Walter van Gerven
Professor emeritus, Katholieke Universiteit Leuven, University of Maastricht and University of Tilburg
The Open Method of Convergence
Much has been written about European harmonisation, even unification, of comprehensive parts of private law, particularly in that field of the law of obligations including consumer law. Contrariwise, little attention has been given to convergence of differences in laws, legal mentalities, and methodologies, and to educating and stimulating lawyers to understand those differences and make them converge. That comes as even more of a surprise in view of the fact that there is no legal basis in the European Treaties to allow the European institutions to adopt comprehensive uniform legislation, or codification, of private law 1 - meaning that it can only be achieved by concluding an international agreement among the now 27 EU Member States - while there is a legal basis in article 149 (1) of the EC Treaty for developing quality education, and a duty for the Community (expressed by the word 'shall') to act accordingly. That means, in particular, according to article 149 (2), that the Community shall develop the European dimension in education "by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content of teaching and the organisation of education systems and their cultural and linguistic diversity".
In the long run, education is indeed the best, if not the only, way to build sufficient legal cohesion to bring laws together in areas such as private law for which the European institutions do not have regulatory competencies, and to keep them together in areas, such as consumer law, for which they have, and have exercised, regulatory competencies. Only through educating and teaching lawyers from different Member States to understand one another's legal systems, mentalities, and methodologies will it be possible to lay the foundations for a convergence of minds and laws that will allow uniform laws, if and where needed, to stick together. Comparative law courses at universities are essential in that regard but do not suffice, as they come in too early a stage of one's professional life. More rewarding is to stimulate contacts throughout the EU between agents of the law, of whatever age or rank and in whatever capacity they act. In the words of German legal historian Coing, recalling the formation of our common legal heritage in the Age of Enlightenment, "It was academic training based on European ideas that created a class of lawyers animated by the same ideas, and it was the European lawyer who preceded the European law." 2 To lay such foundations and to promote this convergence of minds, mentalities, and methodologies, and of laws, we need to put in place a common framework for reference and teaching, as advocated in the first issue of the European Journal of Legal Education (2004), or, in terms of new methods of governance, an open method of convergence as will be expounded upon hereinafter.
Differences in legal mentality certainly exist. They have been admirably described by R. C. van Caenegem in lectures held in Cambridge, published under the title Judges, Legislators and Professors3. In these lectures, van Caenegem compares the peculiarities of English, French, and German law, the first being judge-made law; the second being shaped by legislation; and the third bearing the imprint of scholarly, Pandectist, learning.
Anyone who wonders whether these differences in legal mentality still exist should compare judgments of the House of Lords with those of the French Cour de cassation and of the German Bundesgerichtshof. Only in a common-law system is it possible for a judge to say in his decision that "[t]he state of a man's mind is as much a fact as the state of his digestion" 4 or, more prosaically (and more recently), is it possible for a Law Lord to express himself on a delicate issue of 'wrongful life' in the following terms: "I have not consulted my fellow travellers on the London Underground but I am firmly of the view that an overwhelming number [...] would answer the question with an emphatic No." 5 By contrast, who would contradict the famous American judge Cardozo when he describes the decisional practice of German judges as "march[ing] at times to pitiless conclusions under the prod of a remorseless logic which is supposed to leave no alternative"? 6 And, as Cartesian as French judges may be, that does not show in the cryptic judgments of the Cour de cassation, which, following the style of legislative pronouncements, expresses its opinion with a minimum of justification or explanation. All in all, English judgments continue to reflect the spoken language of a judge sitting on the bench, whilst German judgments continue to resemble highly reasoned academic legal writings, and French judgments continue to be formulated in the same authoritative way as statutes promulgated by a legislature. Each of these judicial styles reflects the mentality characteristic of judges, legislators, and professors, as described in van Caenegem's legal narrative - that is, characteristic of, respectively, judge-made law, codified law, and scholarly law. These characteristics of style are the result of deep-rooted differences between the three legal traditions embodied in case-oriented English law, rule-oriented French law, and concept-oriented German law.
To be sure, with the times, these differences tend to diminish between the EU Member States' legal systems in consequence of the growing body of Community rules and case law7. But that applies only to a limited field of the law - i.e., in areas for which the Member States have conferred competencies upon the Union (see articles 5 and 7 of the EC Treaty) - and does not affect the vast areas that remain within the sole jurisdiction of the Member States. Nor do these rules and case law change the foundational differences in mentalities and methodologies between the major legal families as represented by the English, French, and German legal systems, differences that, in turn, are responsible for other attitudinal differences. Two of them are the attitude these legal families adopt vis-à-vis binding legislation - more specifically, (the desirability of) codification - and the different ways in which lawyers are trained (doctrinal or informal) as well as the teaching materials used for this teaching (textbooks or casebooks)8.
So far, the European Commission has focused its harmonisation efforts in the field of private law on contract law in general9. That, in itself, is a remarkable choice: general contract law is supplementary law that can be set aside by contracting parties if they wish; moreover, it has not been the object of much creative case law on the part of the Community courts10. From that viewpoint, tort law might have been a better choice11. Be that as it may, following public consultation, the commission has abandoned its original idea of unifying general contract law and has now opted for a common frame of reference, and (possibly) for an optional code - which is more in line with the principle of party autonomy in the field of contract law. Obviously, one of the reasons for this policy change is, as mentioned, the absence of a legal basis in EC Treaty law to regulate contractual relations in general12. Because of this lack of general competence, Community law must focus on specific subject matter (mainly consumer law) for which the Community has certain limited (and often incoherent) competencies. That situation is responsible for the 'patchwork' appearance of Community legislation in relation to matters of private law and, therefore, also of the case law of Community and national courts interpreting EC legislation and implementing national laws in this area and others.
Apart from absence of a legal basis, there is another factor militating against (excessive) uniformity of laws, which is that uniformity should not be an objective in itself, because it is not, of itself, a higher good than diversity is. Having regard to the great diversity of the legal families within the EU, and their cultural and linguistic environment, and therefore the resources needed to bring codification to its end, uniformity and unification should occur only when there is good justification for it13. Within the framework of EC law, such justification for uniformity consists mainly in the necessity to create and operate an internal market with a (sufficiently) level playing field, which implies the elimination of concrete legal impediments in the laws of the Member States. More particularly, apart from the necessity to set aside such specific legal impediments related to the functioning of the internal market, as a general rule there will be no justification for harmonisation concerning matters that touch closely on national identity or culture, including legal culture, or other matters of national interest for which Member States are not (yet) prepared to adopt common legislation14. To bring the instruments addressing those matters closer to each other, more appropriate mechanisms have to be put in place than the traditional method of binding legislation. That is where the concept of convergence comes in, which is understood here as including not only approximation of laws through institutionalised legislative and...