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.