The Europeanization of contract law is one of the most
important current developments in private law. For more than
twenty years, various scholarly initiatives have worked
towards a pan-European contract law. The European Parliament
and the European Commission have promoted or endorsed
initiatives in this area, and in April 2008 the Council of
the European Union subscribed to creating a CFR. The CFR is
conceived as 'a set of definitions, general principles and
model rules' in the field of general contract law, including
consumer law. For the time being, it is intended to provide
non-binding guidelines to be used by the Community
legislator. However, the CFR could develop into a set of
directly applicable rules of contract law which the
contractual parties might choose as the applicable law for
their transaction ('optional instrument'). Ultimately, it
might even serve as a basis of a European Contract Code.
In 2005, the European Commission commissioned a network of
researchers to elaborate a Draft Common Frame of Reference
(DCFR). The black letter rules of the DCFR were published in
early 2009.[1]The final version of the DCFR with comments and
notes is due to be published towards the end of 2009. The
European Commission is currently in the process of deciding
whether it should suggest that this academic proposal be
turned into a 'political CFR', i.e. an instrument that is
vested with authority by the legislative organs of the
European Union. It is as yet not clear whether this will be
done and, if so, to what extent the model rules of the DCFR
will be adopted in the CFR. It is, however, to be expected
that the scope of the CFR will be considerably narrower than
that of the DCFR which also covers matters other than general
contract law. The CFR is therefore likely to correspond
broadly to Books I-III which deal with general rules on
contract law.
There is, at present, a vivid debate amongst contract
lawyers all over Europe on the merits and demerits of the
idea of a CFR in general, and of the DCFR in particular. This
debate concerns a variety of topics, such as the
constitutional implications of the European Union acting in
the area of contract law and the methodological problems of
harmonising a central area of private law that is still
marked by notable differences between legal systems. Some
authors have also provided detailed criticism of parts of the
DCFR.
The Interaction Between the Common Frame of Reference and
National Law
The present project examines a different, but equally
important aspect of European contract law that has not
received much attention so far: it will analyze how the CFR
rules, once used for their intended purposes, will interact
with the legal environment in which they are to operate,
namely the domestic legal systems of the Member States; where
appropriate, the book will also set forth proposals for
improving this interaction.
The adoption of a CFR would fundamentally alter the
relationship between European and national contract laws.
Present EU contract law is characterised by a multitude of
directives which are at best loosely connected. They deal
with selected aspects of consumer protection, particular
types of contracts, or even specific contract clauses. This
fragmented ('sector specific') approach leaves it to each
domestic system to ensure, by way of implementation, that
European rules are made to dovetail with other rules of that
system. A CFR with a coherent structure, substance, style and
terminology which covers all of general contract law will
result in a very different interaction with national law,
even if the CFR is, as is currently envisaged, (only) enacted
as a non-binding guideline for the Community legislator. As a
standalone set of rules, the CFR will, within its scope of
application, cover all general contract law questions from
pre-contractual duties over formation, policing, performance
and remedies. The CFR thus will serve as a yardstick for
legislative and judge made contract law reform in the Member
States. It will also influence the interpretation of domestic
contract rules.
Moreover, a complete new set of interfaces will have to be
defined for the interaction of CFR rules with domestic rules
on particular contracts, on adjacent areas, such as tort or
unjust enrichment, or even with more remote areas like
property law, civil procedure and conflict of laws. A very
careful analysis of the differences and similarities between
CFR rules and national laws will be required to reveal those
interfaces, to identify problems, and to propose solutions.
The DCFR, to give just one example, has generalised from
particular pieces of EU legislation a wide-ranging set of
pre-contractual information duties which go far beyond any
similar duties imposed by English contract law. Once
formulated as general rules rather than as narrowly confined
provisions of several EC consumer directives, their
considerable effects on the English doctrines of
consideration and privity will become all the more apparent,
and may cause many to rethink whether what under English law
belongs to tort law should be rather considered as forming
part of contract law rules. Another example for such an
"interface" issue concerns the binding offers which consumers
can make on standard forms provided by a business under
German law, and how this relates to the rights of withdrawal
which EC consumer law offers for a variety of contracts.
Further challenges would arise if the CFR was indeed
turned into an optional instrument. One potential application
of the CFR that has been widely discussed is that
e-businesses which market goods internationally should be
allowed to offer consumers a choice of CFR based rules for
their electronic distance sales contracts by clicking on a
'blue button' (representing the European flag)[2] which, as a
Eurobarometer survey has found, most consumers would find
more attractive than the national law of the e-shop. An
optional instrument for such 'blue button contracts' would
have wide-ranging repercussions on other rules of domestic
laws, notably on jurisdiction and choice of law (albeit now
widely harmonised throughout Europe), property law
(concerning the goods), and domestic law which has gone
beyond minimum harmonisation rules, as for example the much
stricter control of standard terms under §§ 305 et
seq BGB in Germany, on collective procedures relating to the
validity of standard terms, or on unfair competition law
which goes beyond the Unfair Commercial Practices
Directive.
None of these issues has been fully explored so far, and
our project aims to fill this gap by focussing on two of the
most important legal systems in the EU, namely those of
England and Germany, as representatives of the common law and
the civil law tradition. It will provide a reality check for
the existing model rules in Books I-III DCFR, and it is hoped
that the results of the study can feed into the eventual
formulation of the final CFR. In the unlikely event that a
final CFR will have been formally adopted before the
publication of the book, the book will of course take this
final version of the instrument as a point of reference.
[1] C von Bar, E Clive and H Schulte-Nölke
(eds), Principles, Definitions and Model Rules of European
Private Law: Draft Common Frame of Reference (DCFR), Outline
Edition. Prepared by the Study Group on a European Civil Code
and the Research Group on EC Private Law (Acquis Group).
Based in part on a revised version of the Principles of
European Contract Law (Munich, Sellier, 2009).
[2] H Schulte-Nölke, 'EC Law on the
Formation of Contract - from the Common Frame of Reference to
the 'Blue Button'' (2007) 3 European Review of Contract Law
332-349.
Gerhard Dannemann, Berlin
Stefan Vogenauer, Oxford