates developments of German law and some of the solutions of other European jurisdictions, the national tort law remains more conservative and presents almost exclusively the developments of French law. Comparative studies are rather formalistic in approach and usually are limited to an objective presentation of the foreign solutions without a critical assessment of the domestic law or of the foreign solutions. It is also worth mentioning the phenomenon in case law as concerns the divide between tort and contract law. Although tort law scholarship is more conservative in approach, tort law jurisprudence was more open to developing new law, and more ambitious in this regard, than contract law was in the past two decades.

The dominant influence of French civil law on the development of Romanian private law has a strong legal historical background. The Romanian Cod Civil was adopted in 1864 (entered into force in 1865) and imported most of its provisions from the French Code Civil. Some influence from the Italian Codice Civile and the Belgian Code Civile of 1851 are also to be found in the Romanian civil code. From a legal cultural point of view, the systemic connection of Romanian civil law thinking to the French Civil Code 'tradition' has always been strongly stressed. This is why most legal scholars continued to look toward the solutions of French civil law. In 1945-1990, the evolution of Romanian civil law took a wildly different approach, but even during Communist times certain solutions of French doctrine and case law were adapted to the Romanian legal policy of those times, and the provisions of the Cod Civil survived that period mainly untouched.

Romania was always reluctant to touch the unity of the Cod Civil. The reform of the civil law after 1990 took place in the form of special laws, these prevailing the provisions of the Cod Civil. This is reflected also at doctrinal level. The private law acquis transposed into the Romanian law is considered to be part of commercial law as consumer law rather than part of the civil law. This is one of the possible explanations behind the missing references in civil law publications to European developments aimed at unification of private law.

The focus of this paper is on the factors that frame the assimilative capacity of Romanian private law in the search for explanations for the current situation, with the hope that this work can offer useful insight into the private law culture. Limited by the constraints presented above, Section 2 of this paper presents the most significant novelties of the 2004 draft of the new Cod Civil in light of the regulatory values pursued by the DCFR, whereas Section 3 offers a critical assessment of the Romanian strategy in the implementation of EC consumer law in the domestic law.

2. The Draft Cod Civil and the Common Frame of Reference

In 2004, a draft of the new Cod Civil was 'finalised' and adopted by the Romanian Senate but not by the Chamber of Deputies³. This draft aims to adapt the main civil law institutions to the needs of a market economy and to realign the Cod Civil with European developments in private law. However, a new working group, entrusted with the task of preparing further amendments to the 2004 draft, was set up in 2006. The new draft has not yet been made public and...