The Evolution of European Contract Law: A brand new code, a handy toolbox or a Jack-in-the-box?

The chapter analyses the main developments in European contract and private law in recent decades, focusing on the interplay between European institutions, the courts and legal scholars, as well as the relationship between legal, political and economic factors. The first relevant instrument is the PECL (Principles of European contract law), drafted by the Lando Commission in the 1980s and 1990s, which for the first time attempted to state in a clear and comprehensive manner the main rules of general European contract law, derived from a comparative analysis of national rules. The PECL are a soft law instrument (principles) that can serve a variety of purposes, including offering a benchmark for European and national legislation, a source of persuasive rules for judges, arbitrators and contractual parties, and a basis for a future common uropean code. The success of the PECL has subsequently inspired a similar initiative in the form of the Study Group on a European Civil Code, which has worked since 1998 on drafting soft law covering most of private patrimonial law, that is, contracts, tort, benevolent intervention in another’s affairs, unjustified enrichment, and certain property law matters, such as acquisition and loss of ownership of goods, proprietary security rights in movable assets over movable property and trusts. Other academic groups, such as the Common Core of European Private Law, the Society on European Contract Law (SECOLA) and the Ius ommune project, have focused on a cultural perspective, emphasising the need to study through comparison the differences and commonalities among national legal systems, before any attempt to draft black-letter rules. European Community/Union law focused initially only on specific issues of contract law, particularly consumer contract law, and was therefore fragmented in character and in its impact on national law. Later it started work on initiatives with a wider scope. In 2001 the Commission launched a debate on the perspectives of European contract law, which also envisaged the possibility of a comprehensive binding legal instrument. In 2003 it conceived the idea of a Common Frame of Reference (CFR) containing common concepts and rules, whose drafting was entrusted to a large network of scholars, combining the members of the Study Group, the Acquis Group and others. In 2009 the network completed the Draft Common Frame of Reference (DCFR), a comprehensive instrument of soft law model rules, definitions and principles covering most areas of private patrimonial law. The final Common Frame of Reference is likely to be selected from this material by the EU institutions, but the final outcome of this process remains unclear. Meanwhile, starting from a feasibility study drafted by an Expert Group of scholars, in October 2011 the Commission presented a proposal for a Regulation establishing an Optional Instrument on European Sales Law, which was inspired by the DCFR but focuses on a much narrower topic, and aims at introducing a body of rules that can be freely adopted by parties to cross-border contracts, both B2B and B2C. In the same period, the EU institutions have adopted a comprehensive directive on consumer rights. Directive 2011/83 originally aimed at establishing fully harmonised rules in a number of crucial areas of consumer contract law, but finally reached only selective maximum harmonisation in distance and off-premises contracts. A striking feature of this instrument is the fact that it did not take into account the results contained in the DCFR, which should have been a natural reference source. The chapter concludes by analysing the future perspectives of European contract law. While it is extremely difficult to foresee the results, a crucial issue will be how to balance the increasing scope of European contract (and more generally private) law with the requirements and characteristics of national laws, which are based not only on technical but also on social justice considerations. While EU law has gradually enlarged its scope of action, it still remains fundamentally market oriented, and the development of an autonomous social model is only embryonic. The multi-level character of European contract law will therefore remain, and will require new and adequate mechanisms in order to regulate the interplay between EU and national laws.