HESSELINK is a serious risk that those rules will not be sufficiently socialand protective as far as weaker parties are concerned, as a result of the argument that such rules would otherwise not fit in with major international commercial contracts. The end result may then be that general contract law will be mainly autonomy-based and hardly protective at all. Indeed, it seems worry ing that the PECl are very similar to the UNIDROIT Principles of International Commercal Contracts, which are exclusively intended for commercial contracts. Does this mean that the PECl have applied business logic to consumers? 18 should general contract aw be neutral, and should the protective rules(in protection of categories which are presumed to be weaker, like consumers, employees, tenants)be regarded as special private law, as opposed to general private law, which should be placed elsewhere(maybe even outside the code)? However, this approach also has certa in bear its risks. In the first place, there is no such thing as neutral general contract aw. autonomy based contract law is not neutral but Liberal (in the European sense), that is Conservative, or right wing, and it is highly questionable whether today s general contract law should be based exclusively or ma inly on party autonomy 9. Secondly, a system where all the protective rules are moved into(the)special part(s)makes the autonomy-based general contract law of little re levance since, on the one hand, the multinationals and other strong commercal parties will make their own contractual arrangements in long and detailed contracts for every imaginable contingency and will therefore probably find the default rules conta ned in the code of general contract law of little use for their Irposes, whereas, on the other hand, for consumers, employees, tenants and other weaker parties many(or even most)of these rules would not be applicable whereas the important rules would be found in the Consumer, Labour or Housing(part of the) Code Concluding, from both a practical and a political perspective it is not all that obvious whether European private law should be unitary as far as the status of parties is concerned. In any case, a classical civil code which conta ins only general private law does not seem to be the obvious structure for framing the needs of European citizens and business CHAO-DUIVIS EN H.A. W. VERMEULEN(EDS ) Beginselen van contractenrecht: Opstellen aangeboden aan B W M Nieskens-sphonding, Deventer 2000; CHRISTOPHE JAMN, Plaidoyer pour le soldarime contractual, n: Gilles Goubeaux et al (ed ) Etudes offertes a Jacques Ghest: le contrat au debutdu Xe sieck, Paris 2001, and my The Politics of European Contract Law. Who Has an Interest in What Kind of Contract Law for Europe?, cited above, footnote 2. In their Preface and Introduction the PECL frequently refer t busness. See eg. p.xXv international business community See dUNCAn KENNEDY, The Political Stakes n Merely Technical Issues of Contract Law ,10ERPL(2002), pp 7-28. See further below, VIll
HESSELINK 6 is a serious risk that those rules will not be sufficiently social and protective as far as weaker parties are concerned, as a result of the argument that such rules would otherwise not fit in with major international commercial contracts. The end result may then be that general contract law will be mainly autonomy-based and hardly protective at all. Indeed, it seems worrying that the PECL are very similar to the UNIDROIT Principles of International Commercial Contracts, which are exclusively intended for commercial contracts. Does this mean that the PECL have applied business logic to consumers?18 . Or should general contract law be neutral , and should the protective rules (in protection of categories which are presumed to be weaker, like consumers, employees, tenants) be regarded as special private law, as opposed to general private law, which should be placed elsewhere (maybe even outside the code)? However, this approach also has certain bear its risks. In the first place, there is no such thing as neutral general contract law. Autonomy based contract law is not neutral but Liberal (in the European sense), that is Conservative, or right wing , and it is highly questionable whether today s general contract law should be based exclusively or mainly on party autonomy19. Secondly, a system where all the protective rules are moved into (the) special part(s) makes the autonomy-based general contract law of little relevance since, on the one hand, the multinationals and other strong commercial parties will make their own contractual arrangements in long and detailed contracts for every imaginable contingency and will therefore probably find the default rules contained in the code of general contract law of little use for their purposes, whereas, on the other hand, for consumers, employees, tenants and other weaker parties many (or even most) of these rules would not be applicable whereas the important rules would be found in the Consumer, Labour or Housing (part of the) Code. Concluding, from both a practical and a political perspective it is not all that obvious whether European private law should be unitary as far as the status of parties is concerned. In any case, a classical civil code which contains only general private law does not seem to be the obvious structure for framing the needs of European citizens and business. CHAO-DUIVIS EN H.A.W. VERMEULEN (EDS.), Beginselen van contractenrecht: Opstellen aangeboden aan B.W.M. Nieskens-Isphording, Deventer 2000; CHRISTOPHE JAMIN, Plaidoyer pour le solidarisme contractuel , in: Gilles Goubeaux et al. (ed.), Études offertes à Jacques Ghestin; Le contrat au début du XXIe siècle, Paris 2001, and my The Politics of European Contract Law: Who Has an Interest in What Kind of Contract Law for Europe? , cited above, footnote 2. 18. In their Preface and Introduction the PECL frequently refer to business. See e.g. p. xxv ( international business community ). 19. See DUNCAN KENNEDY, The Political Stakes in Merely Technical Issues of Contract Law ,10 ERPL (2002), pp. 7-28. See further below, VIII
