Comparative Law

A Handbook

Esin Örücü, David Nelken

• Publisher: Hart Publishing
• Year: 2007
• ISBN:
  9781847316981
• Edition: 1
• Topic: Jura
• Subtopic: Rechtsvergleich

This innovative, refreshing, and reader-friendly book is aimed at enabling students to familiarise themselves with the challenges and controversies found in comparative law. At present there is no book which clearly explains the contemporary debates and methodological innovations found in modern comparative law. This book fills that gap in teaching at undergraduate level, and for postgraduates will be a starting point for further reading and discussion.
Among the topics covered are: globalisation, legal culture, comparative law and diversity, economic approaches, competition between legal systems, legal families and mixed systems, comparative law beyond Europe, convergence and a new ius commune, comparative commercial law, comparative family law, the 'common core' and the 'better law' approaches, comparative administrative law, comparative studies in constitutional contexts, comparative law for international criminal justice, judicial comparativism in human rights, comparative law in law reform, comparative law in courts and a comparative law research project. The individual chapters can also be read as stand-alone contributions and are written by experts such as Masha Antokolskaia, John Bell, Roger Cotterell, Sjef van Erp, Nicholas Foster, Patrick Glenn, Andrew Harding, Peter Leyland, Christopher McCrudden, Werner Menski, David Nelken, Anthony Ogus, Esin Örücü, Paul Roberts, Jan Smits and William Twining. Each chapter begins with a description of key concepts and includes questions for discussion and reading lists to aid further study.
Traditional topics of private law, such as contracts, obligations and unjustified enrichment are omitted as they are amply covered in other comparative law books, but developments in other areas of private law, such as family law, are included as being of current interest.

III

New Territories for Comparative Law

10

Convergence of Private Law in Europe: Towards a New Ius Commune?

JAN M SMITS

KEY CONCEPTS

European private law: Ius commune; Unification and harmonisation.

I. INTRODUCTION

THE EMERGENCE OF a common private law for Europe is a topical issue. Over the last two decades we have seen much debate on the question to what extent the European Union is in need of a uniform private law and what this law should look like. The symbolic starting point of this debate is often seen as the 1989 resolution of the European Parliament in which it called for the elaboration of a European civil code.¹ Since then, many books and journal articles have been devoted to the future of private law in Europe and it is certainly no exaggeration to say that out of this debate a whole new scholarly discipline of ‘European private law’ has emerged with its own journals,² annual conferences and university chairs. This discipline looks at questions related to the convergence of the laws of contract, tort and property as well as of family law. Often, these questions are referred to as the ius commune-debate, referring to that period of time (mainly the 17th and 18th century) in which a true common law did exist in continental Europe, even though the present time can hardly be compared with the cultural and legal climate to that time, in which all lawyers—at least in large parts of the European continent—used the same legal language (that of Roman law) and were all part of one unified culture.

The aim of this contribution is to discuss several of the questions which the emergence of a European private law raises; not to give definitive answers but to provide the reader with the tools necessary to answer them for him or herself. First (Part II below), attention is paid to the need for convergence of private law: What are the reasons usually given for harmonising or unifying private law and are these reasons in any way convincing? Secondly, the question is raised how convergence of private law takes place at present. Thus, unification by treaties and harmonisation through Directives are discussed below in Part III, together with the far-ranging idea of creating a European civil code. A third question (Part IV below) is whether convergence of private law is at all possible. Some have argued that the differences among the 28 private law systems we have in Europe (27 national systems and Scots law) are too large to come to any real convergence. This is an important argument which deserves to be mentioned here. Finally, various other methods to reach (further) convergence of private law in Europe will be considered. Should the European Union continue with the present harmonisation process by issuing European directives or should other methods (also) be used to reach more convergence of law? For instance, such wide-ranging pleas have been made for promoting a European legal science and education and for convergence of law through competition of legal systems. These and other methods are discussed in Part V below.

