The Launch of the Draft Common Frame of Reference

• Author: Christian von Bar
• Position: 4-9

Christian von Bar

Professor, University of Osnabrück

The Launch of the Draft Common Frame of Reference

1. The interim outline edition as a first step

Two months after the Tartu conference of 15 November 2007 on 'Developments in European Law: European Initiatives (CFR) and Reform of Civil Law in New Member States', the academic draft of that Common Frame of Reference (CFR) has now seen the light of day¹. The teams of researchers that in 2005 contracted with the European Commission to deliver by the end of 2007 a first proposal have managed to keep their promise. On 21 January, at a launch in the European Parliament, the interim outline edition of the Draft CFR (DCFR) was presented in book form to the Legal Affairs Committee of the European Parliament and to the European Presidency, which was represented by Slovenian Minister of Justice Professor Lovro turm. Our publishers, Patrick Sellier and his team, had produced a preliminary (proof) version of the book in less than four weeks. The editors of the DCFR had already sent huge electronic files to the European Commission in the last days of the previous year; these turned out to be too big for a simple e-mail attachment, so copies had to be sent burned onto a DVD. Their contents were meant to be uploaded in part to the Commission's CIRCA Web site, but even this proved difficult, and it took weeks before that actually happened.

In book form, the DCFR is being published first in an interim outline edition. That edition does not yet contain comments and notes, and it is also not complete in its section setting out the model rules. This is so because model rules concerning some specific contract types (such as loans and donations) are still missing, as are all the model rules on those matters of property law that we intend to cover in the full and final edition: acquisition and loss of ownership in movables, proprietary security rights in movable assets, and trust law.

The European Commission has already received an extensive and illustrative commentary to all the model rules contained in the interim outline edition, and we have also submitted to the commission all the comparative material that so far we have been able to collect and present in the notes - all in all (articles, comments, and notes) some 4,000 pages. The comments are available to every member of the CFR network who has access to the Commission's CIRCA Web site. The notes, however, are not for publication yet: on account of lack of time, it was impossible to edit them in a way that would meet international standards for publication. The model rules that are still outstanding, all comments, and the completed and properly edited notes will therefore appear in book form only as part of the full and final edition, which should emerge by the middle of 2009. Work on that 'master copy', as we call it, began immediately after the Christmas break. The full and final edition will be accompanied by a second edition of the paperback 'rules only' version. Its first edition and its successor edition (which we expect to be released to the public around February or March 2009 and which we hope to present as a bilingual - English and French - text) are meant to facilitate discussion and decision-making. The aspiration behind the first paperback is that it will elicit responses and criticisms in time for them to be taken into account in this year's preparation of the full edition. Some constructive and helpful comments have already reached us, immediately following publication of the DCFR Interim Outline Edition on the Internet².

We hope that such proposals for improvement will reach us throughout 2008. Many conferences on the DCFR are being planned, amongst them a conference in Ljubljana in April 2008 designed as a follow-up conference to the earlier meetings in London (2005), Vienna (2006), and Stuttgart (2007). As did its UK, Austrian, and German predecessors, the Slovenian EU presidency is paying considerable attention to the work being carried out on the CFR. The French presidency too will organise a discussion forum on the DCFR, to be held later in the year in Paris. Further meetings will be held in the ERA facilities in Trier, in Edinburgh, in Münster and Osnabrück, and in many other places. The research network is doing its utmost to exchange views on the DCFR with as many interested jurists as can be reached. However, the timetable for the finalisation of the full and final edition is very tight. The work has to be completed by the end of 2008, and as this huge work requires much further drafting and vast editorial labour it will be impossible to consider any contributions from stakeholders and other colleagues that come to our knowledge after September 2008.

Although this should go without saying, the editors and all of the academic contributors to the DCFR stress yet again that the DCFR is an academic and not a politically authorised text. It had its origin in an initiative of legal scholars, and it amounts to the compression into rule form of decades of independent research and co-operation by academics from all over Europe³. It all started in 1982 with the foundation of the Commission on European Contract Law (the 'Lando Commission'). The latter was succeeded in 1998 by the Study Group on a European Civil Code (SGECC), which in 2005 founded, in collaboration with the then newly established 'Acquis Group' and some further teams, a joint research network under the Sixth European Research Framework Programme⁴. We cannot say whether - and, if so, with what content, structure, and coverage - our DCFR (or some of its parts) will be turned into an official or 'political' CFR or even, in the form of an 'Optional Instrument', into applicable law⁵. These are decisions that do not lie in our hands. The creation of a CFR (and the creation of an Optional Instrument) are questions for the European institutions.

We do, however, hope for their support and that our texts will be read and discussed with care, intellectually, emotionally, and politically. The bare fact that something is now being 'laid on the table' should constitute an important difference from previous discussions because in the latter, not yet focused on a concrete text, some unnecessarily sharp voices with a sort of national undertone for quite a while created a difficult atmosphere. Too many felt that they were not sufficiently informed and involved. Now everybody is in a position to evaluate our interim results and to express views on them, and we are more than ready to consider proposals for the improvement of the DCFR. The creation of the CFR has now become a concrete political option. All that we researchers ask for is a constructive public discussion of our first draft. A chance such as this to promote European private law will not come every year, and Europe's private law community should not let it pass for lack of courage or determination.

2. Definitions: The emergence of a rule-based common European legal terminology

Apart from an introduction and some tables and indices, the DCFR Interim Outline Edition contains, as its title explains, principles, definitions, and model rules of European private law. This complies with the scheme set out in the European Commission's communications of 2003 ⁶ and 2004 ⁷ and our agreement with the commission⁸.

The purpose of 'definitions' seems self-evident. They are part of the so-called 'toolbox function' assigned to the CFR and serve as suggestions for the development of a uniform European legal terminology. DCFR I.-1:103 (1), therefore, expressly incorporates the list of terminology in Annex 1 as part of the DCFR⁹. This drafting technique, by which the definitions are set out in an appendage to the model rules ¹⁰ , was chosen in order to keep the first book ('General Provisions')...