A Toolbox for European Judges

Date01 July 2011
AuthorMartijn W. Hesselink
Published date01 July 2011
A Toolbox for European Judges
Martijn W. Hesselink
Abstract: The forthcoming instrument on European contract law, be it in the shape of an
optional code for cross-border contracts or as an off‌icial toolbox for the European
legislator, is likely to have a spill-over effect on private law adjudication in Europe. Judges
will have no great diff‌iculty in f‌inding model rules and def‌initions that might come in handy
when dealing with gaps and ambiguities in European private law. However, the question is
whether such a role as a toolbox for judges would be legitimate. I discuss three types of
possible legitimation strategies: traditional methods of legal interpretation, the new Euro-
pean methods and merely political legitimation. It will often depend on the circumstances
of the case at hand and the characteristics of the particular model rule or def‌inition that
is being borrowed what mode of legitimation will prove to be more convincing. However,
generally speaking legitimation in terms of the ‘general principles of civil law’ that the
CJEU has recently been developing seems a particularly promising strategy. On the other
hand, it seems unlikely that European courts could come under a duty, following from the
principle of sincere cooperation, to use the instrument as a toolbox.
I Whose Toolbox?
A From the Common Frame of Reference (CFR) to an Optional Instrument
(OI) and a Legislator’s Toolbox
In July 2010, the European Commission (EC) published a Green Paper on policy
options for progress towards a European contract law (ECL) for consumers and
businesses.1This is the latest development in a process that started almost a decade
ago, with the publication by the EC of its f‌irst communication on ECL,2to be fol-
lowed in 2003 by an Action Plan in which the Commission announced the elaboration
by a network of academics of a ‘CFR’3and the publication in 2009 of the academic
Draft CFR (DCFR).4The Green Paper opens a new round of consultation on the
1COM(2010) 348 f‌inal, 1.7.2010.
2COM(2001) 398, 11.7.2001.
3COM(2003) 68, 12.2.2003. See also Communication on European Contract Law and the revision of the
acquis: the way forward, COM(2004) 651, 11.10.2004.
4C. von Bar, E. Clive and H. Schulte-Nölke and H. Beale, J. Herre, J. Huet, M. Storme, S. Swann,
P. Varul, A. Veneziano and F. Zoll (eds), Principles, Def‌initions and Model Rules of European Private
Law; Draft Common Frame of Reference (DCFR); Outline Edition (Munich: Sellier, 2009).
European Law Journal, Vol. 17, No. 4, July 2011, pp. 441–469.
© 2011 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK
and 350 Main Street, Malden, MA 02148, USA
desirability, nature and scope of an ‘instrument of ECL’5while at the same time, an
‘expert group’ is working, for the Commission, on a draft of such an instrument.6
As to the legal nature of the instrument, the Commission suggests seven options:
publication of the results of the expert group (option 1); an off‌icial toolbox for the
legislator, consisting of either (1) a Commission act on a toolbox or (2) an interinsti-
tutional agreement on a toolbox (option 2); a Commission recommendation on ECL
(option 3); a regulation setting up an OI of ECL (option 4); a directive on ECL
(option 5); a regulation establishing a ECL (option 6); and a regulation establishing a
European Civil Code (option 7). One option does not exclude the other; several of
them could overlap, for example, the OI and the toolbox.
From the order of presentation—number 4 naturally suggests the moderate or
compromise option in contrast with more extreme alternatives—and from Vice-
President Reding’s public interventions, it is clear that the Commission’s own prefer-
ence is for the OI.7According to the Green Paper, the OI would be conceived as a
second regime in each Member State, thus providing the contracting parties with an
option between two regimes of domestic contract law.8It would insert into the national
laws of the 27 Member States a comprehensive and, as much as possible, self-standing
set of contract law rules that could be chosen by the parties as the law regulating their
contracts.9As the Commission points out, this set of contract law rules would form part
of each Member State’s national law also for the purposes of private international
law.10 The OI on contract law would thus be similar to the European order for payment
procedure11 and the European company (Societas Europea),12 although the compre-
hensiveness and self-standing nature (in the sense that references to national laws or
international instruments should be reduced as much as possible)13 that the EC hopes
for is likely to be even more problematic in the case of general contract law than it has
been for the European company.
Whether such an OI will gain enough political support is still very much an open
political question. The case is different for the legislator’s toolbox (option 2). If an OI
is going to be adopted, it is not obvious that the Commission will see a great need to
take any formal measures, like adopting a Commission act or negotiating an inter-
institutional agreement concerning the toolbox. Nevertheless, it seems natural, in such
a case, that, even without any formal act or agreement, the OI would become an
informal, but potentially equally (or even more) inf‌luential, source of inspiration for the
European legislator. If, however, the political project of an OI fails then, of course, a
more off‌icial toolbox is the second best alternative for the Commission and other
supporters of a more European contract law. And the idea of a legislator’s toolbox is
5The term ‘instrument of European contract law’ seems to have replaced the term ‘common frame of
reference,’ which is no longer used in this new Green Paper except to refer to the background of the
current consultation or to the text of the DCFR.
6See Commission Decision of 26 April 2010 setting up the Expert Group on a CFR in the area of European
contract law, 2010/233/EU, OJ 27.4.2010, L105/109, in particular, Art 2 (Task). For reasons of trans-
parency, I point out that I am a member of that group.
7See, eg V. Reding, ‘Making the most of the internal market: concrete EU solutions to cut red tape and to
boost the economy’, Speech/10/42, Brussels, 24 February 2010 (press release).
8Green Paper, 8.
9Green Paper, 10.
10 Green Paper, footnote 25.
11 Reg 1896/2006 of 12 December 2006 creating a European order for payment procedure.
12 Reg 2157/2001 of 8 October 2001 on the Statute for a European company (SE).
13 See Green Paper, 7.
European Law Journal Volume 17
442 © 2011 Blackwell Publishing Ltd.

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