European harmonization in the Contract Law Area

Résumé du document

The last decade witnessed the European Union taking tentative steps towards the likely abolition of each member state contract law, and its substitution with a single European Contract Law Code. Indeed, the European Union usually solves inconsistencies in contract law by legislating them in a very defined and closed area. For example, in 1977, the EU had implemented the Unfair Consumer Terms Act after analyzing that there were a growing number of consumer complaints from cross-member states. It did the same while legislating on commercial agents and on late payments in commercial transactions.
Nonetheless, this legislation aims at very specific points and does not interfere with each member state's contract law framework, which still causes conflict of law. It also impedes the great objective of the European Union construction since 1957 and the Rome Treaty, which is reaching the single market implementation.

Extraits

[...] Nevertheless, a European Contract Law Code is compulsory to my mind. Problems in just making a common frame The 2003 Action Plan revealed that the bodies questioned advocate of drawing a common frame in the area of contract law. The Commission said it would be tougher and more consistent than the existing legislation. This objective would be reached through the creation of a Common Frame of Reference (CFR). Three issues are concerning the CFR. First, when achieved, it has to serve the Commission to review existing legislations. [...]

[...] a European Contract Law Code. Vital need for a European Contract Law Code The responses from the single market actors were divided over Option IV. Although academic lawyers, who are the most capable of thinking about such issues, advocate of that solution, the Commission stated that it was not enough. The fear for codification of the other actors is a fear for the unknown. Businessmen and the legal practitioners in Europe are not accustomed to the idea of having new laws that would cause a considerable disturbance in their habits and concepts. [...]

[...] Absence of general concepts: There are no legislations defining terms as “contract” for instance. The definition can vary from one country to another, and the consequences of it are frightening. National coherences: Directives define for a member state the objective to reach, and let it implement it with the means it chooses. This led to problems because the same directive can give birth to two different implementation laws for example. Legal irritants: European directives could import unknown and untried concepts of law, which is problematical. [...]

[...] Against a European Civil Code[7] First, Europe is plurijural. At least, we can discern in our European Union, two legal traditions, namely civil law and common law at first glance. We can add that German law has its own specificity. Nonetheless, according to Pierre Legrand, promoting the emergence of a pan- European Civil Code is at worst a new kind of totalitarianism, aiming at suppressing all kind of differences. The unlikely codification process of private law is just a vague proof from bureaucrats in Brussels that they are alive, and that they want create a Union that is not only a single market. [...]

[...] Thus, uncertainty is wide spread among European businesses. Fear of the unknown hamper some importers and exporters to trade in Europe. Restrictions to trade and solutions brought by the Commission Since it's the European Union Institutions responsibility to tackle the problem, and since the Parliament vows concerning a European contract law harmonisation, the Commission is now handling the problem. Identifying the major problems in trading across the common market: the 2001 Commission's Communication[3] This communication dealt with the contract law area rather than civil law. [...]