Before embarking upon our venture, one remark on terminology seems apt. Often, the terms convergence, unification, harmonisation and legal integration are used interchangeably to describe the process of the coming together of the national private laws of the Member States of the European Union. In this sense, these are ‘utterly flexible and indeterminate’ terms (Boodman, 1991). However, it seems useful to reserve the term harmonisation for the specific method of legal convergence through European Directives. This leaves diversity as to the form and means used in place, only harmonising the end result to be achieved by the Member States (cf Article 249 of the EC Treaty³). On the other hand, I will use the term unification for the process that may lead to uniform law (such as in the case of treaty law). This uniform law presupposes that national legal systems completely disappear and that a new, uniform, law is applied in a uniform way across all of Europe—a result that, as we will see, is hardly ever reachable.

II. THE NEED FOR CONVERGENCE

Diversity of Private Law in Europe

Any contribution on the unification of private law should start with acknowledging that the European Union’s private law is at present immensely diverse. One can identify four groups of private law regimes within the European Union on the basis of common history, the sources of law recognised and the predominant mode of legal thought. The first group consists of the common law systems of England and Ireland, with their emphasis on judge-made law and the central authority of the English House of Lords and the Irish Supreme Court respectively. Cyprus (a British colony until 1960) also belongs to this group. The second group consists of the traditional civil law countries, characterised by a central role for a national civil code, but also by a highest court whose decisions are in practice often just as important as the code provisions. Among these countries, one can distinguish between those that have a code that is to a greater or lesser extent still based on the Code Napoleon (France, Belgium, Luxemburg, Spain, Portugal, Italy and Malta) and those that have a code that is based more on the German model (Austria, Germany, Greece and The Netherlands).

A third group is formed by the Scandinavian Member States (Denmark, Sweden and Finland). They not only share a common history, but also have several common statutes, such as a common statute on sale of moveable goods and a common contract law Act. Finally, there is the large group of countries that entered the European Union in 2004, almost all of which have a new or at least recently revised civil code (Poland, the Czech Republic, Slovakia, Hungary, Estonia, Lithuania, Latvia and Slovenia). The way in which these new or revised codes are applied and interpreted by the national courts cannot be compared to the way in which this is done in traditional civil law countries. Generally speaking, the mode of interpretation is much more literal.

It should also be noted that within these four groups there can be considerable differences in substance. Even such basic topics as formation of contract, damages in tort and transfer of property are often treated differently depending on the jurisdiction involved. And where the substance is the same, the judicial style and way of reasoning may still differ.

The First Motive for Convergence: the Internal Market

What should one think of these differences? Sometimes, it is seen as a goal in itself to get rid of legal diversity: differences between European countries are to be avoided because differences are bad. Why should it be that title to a moveable object be transferred with the contract of sale in Belgium, but upon delivery in The Netherlands? And why should the victim of a traffic accident be protected less in Portugal than in France? This line of reasoning, which does not even address the adverse effects of diversity, does not seem very convincing. There have to be other, real, motives for unification.

The development of the common market is usually seen to be the most important motive for convergence of private law within the European Union. Articles 2 and 3 of the EC Treaty make it clear that ‘the approximation of the laws of the Member States to the extent required for the functioning of the common market’ may be pursued. This implies that in so far as national private law stands in the way of this common market, the European Union is competent to take measures.

It is worthwhile to look in somewhat more detail at this relationship between the common market and private law. How is it, exactly, that divergence of private law may distort the functioning of the European economy? The reasoning of the European legislator becomes clear from the following passage from the preamble to Council Directive 93/13/EEC on Unfair Terms in Consumer Contracts:⁴

[T]he laws of the Member States relating to the terms of contract between the seller of goods or supplier of services, on the one hand, and the consumer of them, on the other hand, show many disparities, with the result that the national markets for the sale of goods and services to consumers differ from each other and that distortions of competition may arise amongst the sellers and suppliers, notably when they sell and supply in other Member States.

