A Comparative Analysis of the Drafting of European Private Law

• Date: 01 September 2009
• Author: Bastiaan Van Zelst
• Published date: 01 September 2009
• DOI: http://doi.org/10.1111/j.1468-0386.2009.00481.x

eulj_481616..633

A Comparative Analysis of the Drafting of

European Private Law

Bastiaan van Zelst*

Abstract: The development of the ‘Common Frame of Reference’ is a highly prominent

topic on the agenda of European integration. However, its underlying procedures have had

only limited investigation. This article discusses the European private law project by

inquiring into the drafting experiences of four other private law legislative processes, with

a focus on sales law. These instruments concern Article 2 (on sales) of the American

Uniform Commercial Code, the Vienna Sales Convention, the Dutch Civil Code and the

Directive on Consumer Sales and Associated Guarantees. Ultimately, the article asks

what can the European project learn from these experiences.

I Introduction

The development of a harmonised or even unif‌ied European private law (EPL) has been

a highly prominent topic on the agenda of European integration for almost a decade

now. The European Commission (the Commission) has played an important part in

this respect, in particular by conducting the development of a ‘Common Frame of

Reference’ (CFR) as a tool for furthering the development of private law at the

European level.1One of the main goals of the harmonisation of private law in Europe

is to increase consumer conf‌idence in the internal market.2The f‌irst draft for the CFR

(draft CFR or DCFR) was put together by a group of legal scholars, supported by a

network of stakeholder experts. This rather specif‌ic drafting procedure has led to the

process being scrutinised for reasons of feasibility, competence,3unbalanced interest-

group inf‌luence4and political foundation.5

* LLm, PhD. Member of the Centre for the Study of European Contract Law of the University of

Amsterdam and a practising lawyer in the Amsterdam off‌ice of De Brauw Blackstone Westbroek.

1See section II infra.

2See European Commission, Green Paper on the Review of the Consumer Acquis of 8 February 2007,

COM (2006) 744 f‌inal. The idea of ‘the conf‌ident consumer’ is a highly criticised concept, mainly because

it is doubted whether the lack of harmonised laws is a cause of consumers being reluctant to purchase

products abroad. See T. Wilhelmsson, ‘The Abuse of the “Conf‌ident Consumer” as a Justif‌ication for EC

Consumer Law’, (2004) 27 Journal of Consumer Policy 317.

3J. W. Rutgers, ‘The Rule of Reason and Private Law or the Limits to Harmonization’, in A. Schrauwen

(ed), Rule of Reason: Rethinking Another Classic of EC Legal Doctrine (Europa Law Publishers, 2005) and

W. van Gerven, ‘Codifying European Private Law: Top Down and Bottom Up’, in S. Grundmann and

J. Stuyck (eds), An Academic Green Paper on European Contract Law (Kluwer Law International, 2002),

at 422 ff.

4M. W. Hesselink, ‘Editorial’, (2005) 1 European Review of Contract Law 295.

5The question whether European private law should be based on the notion of contractual freedom or the

notion of a social law of contract is highly debated. The European Commission seems to prefer the former

European Law Journal, Vol. 15, No. 5, September 2009, pp. 616–633.

© 2009 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

Even though substantive legal comparative efforts will form the basis of the eventual

CFR, its underlying procedure has not yet been the subject of a comparative inquiry.

The experiences with the drafting of other instruments of contract law could, however,

prove to be of great value for the European project. This article aims to investigate the

choices made in the European project by inquiring into the drafting experiences of four

other legislative processes in the area of sales law: those underlying Article 2 of the

American Uniform Commercial Code (UCC), the Vienna Sales Convention (CISG),

the Dutch Civil Code (BW) and the Directive on Consumer Sales and Associated

Guarantees.6It will discuss the procedures underlying these instruments, as well as the

development of the rule alternative on the issue of scope in each of the systems. This

topic has been chosen due to its particular prominence in each of the legislative

processes investigated. Ultimately, the article asks what can be learned from the expe-

riences in these four systems.

II Organisation of the European Private Law Process

The ‘Europeanisation’ of private law has been a topic of political as well as scholarly

debate for a number of decades now. While at f‌irst a progressive and open-minded

exercise,7the increasing activity by the European Community institutions has made

EPL a highly prominent topic on the agenda of European integration. After the

Consumer Sales Directive was adopted in 1999 and the Council, later that same year,

summoned ‘an overall study on the need to approximate Member State’s legislation in

civil matters’,8the Commission unexpectedly9issued the f‌irst of its Communications on

the future of European private law in 2001.10

This f‌irst document was followed by a second communication, ‘An Action Plan’,11 in

2003. This second communication differed in nature from the f‌irst one by making clear

choices as to the future of the Europeanisation project. The second Communication

announced the funding of academic research aimed at the creation of a CFR, which

should form the basis for further developments in the area of European contract law.

The Commission published its third communication—‘The Way Forward’—in which

the development of the CFR was the focal point, in October of 2004.12 According to the

(M. W. Hesselink, ‘The Politics of a European Civil Code’, (2004) 10 European Law Journal 675), whereas

several scholars have opted for a more social approach. See Group on Social Justice in European Contract

Law, ‘Social Justice in European Contract Law: A Manifesto’, (2004) 6 European Law Journal 653.

6Directive 99/44 of the European Parliament and of the Council of 25 May 1999 on certain aspects of the

sale of consumer goods and associated guarantees, [1999] OJ L171/12 (Consumer Sales Directive; the

Directive).

7M. W. Hesselink, ‘The Politics of a European Civil Code’, in M. W. Hesselink (eds), The Politics of a

European Civil Code (Kluwer Law International, 2006), at 155.

8See the Tampere Presidency Conclusions, available at http://www.europarl.europa.eu/summits/

tam_en.htm.

9N. Reich, ‘Critical Comments on the Commission Communication “On European Contract law” ’ in

Grundmann and Stuyck, op cit n3supra, at 284 and Hesselink, op cit n5supra,at686.

10 Communication from the Commission to the Council and the European Parliament on European

Contract Law of 11 July 2001, COM (2001) 398 f‌inal, EC, [2001] OJ C255/1 (the f‌irst communication).

11 Communication from the Commission to the European Parliament and the Council: A More Coherent

European Contract Law, an Action Plan, COM (2003) 68 f‌inal (12 February 2003) (Action Plan).

12 Communication from the Commission to the European Parliament and the Council—European Contract

Law and the Revision of the Acquis: The Way Forward, COM (2004) 651 f‌inal (11 October 2004) (the

Way Forward.

September 2009 Drafting of European Private Law

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