THE STRUCTURE OF THE NEW EUROPEAN PRIVATELAW A Multi-Level System A third fragmentation trend is what has been referred to as the development of European law into a multi-level system of governance where several institutions are responsible for the development of certa in aspects of the law but no institution is in charge of private law in its entirety. Christian Joerges suggests that: the much criticised patchwork character of European private law initiatives reflects the lack of a hierarchical order, and that Europe s legal pluralism will inevitably result in disintegrative effects within fomerly national systems. Accordingly, he argues that legal scholarship should try to imagine and conceptualise a aw of uropeanisation rather than some pan-European system that might be codified or compiled out of Europe s common legal heritage. Rather than creating new static coherent structures or rigid institutional arrangements we should find a dynamic solution for the interplay between EU law and 15 national legal systems of private law. In the process we will inevitably have to give up some of our hopes for nationa normative coherence The problems would not disappear (they would not even become significantly minor )in this respect if the eU decided to enact a European code of general contract law or even a European Civil Code2I. The presence of such a code would inevitably give rise to many questions with regard to the connection with the rest of the law First, some parts of private law would presumably remain national: the general aw ofobligations, the aw of specif ic contracts(especally protective regulation ) the hw of contracts concluded by the State(adm inistrative aw), (real) property aw(transfer of property ) the law of persons, the law of succession, the law of evidence, the law of civil procedure. This would presumably be the case for national public law, parts of which may be closely connected to private law(adm inistrative law, crim inal law constitutional law). Secondly, a part of private bw(in the sense of the awapplicable to conflicts between private persons) would indeed be adm inistered on a European level, but presumably not in the civ il code. A first example is provided by European ompetition law. This branch law frequently has a decisive influence on the ontractual relationship between private parties(distribution and franchise contracts are among the most typical examples)but it is unlikely that it will be transferred from ean Civil Code Another important example is provided by human rights. In some Europea countries an important source of private lw is the Constitution. In those countries human rights do not only have a vertical effect( they may be invoked by citizens vis-a-vis the State) but also a horizontal one(they may be invoked by citizens vis-a-vis other citizens). This horizontal effect may be either direct or indirect. In the fomer case. in her or his suit against another citizen a citizen has a claim and a See especially CHRsTIAN DERGES, Interactive Adjud caton n the Europeanisation Proce A Demanding Perspective and a Modest Example, ERPL2000, p. 1-16. See also OLIVER REMIEN Einheit, Mehrstufigheit und Flexibilitat im europaischen Privat-und Wrtschaftsrecht, 62 Rabelsz (1998),p.627f As said, the Commiss ion recently instigated the debate by publishing its Con uropean Contract La(seeabove footnote D)
THE STRUCTURE OF THE NEW EUROPEAN PRIVATE LAW 7 5 A Multi-Level System A third fragmentation trend is what has been referred to as the development of European law into a multi-level system of governance where several institutions are responsible for the development of certain aspects of the law but no institution is in charge of private law in its entirety20. Christian Joerges suggests that: the much criticised patchwork character of European private law initiatives reflects the lack of a hierarchical order, and that Europe s legal pluralism will inevitably result in disintegrative effects within formerly national systems. Accordingly, he argues that legal scholarship should try to imagine and conceptualise a law of Europeanisation rather than some pan-European system that might be codified or compiled out of Europe s common legal heritage. Rather than creating new static coherent structures or rigid institutional arrangements we should find a dynamic solution for the interplay between EU law and 15 national legal systems of private law. In the process we will inevitably have to give up some of our hopes for national normative coherence. The problems would not disappear (they would not even become significantly minor) in this respect if the EU decided to enact a European code of general contract law or even a European Civil Code21. The presence of such a code would inevitably give rise to many questions with regard to the connection with the rest of the law. First, some parts of private law would presumably remain national: the general law of obligations, the law of specific contracts (especially protective regulation), the law of contracts concluded by the State (administrative law), (real) property law (transfer of property), the law of persons, the law of succession, the law of evidence, the law of civil procedure. This would presumably be the case for national public law, parts of which may be closely connected to private law (administrative law, criminal law, constitutional law). Secondly, a part of private law (in the sense of the law applicable to conflicts between private persons) would indeed be administered on a European level, but presumably not in the civil code. A first example is provided by European competition law. This branch of the law frequently has a decisive influence on the contractual relationship between private parties (distribution and franchise contracts are among the most typical examples) but it is unlikely that it will be transferred from art. 81 EC Treaty into a European Civil Code. Another important example is provided by human rights. In some European countries an important source of private law is the Constitution. In those countries human rights do not only have a vertical effect (they may be invoked by citizens vis-à-vis the State) but also a horizontal one (they may be invoked by citizens vis-à-vis other citizens). This horizontal effect may be either direct or indirect. In the former case, in her or his suit against another citizen, a citizen has a claim and a 20. See especially CHRISTIAN JOERGES, Interactive Adjudication in the Europeanisation Process? A Demanding Perspective and a Modest Example , ERPL 2000, p. 1-16. See also OLIVER REMIEN, Einheit, Mehrstufigheit und Flexibilität im europäischen Privat-und Wirtschaftsrecht , 62 RabelsZ (1998), p. 627 ff. 21. As said, the Commission recently instigated the debate by publishing its Communication on European Contract Law (see above footnote 1)