Aims

Formulating Principles of European Patrimonial Law

The aim of the Study Group is to produce a set of codified principles for the core areas of European private law (patrimonial law). Although the foundation for our work is detailed comparative law research, the principles which we are fashioning will represent more than a mere restatement of the existing law in the various EU jurisdictions from the standpoint of the predominant trends among the diverse legal regimes. Instead the Study Group seeks to formulate principles which constitute the most suitable private law rules for Europe-wide application.

The Study Group is not taking any one national law as a model which, with adaptation, is to be made the basis of European principles. We take the view that every legal system in the EU potentially has much to offer and the appropriateness of rules is determined on their merits rather than their national origin. Nor is the popularity of a rule necessarily decisive. While the fact that a rule or legal institution is widely shared naturally suggests its utility from a trans-national point of view, their deficiencies, in the light of legal developments, must also be considered. Improvements and alternative options may emerge in the process of analysis and in the attempt to find solutions which can bridge apparently polar approaches to the matter. In many cases the Principles will not be clearly reflected by existing law anywhere in the Member States. Instead they will represent innovations intended to build on the various national legal experiences and to avoid the problems which they have exposed.

Format of the Principles

The format of the draft text will reflect that which was adopted by the Commission on European Contract Law in the presentation of the Principles on European Contract Law. The Principles will take the form of a draft codification for the jurisdictions of the European Union, complete with comments and illustrations explaining the provisions and how they apply and notes setting out their foundation in, derivation from or deviation from the existing laws.

Supporting possible legislative developments in the future

The Study Group is not concerned as such with political questions, such as implementation of the Principles in the form of EU legislation. Whether the Principles should take legislative form and, if so, in what manner and when are political questions which fall outside our remit. While our members have views on these subjects, they are really matters for wide public debate. The aim of the Study Group is to make a contribution to that debate by producing a possible legislative text. Our conviction is that the political case for a pan-European codification of patrimonial law or lesser measures (which might represent intermediate steps) is best tested against the background of an actual draft text which might form the basis for legislation. Whether or not such a text is ultimately to receive a political stamp of approval in any shape or form, it is a pre-requisite for that the enacted material has a rationally defensible foundation in the existing European private law. It is for this reason that drafting principles which might one day be made use of in European legislation must be carried out by legal experts with the benefit of and from the standpoint of current legal science.

The aim of the Study Group on a European Civil Code is therefore to determine (by means of scholarly comparative legal research) the extent to which the existing private law rules in the various legal systems of the Member States can be formulated in terms of shared legal principles. In order that any European legislative measure can thrive, if political support materialises, it is essential as a very minimum that the measure is supported by an academic consensus which regards the text as workable on an EU-wide arena, having regard to the different legal traditions of the constituent jurisdictions.

The non-legislative utility of the Principles

It would be fallacious to suppose that the essential reason for the work of the Study Group and the solitary value of the Principles will lie in the production of a text which can be fed raw into a cauldron of future political activity. The academic enterprise of researching the potential for codification of European private law and the considered process of restating contemporary principles common to the various legal systems in the Union is in itself a valuable contribution to legal science. As a concise, accessible and fully-annotated statement of private law principles with roots in all the different legal families of modern Europe, the draft text will constitute an unparalleled resource in comparative law for the benefit of judges, practising lawyers and jurists throughout the European Union and beyond. Besides its potential role in laying the first foundation of some conceivable legislative initiative, the Study Group envisages that its published output will serve the following primary purposes:

A. Accessible information about law in other EU jurisdictions

As a statement of the current law, the code may provide a first and efficient resource for lawyers requiring an overview of private law across the European Union. This may be of benefit to persons outside as well as inside the European Union who are contemplating business transactions or activities in Europe or with European partners and who require knowledge of the underlying private law in the various Member States. In this way the restatement may contribute to the dismantlement of the potential barrier to beneficial economic activity which arises when essential legal knowledge is expensive or time-consuming to obtain.

B. Fostering the foreign law influence on domestic legal development: indirect legal integration in the EU

By showing in a comparative way how the various EU legal systems currently resolve problems in private law, the restatement will assist lawyers, judges, law reform bodies and legislators in legal argument and the development of existing law within their own jurisdiction. Conceivably, where national law is uncertain or considered doubtful or where its application has proved problematic, the restatement may incidentally help to foster a voluntary convergence of national laws. By outlining the case in favour of the mainstream position adopted in the European jurisdictions or the consensual European model solution, the Principles of European Patrimonial Law may influence national legal change towards a common European position. In this way the Principles may promote evolutionary legal integration, at least in marginal cases.

C. Supporting the development of EU law within the existing legal framework 

In the context of Community law itself, the statement of principles of private law contained in the text produced by the Study Group may assist lawyers and the European Courts when, in accordance with the provisions of Union law and the jurisprudence of the court, it is necessary to derive principles of Community law from the principles of law common to the Member States. This is of particular relevance to the developing law of extra-contractual liability of the Community institutions under Art. 288(1) of the EC Treaty (formerly Art. 215 EC), where Community law imports as a source of law common principles of the national laws governing liability of administrative bodies. Those principles are themselves strongly influenced (at the very least) by the comparable private law in the legal systems of the Member States. However, the Principles of European Patrimonial Law would also be relevant as an aid to construction where Community legislation invokes general legal concepts in an undefined way and a uniform, pan-European meaning must be given to the legislation. In this way the Principles may assist both the European Court of Justice in construing existing legislation and the European legislative organs in formulating new legislation.

D. Facilitating party autonomy in formulating cross-border agreements

As a corpus of private law reflecting a reconciliation and fusion of varied legal traditions and private law rules in the European Union, the Principles may serve as a statement of principles which parties can voluntarily incorporate in the formation of cross-border agreements and in the voluntary resolution of claims including settlement by arbitration. The same holds for contracts entered into by EU institutions. The virtues of Principles of European Patrimonial Law in the form of a code in this regard are clear. Arrangement in terms of a coherent set of rules drafted with legislative enactment in mind, as opposed to purely discursive narration, will facilitate adoption and satisfy the standard of drafting expected in private agreements which are prepared professionally. Moreover, as a statement of the essential shared private law in Europe with a resonant echo in all the legal systems of the Member States, the code will offer the requisite neutrality and a certain equidistance from any one particular national legal system. Cross-border parties, seeking compromise between positions of domestic partiality, will be able to rely on the Principles as an impartial model and arbiter.

E. Promoting comparative law and understanding of foreign law in national legal education

Constituting a terse statement of European private law, the draft text and its commentary may provide a first resource for teaching in comparative legal studies and may help to foster understanding and communication among European lawyers trained in the distinct legal perspective provided by their own national system. In particular, in view of the difficulties of language and of acquiring abroad specialist material relating to smaller legal jurisdictions, the restatement may promote knowledge of the current private law of certain legal systems which might otherwise be neglected in teaching and scholarship elsewhere. In this context it should not be overlooked that knowledge of European private law has an immense role to play outside as well as inside the European Union.