It is thus the creation of similar European conditions for the seller (or otherwise professionally acting party) that is decisive for the European Union: if legal regimes differ too much, competition among sellers from various European countries will be distorted. It is this basis of Article 3 (elaborated in Article 95 of the EC Treaty) on which most European Directives with relevance for private law are based. This so-called acquis communautaire consists of almost 20 Directives on the core of private law.⁵ Most of them deal with specific contracts such as consumer sale, time-share, package travel, consumer credit, financial transactions and distance marketing, others regulate, for example, products liability, electronic commerce and unfair contract practices. There are no Directives on family law and the law of immoveable property for the simple reason that these topics are probably not covered by Article 95.

An interesting question is whether the argument of the European Commission is completely convincing: Does harmonisation of private law really promote the internal market? This is an important issue because, in its ‘Tobacco judgment’ of 2000,⁶ the European Court of Justice (ECJ) held that a measure based on Article 95 of the EC Treaty must genuinely have as its object the improvement of the conditions for the functioning of the internal market. The mere finding of disparities between national rules and ‘the abstract risk’ of distortions of competition is not enough: these must be real or at least probable. If this condition is not met, the ECJ can strike down the measure taken.

To the European Commission, the question has a clear answer. For consumers and small and medium-sized enterprises in particular, not knowing other private law regimes may be a disincentive to undertaking cross-border transactions. This may lead some suppliers of goods and services to refrain from offering to consumers in other countries, while others will enter into business but then suffer from high transaction costs.⁷ This way of reasoning is, however, not entirely satisfactory. In itself it is true that concluding a transfrontier contract is more costly than concluding a contract in one’s own country, but it is an open question whether harmonisation of private law will reduce these costs substantially. It is likely that in this respect not only other parts of the law (such as tax law and procedural law) are more important, but it is also to be recognised that the costs of transfrontier contracting are primarily caused by de facto barriers such as different languages, cultural differences and distances (Smits, 2006b; and Vogenauer and Weatherill, 2006). Also for consumers, such barriers seem to be more important than differences in private law.

The Second Motive for Convergence: a European Civil Code as a Symbol of one European Identity

Another motive for unification of private law is in the desire to create a European identity: one Europe requires one private law (Alpa, 2000). In the same way that the 19th century national codifications were a means to create a national identity distinct from the identity of other peoples, a European civil code would be the symbol of one Europe and of solidarity among the Member States (mentioned in Article 2 of the EC Treaty). This motive is closely connected to the very reason for the founding of the European Communities. In the aftermath of World War II, the desire to bury the hatchet once and for all among European countries and get rid of national differences that might serve as a new reason for conflict, was an essential part of this.

The identity argument does not seem very strong. It is often remarked that the core of the European identity does not lie in uniformity but in cherishing the European plurality of languages, cultures and law. What is more, even the official motto of the European Union is ‘united in diversity’. One only needs to point at the example of the United States to realise that one national identity does not necessarily imply a uniform law: every American state has its own private law. It also seems likely that for example, a common foreign policy is much more a token of European unity than a common law (cf Wilhelmsson, 2002).

III. A EUROPEAN PRIVATE LAW THROUGH IMPOSITION: INTERNATIONAL CONVENTIONS, EUROPEAN DIRECTIVES AND THE IDEA OF A EUROPEAN CIVIL CODE

Unification through International Conventions

The traditional method of achieving uniformity, ie through binding treaties between different countries, has not been very successful in the field of private law. The reason is obvious: A treaty can only come into being with the agreement of the contracting states and will only enter into force after approval by the states in which the treaty is to apply. Experience shows that reaching such uniformity is particularly difficult in the area of private law. And if agreement is reached, the treaty is often either based too strongly on one legal system or has, by way of compromise, escaped into vague formulations, leaving the treaty with little unifying effect in practice.

Private law conventions include treaties on bills of exchange and cheque law, leasing, factoring, letters of credit, liability for nuclear damages and oil pollution and transportation law. The best-known example is the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG)⁸ that provides substantive rules for transfrontier and commercial sale of moveable goods. This convention is now ratified by almost 70 countries. One of the main problems with the CISG, however, is that its provisions are rather abstract and consequently leave much discretion to national courts in interpreting the convention. This also illustrates a more general problem with unification through ...