European Private Law
Full course description
This course aims to make its participants familiar with the area of European Private Law. Only two decades ago, this aim would have been perceived as far too difficult to attain: until 1990 or so, there was no such thing as ‘the European Law of Contract’. Over the last decade however, scholarly efforts to build such a uniform contract law on the basis of comparative legal research coincided inter alia with the issuing of important European Directives in this field and the drafting of principles of contract law based on comparative research. These principles include the Principles of European Contract Law (PECL) and the Principles of European Law (PEL), dealing with topics such as sales and services contracts. These initiatives have not in themselves led to a great deal of uniform contract law for the European Union, but what has emerged is the idea (shared by many scholars and practitioners) that it is possible to come up with such a uniform law in the future. In any event, this has led to the assumption that European Contract Law can be taught at universities by uncovering the similarities and differences between the various European legal systems and by pointing at the unifying instruments that already exist. Recently (January 2008) a massive effort of scholarly work led to the publication of a Draft Common Frame of Reference of European Private Law (DCFR), based on the PECL and further comparative research. In 2009 a renewed and updated version of the DCFR was released and presented to the European Commission in the form of 6 volumes of over 6000 pages. An expert group worked to turn the (academic) DCFR into a (political) CFR, which could serve as a so-called optional instrument in the field of contract law. The result was a feasibility study that formed the basis for the European Commission’s proposal on a Common European Sales Law (CESL), which was proposed in October 2011.
The CESL has been the subject of a heavy debate among academics, but also among politicians and Member States. The European Parliament was relatively happy with the Commission’s proposal, but it soon became clear that the Commission’s proposal would not make it in Council. Hence, when the Juncker Commission started late 2014 it revoked the CESL proposal. Instead, using a new thematic approach, the European Commission launched a proposal relating to digital sales only. For the moment, these proposals have been under consideration, as the European Union is dealing with other pressing matters.
One of the most pressing matters is – of course – the invoking of Article 50 TEU by the United Kingdom. While the negotiations for a #Brexit are ongoing, the European Union continues, perhaps – following the celebrations of the 60th anniversary of the Treaty of Rome (i.e. the original EEC Treaty) – at different speeds. The role of private law is very important and talk of a European Business Code has surfaced.
The European Union has not been sitting still in the past years in the field of private law. In October 2008, the European Commission proposed a draft Directive, which aimed to replace some of the existing contract law Directives, seeking more coherence. The interesting thing about this draft directive is that the European Commission is changing its approach from minimum harmonisation to full (or maximum) harmonisation and is under fierce attack for it. A new and less ambitious draft was published in 2011, which was also adopted in October 2011.
By far the largest body of European Contract Law deals with consumers. This is mostly due to the nature of European legislation. After all, the European legislature must show aim and reason before it can issue harmonising measures. It is sometimes held that because of this there is legislation at different levels, dealing differently with similar subject matter. The European Commission is organised in several Directorates-General (DG’s) (perhaps best compared to the ministries of the Member States) that operate on a semi-autonomous basis. Of course there is coordination between the DG’s, and there is some steering from the College of Commissioners (the full meeting of all Members of the European Commission), but – and this has been a major criticism in the past – this coordination has not always been successful. At least, part of the fragmentary character of European Contract Law at present can be attributed to bad coordination.
Because of this competence-oriented approach, consumer law takes a central place in the field of European contract law. In European Union speak, this part of the law deals with contracts between businesses and consumers, so-called ‘B2C’ transactions. In addition to this, there are also European initiatives taken that deal more with commercial relationships, so-called ‘B2B’ (business to business) transactions.
CESL and the digital sales proposal have provided us a glance at what the European Private Law of the future can look like, certainly combined with other legislative initiatives taken by the Commission, such as the Consumer Rights Directive. However, at the same time these proposals also show the limit of what the EU is politically able to achieve in this area. It is that future that is the central focus point of this course.
In this course you will, after 2 weeks of introduction be part of a EU Council of Ministers Working Party on civil justice dealing with a fictive proposal on a European Private law prepared by a group of students representing the European Commission. You can have influence on the delegation you are part of for this course, which can be presiding over meetings (teaching leadership), the European Commission (focusing on legislative drafting), a number of Member States (focusing on the Europeanisation process in private law) and a special institute of Law and Economics with special advisory powers. The course if finalised by a simulation of a COREPER II negotiation session during a whole day in the exam week.
At the end of this course you will have:
- Knowledge of existing EU private law as well as knowledge about future initiatives
- Knowledge and understanding of the European private law debate
- Shown your ability to apply your knowledge of EU private law to a concrete subject area dealing with contract, tort or property.
- Understanding of the relationship between EU law and national law in the area of private law
- Shown your ability to work with the vertical dimensions between the EU leval and the Member States.
- Acquired and demonstrated basic negotiation skills and the ability to apply these in an EU private law setting.
None, but a course in national or comparative contract law, property law and/or tort law is preferred.
Pre-requisite knowledge of private law is helpful, but not necessary. Also a basic course in EU law, both institutional and substantive, is helpful but not required.
- W.A. Bull