Christian von Bar1
Professor, University of Osnabrück, Chairman of the Study on a European Civil Code
Working Together Toward a Common Frame of Reference
This year's December meeting of the Study Group on a European Civil Code2 is taking place in Tartu because there are colleagues in this country whose organisational abilities are beyond comparison. Whilst at the 2004 December meeting in Milan, I spoke with Professor Paul Varul during the morning coffee break and wondered whether he could accept the 50 members of the Co-ordinating Group at his university in a year's time. By lunchtime on the same day, he had said to me that it was as good as arranged! It would be a dream if we were as successful as Professor Varul in dealing with the themes of the forthcoming working week - renting of movables, loan contracts, real securities, tort law, unjustified enrichment law, and problems relating to the drafting of our proposal for a common frame of reference. We are grateful for the privilege of being here!
After Professor Beale has explained to you the significant stages of our work leading up to the establishment of the so-called Network of Excellence 'Common Principles of European Contract Law' under the Sixth Research Framework Programme of the EU3, it falls to me to speak on the current situation and some of the difficulties we are now facing. Whilst preparing my short submission, I wondered whether I should add a question mark to its title, 'Working Together Toward a Common Frame of Reference'. This was because by no means everybody seems ready to constructively play a part in the development of this common frame of reference. We have had to deal with a significant number of very critical voices. It is part of my role, however, to spread optimism, and that, despite all of the bumps in the road, I mention that I would like it not to be forgotten how exciting it is to witness the creation of a new jus commune europaeum.
The modern documents of the constitutional organs of the Community regarding the ongoing work on the Common Frame of Reference document succinctly and cleanly divide the participants into two distinct groups, namely 'stakeholders' and 'researchers'. Above them - divide et impera - is the European Commission, which for its part is involved with several Directorates-General (those for research, the internal market, and consumer protection), whose interests and hopes can prove difficult to marry. Apart from this, it also has to co?operate with the European Parliament, with the Council, and with the member states' governments, which also can lead to abrupt changes in the aims and goals.
In any event, we, the Study Group on a European Civil Code4, belong to the group identified as 'the researchers'. This could - and I hope I am mistaken - prove to be politically 'helpful', as such an identification, if necessary, can also isolate us. Should the project fail, or should the results of our work not concur with what at that time would be politically opportune, then it would be easy to dismiss our results as being 'too academic'. The game has already begun. Legal scholars are, however, not a homogeneous group that follows orders but are, rather, highly individual minds, which do not allow themselves to be easily forced into administrative structures. They are also, incidentally, 'stakeholders', in the sense that they feel co-responsible for the quality of European private law. The classification of us according to specific groups could be even more problematic if one thinks of the many academics who critically or benevolently observe the process of the Europeanisation of private law. They appear to have been given the role of onlookers, which hardly contributes to our popularity amongst our colleagues.
What do we actually do? The Study Group on a European Civil Code was founded in 1999 and is the successor to the Commission on European Contract law, known all over the world as the Lando Commission. The Study Group has taken upon itself the task of drafting common European principles for the most important aspects of the law of obligations and for certain parts of the law of movable property that are especially relevant for the functioning of the common market. The two groups pursue(d) identical aims. However, the Study Group has a more far-reaching focus in terms of subject matter. Both groups have undertaken to ascertain and formulate European standards of 'patrimonial' law for the member states of the European Union. The Commission on European Contract Law has already achieved this for the field of general contract law5. Its Principles of European Contract Law (PECL)6 are being adopted with adjustments by the Study Group on a European Civil Code to take account of new developments and input from its research partners. The Study Group is itself dovetailing its principles with those of the PECL, extending their encapsulation of standards of patrimonial law in three directions: (i) by developing rules for specific types of contracts; (ii) by developing rules for extra-contractual obligations - i.e., the law of tort/delict, the law of unjustified enrichment, and the law on benevolent intervention in another's affairs (negotiorum gestio) - and (iii) by developing rules for fundamental questions in the law on mobile assets - in particular, transfer of ownership and security for credit. We have undertaken this endeavour on our own personal initiative. We have always taken care to identify the legal position of the member states of the European Union and to set out the results of this research in the introductions and notes. That, of course, does not mean that we have only been concerned with documenting the pool of shared legal values or that we simply adopted the majority position among the legal systems where common ground was missing. Rather we have consistently striven to draw up 'sound and fitting' principles; that is to say, we have also recurrently developed proposals and concepts for the further development of private law in Europe. Each part of the project was the subject of debate on manifold occasions, some stretching over many years. Where a unanimous opinion could not be achieved, majority votes were taken. As far as possible, the articles drafted in English were translated into the other languages either by members of the team or by third parties commissioned for the purpose.
The first volumes of the findings of the Study Group have in the meantime gone to print, with more on the way. In order to leave no room for misunderstanding, it is important to stress that these principles have been prepared by impartial and independent-minded scholars whose sole interest has been their devotion to the subject matter. None of us have been rewarded for taking part or mandated to do so. None of us would want to give the impression that we claim any political legitimisation for promoting harmonisation of the law. Our legitimisation is confined to curiosity and an interest in Europe. In other words, the volumes in the Study Group on a European Civil Code series are to be understood exclusively as the results of scholarly legal research within large international teams. Like every other scholarly legal work, they restate the current law and introduce possible models for its further development, no less but also no more. We are not a homogenous group whose every member is an advocate of the idea of a European Civil Code. We are, after all, only a study group. The question of whether a European Civil Code is or is not desirable is a political one on which each member can only express an individual view.
Were it not for the political developments, what we do and the reason we have gathered here in Tartu would, therefore, be by all means unspectacular. I personally would have been happier had we had longer, in peace and without outside pressures, to discuss our principles, comments, and notes. Things should have proceeded differently. Coincidentally, at practically the same time as the Study Group first met in 1999 in the Dutch city of Utrecht, the European heads of government convened in the Finnish city of Tampere, where they decided, among other things, that 'in a true European area of justice, individuals and businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal systems in the Member States'. The conclusions of this summit were summarised in Chapter VII (Greater Convergence in the Area of Civil Law) under paragraph 39, with the declarative statement that 'as regards substantive law, an overall study is requested on the need to approximate Member States' legislation in civil matters in order to eliminate obstacles to the good functioning of civil proceedings'7. Suddenly and without us having any conscious part in the ignition, the wheels of motion had started on a political level. From then on, the work progressed from strength to strength. Numerous resolutions of the European Parliament8, a range of important communications of the European Commission9, a further summit of the Council (Brussels 200410), positive statements and comments from individual heads of government11, and common and decided governmental declarations12 were formulated, sometimes in interplay13 with ideas proposed by the Commission on European Contract Law and the Study Group on a European Civil Code14.
It is in the context of...