Pregledni rad
REFERRING TO A FRAME? SOME REFLECTIONS ON THE EUROPEAN CONTRACT LAW PROJECT
Jan-Peter Trnka
Sažetak
In 2005 the Joint Network on European Private Law was entrusted by the
European Commission with drafting a Common Frame of Reference (CFR) for European
contract law. In the Commission’s own words, the CFR is to be ‘a tool box for the
Commission when preparing proposals, both for the existing acquis and for new
instruments’. The Commission could not have emphasised more often that the CFR is not
to become a new European Civil Code. Nevertheless, and perhaps paradoxically, the
expected outcome of the Network’s efforts is indeed a model law, ie a code, which is to be
presented by the end of 2007.
This article focuses on two aspects of the overall harmonisation project. First, the
constitutional setting for harmonising private law is highlighted. Are there limits to the
internal market mandate? It would seem that the post-Maastricht challenge of setting
such limits has not yet been resolved. The EC Treaty’s post-Tobacco Advertising Article
95 does not provide unlimited competence to adopt a comprehensive European contract
law. However, the lack of concrete criteria leaves much room for activity by the EC
legislator. The article describes the criteria stipulated by the European Court of Justice,
and also critically discusses the use of empirical data in this respect. In the second part,
the meaning of the frame of reference and the first statements on the work in progress
are examined. The new instrument will assume a concrete form very soon, and the
paradox of drafting a CFR code while making ‘no-code’ claims demands attention. The
Commission has defined what the Network should elaborate for the CFR as ‘best
solutions’. The article outlines the scope of the CFR and discusses the necessity of such
an instrument, as well as the idea of finding ‘best solutions’. In this respect, the idea of a
regulatory competition scheme for European contract law is supported. Differences
between national legal systems are the essential precondition for a learning process
within the Community. At the same time, detecting inconsistencies within the existing
acquis is a reasonable concern. One possible role of the CFR is to serve as a quality
control instrument when drafting European legislation.
Ključne riječi
Hrčak ID:
28572
URI
Datum izdavanja:
2.11.2007.
Posjeta: 1.649 *