European Private Law After the Common Frame of Reference: What Future for European Private Law

279 Pages·2010·1.24 MB·English

by  Hans-W Micklitz

European Private Law after the Common Frame
of Reference

European Private Law
after the Common
Frame of Reference
Edited by
Hans-W. Micklitz
European University Institute, Italy
Fabrizio Cafaggi
European University Institute, Italy
Edward Elgar
Cheltenham, UK • Northampton, MA, USA
©The Editors and Contributors Severally 2010
All rights reserved. No part of this publication may be reproduced, stored in a
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Acatalogue record for this book is available from the British Library
Library of Congress Control Number: 2009937921
ISBN 978 1 84844 407 2
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Printed and bound by MPG Books Group, UK
2
0
Contents
List of contributors vii
Introduction Hans-W. Micklitz and Fabrizio Cafaggi viii
1. Towards a European private law? The Common Frame of
Reference in the conflict between EC law and national laws 1
Alessandro Somma
2. The interpretation according to human rights, fundamental
freedoms and constitutional laws (art. 1:102 DCFR) 24
Giuseppe Vettori
3. The role of competition in the European codification process 36
Stefan Grundmann
4. The public/private divide in European law 56
Norbert Reich
5. The Draft Common Frame of Reference: how to improve it? 90
Jan M. Smits
6. The empirical missing links in the Draft Common Frame
of Reference 101
Fernando Gomez
7. Aspontaneous order for Europe? Why Hayek’s libertarianism
is not the right way forward for European private law 123
Martijn W. Hesselink
8. The authority of an academic ‘Draft Common Frame of
Reference’ 147
Nils Jansen
9. Legal innovation in European contract law: within and
beyond the (Draft) Common Frame of Reference 173
Florian Möslein
v
vi European private law after the Common Frame of Reference
10. Fitting the frame: an optional instrument, party choice
and mandatory/default rules 201
Horatia Muir Watt and Ruth Sefton-Green
Index 221
Contributors
Fabrizio Cafaggi, European University Institute, Italy.
Fernando Gomez, Professor of Law and Economics, Universitat Pompeu
Fabra, Spain.
Stefan Grundmann, Professor for Private Law, European and International
Private and Business Law, Humboldt University, Germany.
Martijn W. Hesselink, Professor of European Private Law and Director of the
Centre for the Study of European Contract Law, Universiteit van Amsterdam,
the Netherlands.
Nils Jansen, Professor of Roman Law, Legal History and European Private
Law and Director at the Institut für Rechtsgeschichte, Westfälische Wilhelms-
University, Münster, Germany.
Hans-W. Micklitz, European University Institute, Italy.
Florian Möslein, Senior Research Fellow, Faculty of Law, Humboldt
University.
Horatia MuirWatt, Professor, Global and Comparative Legal Studies, Law
School, Sciences-Po, Paris, France.
Norbert Reich, Professor Emeritus, University of Bremen, Germany; Dr. h.c.,
University of Helsinki, Finland; and Braudel Senior Fellow at the European
University Institute, Florence, Italy (January–May 2009).
Ruth Sefton-Green, Maître de conférences, Université Paris 1 (Panthéon-
Sorbonne), UMR de droit comparé de Paris, France.
Jan M. Smits, Professor of European Private Law and Comparative Law,
Tilburg University, the Netherlands and Visiting Professor of Comparative
Legal Studies, University of Helsinki, Finland.
Alessandro Somma, Professor, University of Ferrara, Italy.
Giuseppe Vettori, Professor in Civil Law, Florence University, Italy.
vii
Introduction
Hans-W. Micklitz and Fabrizio Cafaggi
I. AFTER THE CFR – APLEAFOR ASECOND
GENERATION OF RESEARCH
The heading of the book reflects the future programme of research in
European private law. The draft version of the so-called ‘Academic’ Draft
Common Frame of Reference1is not even two years old and it seems as if at
least the ‘Political’Draft Common Frame of Reference is dead. The mandate
of the European Parliament and the European Commission has expired in
2009 and no one knows to what extent the then elected new European
Parliament is again willing to push the European Commission to transform the
Academic DCFR into a political tool. What remains, however, is the academic
input from the study group and the acquisgroup, merged in the DCFR.
The DCFR and the authors deserve respect and praise for having accom-
plished such a huge task in such a short time. The DCFR contributed to change
