Article by Martijn W. Hesselink
At the beginning of 2008, a large international network of legal scholars published an Interim Outline Edition of a Draft Common Frame of Reference (DCFR) which was followed, at the end of the year, by the final Common Frame of Reference (CFR). The European Commission had ordered such an academic draft for a CFR with a view toward implementing its 2003 Action Plan on European contract law. The reasons the Commission stated that the European Union needed a CFR on contract law were that such a document could contribute to making the acquis communautaire (i.e., the existing European Community private law) in the area of contract law more coherent and that it could provide a basis for a possible optional European code of contract law. However, while the academics were still in the midst of their drafting effort, the Commission, in a clear desire to complete the revision of the acquis within the term of the Barroso Commission (due to end in 2009) and encouraged by the Council of the European Union, decided to go ahead with its revision process before the CFR became available. Thus, in autumn of 2008, the European Commission published its proposal for a new directive on consumer rights. Around the same time, it became clear that the idea of a European civil code, even an optional one, was not going to be high, if at all, on the European political agenda, especially after the debacle with the Constitutional Treaty. This means that the final DCFR will be published at a time when the two primary reasons for which it was commissioned seem to have disappeared.
This raises the question of what, if anything, the future of the DCFR should be. The European Community seems to have lost much of its original enthusiasm for the CFR (the proposed new directive on consumer right, its main raison d'être, does not even refer to it), whereas the European Council, after a slow start, now seems to be taking a rather keen interest. So, where should the CFR process lead from now? In particular, should the European institutions still go ahead with their original idea to transform the academic DCFR into a political final CFR and make it become the object of an interinstitutional agreement (IIA)? And should such a political CFR play any role in the resolution of disputes between private parties in Europe? This Article argues that it should. After a note on terminology (Part II), it first explains that a CFR, whether or not endorsed politically, is likely to have authority as a source of law—as such, the DCFR will not go away (Part III). Then, moving from the positive to the normative, it argues that this likely course of events is also desirable: the CFR should play a key role as a source of inspiration in the developing multi-level system of European private law (Part IV). Subsequently, it discusses and rejects the criticism expressed by some scholars that the current draft does not have the quality to become the basis for a final CFR (Part V). Finally, it suggests ways in which the draft should beimproved (Part VI). Part VII summarises the argument and draws some general conclusions.
About the Author
Martijn W. Hesselink. Professor of European Private Law and Director of the Centre for the Study of European Contract Law, Universiteit van Amsterdam. B.A., University of Amsterdam and Université Panthéon-Assas; J.D., University of Utrecht.
Citation
83 Tul. L. Rev. 919 (2009)