A COMMON FRAM OF REFERENCE FOR EUROPEAN PRIVATE LAW – WHAT NOW?

Lecture Tartu 22 May 2009 – Professor Kåre Lilleholt, University of Oslo

1 The Common Frame of Reference – present status
A Draft Common Frame of Reference (DCFR) for European private law was delivered to the Commission in December
2008. The “black letter rules” are published.1 A full version with comments and comparative notes will be published autumn
2009 (more than 6000 pages).2 This is the delivery from the Study Group on a European Civil Code and the Research Group
on EC Private Law (Acquis Group) under a contract with the Commission.3
Two French organisations, Association Henri Capitant des Amis de la Culture Juridique Française and Société de
Législation Comparée, both participants of the same research network under the same contract, published two books in 2008
which may be seen as a an alternative to the DCFR: one book on common contractual principles and one book on common
contractual terminology.4
The proposal for a new directive on consumer rights may be regarded as belonging to the same discussion.
2 The background
Contract law, as well as other fields of private law, differs from country to country in Europe. Traditionally, legal problems
arising from cross-border relations have been dealt with in private international law (choice of law rules) and to some extent
by conventions (e.g. the United Nations Convention on Contracts for the International Sale of Goods 1980).
Legislation of the European Union includes some contract law, in particular consumer contract law. Fundamental values and
principles are common to all European countries and may form the basis for a European private law.5
International principles and model rules have been proposed, like the Principles of European Contract law (PECL) and the
Unidroit Principles of International Commercial Contracts.
Influence of harmonisation instruments in national law, e.g. Estonia.6
3 The academics
During the last thirty years, several academic groups have been working with various aspects of European private law. Some
of them will be mentioned here:
The Principles of European Contract Law was prepared by the Commission on European Contract Law (“the Lando
Commission).7
The Study Group on a European Civil Code is the successor of the Lando Commission. The Study Group has prepared
several volumes of Principles of European Law and more volumes are forthcoming.8
The Acquis Group “targets a systematic arrangement of existing Community law which will help to elucidate the common
structures of the emerging Community private law”.9 To date, one volume on pre-contractual obligations, conclusion of
contract and unfair terms has been published (in addition to the DCFR).10
The Common Core of European Private Law Project (“the Trento Common Core Project”), under the leadership of Ugo
Mattei and Mauro Bussani, has completed several comparative studies on European private law.11
The Academy of European Private Lawyers, (“Gandolfi Project”) based in Pavia, has published a draft “European Contract
Code”, inspired by the Italian Civil Code and a draft Contract Code prepared for the Law Commissions of England and
Scotland by Harvey McGregor.12
The European Group on Tort Law (“Tilburg Group”) has drafted Principles of European Tort Law.13

