The Question Concerning the Common Frame of Reference

• Author: Leone Niglia
• DOI: http://doi.org/10.1111/eulj.12002
• Published date: 01 November 2012
• Date: 01 November 2012

The Question Concerning the Common

Frame of Reference

Leone Niglia*

Abstract: The many directives on private consumer law enacted in the last three decades

have met with considerable neglect and resistance amongst domestic judges, legislatures

and scholars, bringing about less legal unity and more ‘legal fragmentation’—to say it in

the words of the Commission. The Draft Common Frame of Reference is one more

attempt, on the part of certain strands of European private law scholarship, at imposing

a formal break on, and at overcoming, such fragmentation. Presented as a ‘comprehensive

and self-standing’ document, its ambition is to definitively implement the Commission-

generated, market-orientated agenda of private law reform, so much resisted at the

national level. The article argues that the EU legislative institutions should not go ahead

with the plan of incorporating the Draft’s content in EU law, by adopting a CFR. A CFR

would confer an unprecedented degree of authority on a range of contested directive-

generated rules, from the test of fairness to the risk development defence in product

liability. In creating a climate in which CFR-based legalistic arguments promote unity

over fragmentation, a CFR would emasculate public debate by implementing, under the

spell of legal necessity, exactly those partisan, Commission-initiated policies that have

been, and still are, openly opposed in domestic legal circles. The Draft embodies a

grammar of imposition that should be questioned.

The authors of the Draft Common Frame of Reference (DCFR)1argue that theirs is a

non-political piece of work, the product of scholarly craft with no ideological vision

or substantive orientation or belief set to back it up.2They also argue that the DCFR

can only become a ‘political Common Frame of Reference (CFR)’ if and when EU

* Director of the Centre for European Legal Studies and Reader, School of Law, University of Exeter,

UK. Thanks to two anonymous referees for comments.

1See C. Von Bar and E. Clive (eds), Principles, Definitions and Model Rules of European Private Law.

Draft Common Frame of Reference (DCFR) (OUP, 2009) and the two previous editions without

comments and notes: Principles, Definitions and Model Rules of European Private Law: The Draft

Common Frame of Reference (Outline Edition, Von Bar et al. eds, 2009); Principles, Definitions and

Model Rules of European Private Law: The Draft Common Frame of Reference (Interim Outline Edition,

Von Bar et al. eds, 2008).

2See, eg DCFR (full edition, 2009), at 3 (the DCFR is an ‘academic, not a politically authorised text’)

and at 20 (arguing for the distinction between political questions and questions of a legal nature). See,

eg B. Lurger ‘Old and New Insights for the Protection of Consumers in European Private Law in the

Wake of the Global Economic Crisis,’ in Brownsword/Micklitz/Niglia/Weatherill (eds) The Foundations

of European Private Law (Oxford, 2011) 89, at 91 (‘They see themselves as academic experts whose

proposals are in essence non-political and merely technical’).

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European Law Journal, Vol. 18, No. 6, November 2012, pp. 739–769.

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institutions decide to adopt it. Whatever the option(s) that the EU legislature will

choose (non-binding or binding legislation),3a CFR is seen as the aspired to, sym-

bolic, acte de reconnaissance that would make of the Draft ‘the official text’ around

which to re-order private law in European mode.4In this view, the only ‘politics’

entailed in the process would consist of the decision-making within the EU institu-

tions on which option(s) to elect for best concretising the programme of a wholesale

re-framing of the private law script.

Below I argue the opposite. In my view, the (D)CFR is a truly political act with a

contingent ideological imprint and a regulatory ambition whose scope must rank

alongside the most far reaching attempts at ordering by legislative fiat put forward

ever since the age of codification.5Far from a neutral reception of ‘objective legal

science,’ I argue that a CFR would be about officialising a contingent political

project, an eventuality that I take issue with. I am interested less in the modalities in

which a CFR may be implemented (ie the strategic use of the six available options

for that purpose)6and more in the making of an ‘authoritative European text’ qua the

official reference point for Europe’s private law. For this is the question that

3The Green Paper from the Commission on policy options for progress towards a European Contract

Law for consumers and businesses COM (2010) 348 final 1 July 2010 canvasses the widest possible range

of options: from ‘official toolbox for the legislator’ (1) to ‘Commission Recommendation’ (2), ‘Regulation

setting up an optional instrument’ (3), ‘Directive on European Contract Law’ (4), ‘Regulation

establishing a European Contract Law’ (5) or ‘Regulation establishing a European Civil Code’ (6). As far

as the work of the European Commission is concerned, the last official development is the Expert Group’s

Feasibility Study of 3 May 2011 (at http://www.ec.europa.eu/justice/contract/expert-group/index_

en.htm), with the final text being option neutral—that is, as requested by the Commission, written ‘as if’

any of the six options were to be chosen. On the Commission website one reads: ‘On this basis, the

Commission will now decide if, how and to what extent this feasibility study could serve as a starting point

for the preparation of a political follow-up initiative. In this sense, the Expert Group text is a “toolbox”

to be used by the Commission services in the preparation of a possible future initiative in this area.’

Unofficially (eg press releases of Commission), it appears that Option 3 is gaining consensus, but all is

very much uncertain: see, eg Hesselink, a member of the Expert Group, (M. Hesselink, ‘A Toolbox for

Judges’ 2011 European Law Journal 441, at 442), acknowledges the recent support of the European

Commission for Option Three (in cross-border transactions and on an opt-in basis) but adds that

‘[w]hether such an OI will gain enough political support is still very much an open political question’ and

that Options 2 and 3 or a combination of both are indeed a possibility. As far as the European Parliament

is concerned, a Resolution of 8 June 2011 (on policy options for progress towards a European contract

law for consumers and businesses 2011/2013(INI) may now favour Option 3, but the Parliament is equally

open to Option 2 in combination with Option 3 (see Resolution, at para 23).

4All options (including ‘softer’ Options 1 and 2) are believed to be bound to create the desired effect

of enhancing the consciousness of ‘an official text’: see, eg Eidenmüller et al., ‘The Common Frame of

Reference for European Private Law—Policy Choices and Codification Problems,’ (2008) Oxford

Journal of Legal Studies 28, 659, 660 (arguing that, whether through binding or non-binding means, the

making of an ‘authoritative European reference text’ is on the way); R. Zimmermann, ‘The Present

State of European Private Law,’ (2009) 57 American Journal of Comparative Law 479, at 491 (fn 89) and

at 491 (legal status of the final document neutral to its intended authoritativeness); Hesselink, A

Toolbox, fn 3 above, at 443 (discussing the problematic of the potential influence of an optional

instrument/toolbox on the work of judges towards resolving any kind of ‘hard cases on contracts’).

5Among classical writings on codification see R. C. Van Caenegem, A Historical Introduction to Private

Law (Cambridge, 1992); F. Wieacker, Privatrechtsgeschichte der Neuzeit (Vandenhoeck & Ruprecht:

Gottingen, 1967), transl. by T. Weir, A History of Private Law in Europe (Oxford: Clarendon Press,

1995).

6But note how focus on the ‘framing act’ allows real understanding of the meaning of Options 1

(Toolbox) and 3 (Optional Instrument): see discussion below at Parts III.B.b and III.B.c.

Amulti-optional strategy is increasingly gaining the support of Commission and Parliament (see fn 3

above) as well as of the European Economic and Social Committee (see its Opinion on the Green Paper,

European Law Journal Volume 18

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