the legal landscape in European private law. One might even go as far as argu-
ing that there is a particular European legal field.2 The most far-reaching
importance of the DCFR is only about to become clear. The DCFR has estab-
lished a network of more than 200 researchers who will continue to enrich
academic exchange far beyond the mandate given by the European
Commission, in particular in Eastern Europe.3The set of rules laid down in the
DCFR are a most valuable tool for interesting solutions. Each and every
researcher working in that field will have to take them into account when
discussing his or her opinion.4
1 See R. Schulze, ‘The Academic Draft of the CFR and the EC Contract Law’,
in R. Schulze (ed.), Common Frame of Reference and Existing EC Contract Law
(2008), p. 3.
2 See for a first attempt to structure the European legal field in private law
matters, H.-W. Micklitz, ‘The European Legal Field in Private Law Matters’, in B. de
Witte and Antoine Vauchez (eds.), The European Legal Field(forthcoming, 2009).
3 See the diverse contributions of the Tartu conference held in November 2007.
The results are published in Juridica International, Law Review University of Tartu
(2008).
4 Such as in the field of consumer contract law or anti-discrimination, see
viii
Introduction ix
This book should be understood as an attempt to pave the way for and to
initiate second generation researchin European private law subsequent to the
DCFR. It is, however, not discussing the dogmatics of the various proposed
solution – its pros and cons and compatibilities or incompatibilities with
particular national concepts,5nor the most far-reaching question of whether a
European Civil Code in any form is needed in a global political and economic
environment where private law is getting ever more extra-territorialised.6This
book takes a middle range theoretical perspective. It aims at giving a voice to
the growing dissatisfaction7in academic discourse that the DCFR as it stands
in 2009 does not represent available knowledge as to the possible future of
European private law. The theoretical level is therefore middle range, focusing
on the legitimacy of law-making through academics now and in the future and
on possible conceptual choices in the future European private law.
In the light of the experience gained through the DCFR the authors advo-
cate the competition of ideas and concepts. In less than six months the DCFR
has turned from a political academic draft into a true academic project which
has to withstand academic discourse. The DCFR stands side by side with
the Principles of European Contract Law,8 the Gandolfi-Project, the work of
the Trento Group,9 the Principles of European Tort Law (PETL)10 and the
European Insurance Group.11This reduction in status, if it is one – or is it an
upgrade? – will facilitate academic debate over the future European private
H.-W. Micklitz and N. Reich, ‘Crónica de una muerte anunciada: The Commission
Proposal for a “Directive on Consumer Rights”’, 47 Common Market Law Review,
(2009), 471.
5 This discussion will take place and it already takes place at various levels.
6 R. Michaels and N. Jansen, ‘Private Law Beyond the State? Europeanization,
Globalization, Privatization’, 54 American Journal of Comparative Law(2006), 843.
7 See M. Hesselink who is a member of the study group, but formulated a
strong plea for a true democratic debate of the ‘academic’rules.
8 Ole Lando and Hugh Beale (eds.), Principles of European Contract Law,
Parts I and II(2000).
9 M. Reimann, ‘Of Products and Process – The First Six Trento Volumes and
Their Making’, in M. Bussani and H. Mattei (eds.), Opening Up European Law, The
Common Core Project towards Eastern and South Eastern Europe(2007), p. 83.
10 European Group of Tort Law (eds.), Principles of European Tort Law, Text
and Commentary(2005), see Alpa, EBLR2005, 957; Wagner, (2005) 42 CMLR, 1269;
van den Bergh and Visscher, ERPL2006, 511; Jansen, ZEuP2007, 398; Schulz, EBLR
2007, 1305.
11 Helmut Heiss, ‘The Common Frame of Reference (CFR) of European
Insurance Contract Law’, in: Schulze (ed.),Common Frame of Reference and Existing
EC Contract Law (2008), p. 229. See now the set of contributions on ‘European
Insurance Contract Law and DCFR’ in ERA Forum (2008), Scripta iuris europaei,
European Contract Law, Special Issue, ‘Towards a Common Frame of Reference
(CFR) European Insurance Contract Law and the CFR’, 595 ff.