1
C. V. BAR et al., eds., Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR).
Outline Edition, Munich 2009.
2
See
http://www.sellier.de/pages/en/buecher_s_elp/europarecht/643.principles_definitions_and_model_rules_of_european_private_law.htm
(accessed 21 April 2009).
3
More on the contract and the network, http://www.copecl.org/.
4
B. FAUVARQUE COSSON and D. MAZEAUD, eds., Projet de cadre commune de référence. Principes contractuels communs, Paris
2008; B. FAUVARQUE COSSON and D. MAZEAUD, eds., Projet de cadre commune de référence. Terminologie contractuelle commune,
Paris 2008; English short version, B. FAUVARQUE COSSON and D. MAZEAUD, eds., European Contract Law. Materials for a Common
Frame of Reference. Terminology, Guiding Principles, Model Rules, Munich 2008.
5
See in particular, G. ALPA and M. ANDENAS, Fondamenti del diritto privato europeo, Milano 2005
6
I. KULL, "Reform of Contract Law in Estonia. Influences of Harmonisation of European Private Law", Juridica International XIV, no. I
2008, 122–129.
7
O. LANDO and H. BEALE, eds., Principles of European Contract Law. Parts I and II Revised, The Hague 2000; O. LANDO et al., eds.,
Principles of European Contract Law. Part III, The Hague 2003. Black letter rules in several language versions are available at
http://frontpage.cbs.dk/law/commission_on_european_contract_law/index.html.
8
C. V. BAR, Benevolent intervention in another's affairs (PEL Ben. Int.), Munich 2006; M. W. HESSELINK et al., Commercial agency,
franchise and distribution contracts (PEL CAFDC), Munich 2006; M. BARENDRECHT et al., Service contracts (PEL SC), Munich 2007;
U. DROBNIG, Personal security (PEL Pers. Sec.), Munich 2007; E. HONDIUS, Sales (PEL S), Munich 2008; K. LILLEHOLT et al.,
Lease of goods (PEL LG), Munich 2008. More information at www.sgecc.net.
9
Quoted from www.acquis-group.org.
10
Contract I: pre-contractual obligations, conclusion of contract, unfair terms. Prepared by Research Group on the Existing EC Private
Law (Acquis Group), München 2007. Chapter 8 on ”remedies” is published in R. SCHULZE, ed., Common frame of reference and existing
EC contract law, Munich 2008.
11
See for a comprehensive list of publications, www.jus.unitn.it/dsg/common-core.
12
G. GANDOLFI and L. GATT, eds., Code européen des contrats: avant-projet, Milano 2004. Black letter rules of this first Book as well
as of the first Title (Sale) of the second Book are available at http://www.accademiagiusprivatistieuropei.it.
13
Principles of European tort law: text and commentary, Wien 2005. Black letter rules in several languages are available at www.egtl.org.
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The Commission on European Family Law conducts research concerning the harmonisation of family law in Europe.14
The Unidroit Principles of International Commercial Contracts are not limited to Europe; on the other hand they deal with
commercial contracts exclusively.15
The draft revision of French Code Civil (l’avant-projet Catala) should also be mentioned.16
4 The politicians
The European Parliament has underlined the need for harmonisation of European private law (at times even a civil code).17
The Commission’s “action plan” for “a more coherent European contract law” led to the research project for preparation of a
“common frame of reference”.18
Views on the further process differ.19 Meeting in Stockholm October 2009.
5 DCFR – overview
DCFR has the structure of a civil code:20
Book I General provisions
Book II Contracts and other juridical acts (pre-contractual duties, formation of contract, representation, invalidity,
interpretation, etc.)
Book III Obligations and corresponding rights (performance, remedies for non-performance, transfer of rights and
obligations, set-off, prescription)
Book IVSpecific contracts and the rights and obligations arising from them (sales, leases, services, mandate, commercial
agency, franchise and distributorship, loan contracts, personal security, donation
Book V Benevolent intervention in another’s affairs
Book VINon-contractual liability arising out of damage caused to another
Book VII Unjustified enrichment
Book VIII Acquisition and loss of ownership of goods
Book IXProprietary security rights in movable assets
Book X Trusts
6 A future political common frame of reference?
Commission: it will not become a European civil code.21
Will it be a ”a toolbox” and ”a better regulation instrument” (Commission);22 a ” tool for better lawmaking targeted at
Community lawmakers”, ”a set of non-binding guidelines to be used by lawmakers at Community level on a voluntary basis
as a common source of inspiration or reference in the lawmaking process”; scope: ”general contract law including consumer
contract law” (Council).23
Parliament: a tool for lawmaking should have a wide scope.24
7 Principles
DCFR:25
”Underlying principles”: ”freedom, security, justice and efficiency”
”Overriding principles”: ”protection of human rights, promotion of solidarity and social responsibilty, preservation
of cultural and linguistic diversity, protection and promotion of welfare, promotion of internal market”. And also
here: ”freedom, security, justice and efficiency”
French proposals:
”La liberté, la sécurité et la loyauté contractuelles”.26

14
See for publications etc., www2.law.uu.nl/priv/cefl.
15
Unidroit principles of international commercial contracts 2004, Rome 2004. More information at www.unidroit.org. See also M. J.
BONELL, An international restatement of contract law: the UNIDROIT Principles of International Commercial Contracts, Ardsley, N.Y.
2005; M. J. BONELL, ed., The Unidroit Principles in Practice: Caselaw and Bibliography on the Unidroit Principles of International
Commercial Contracts, Ardsley, N.Y. 2006.
16
See http://lesrapports.ladocumentationfrancaise.fr/cgi-bin/brp/telestats.cgi?brp_ref=054000622&brp_file=0000.pdf. See for similar
discussions in Italy, V. JACOMETTI and B. POZZO, "L'Avant-Projet Catala dans la Perspective de Recodification du Droit Italien des
Obligations", European Review of Private Law 15, no. 6 2007, 821–835.
17
See for a recent statement, resolution 3. september 2008, www.europarl.europa.eu/sides/getDoc.do?type=TA&reference=P6-TA-2008-
0397&language=EN&ring=B6-2008-0374.
18
COM(2003) 68 final; see also COM(2001) 398 final; COM(2004) 651 final; COM(2005) 456 final; COM(2007) 447 final.
19
See for the discussion of the Council and excepts from the program for the Czech presidency, http://www.copecl.org/ (accessed 14. April
2009).
20
See for discussion on the DCFR, e.g. Juridica International, 2008, issue 1(European Initiatives (CFR) and Reform of Civil Law in New
Member States); ERA Forum, 2008, issue 9, supplement 1.
21
COM(2007) 447 final, 11.
22
Ibid., 11.
23
Three last quotes from Council press release 18. April 2008
(www.consilium.europa.eu/cms3_applications/Applications/newsRoom/LoadDocument.asp?directory=en/jha/&filename=99991.pdf).
24
See footnote 17.
25
BAR et al., eds., Principles, Definitions and Model Rules of European Private Law. Draft Common Frame of Reference (DCFR). Outline
Edition, , 13–17.
26
FAUVARQUE COSSON and MAZEAUD, eds., Projet de cadre commune de référence. Principes contractuels communs, , 197–198;
FAUVARQUE COSSON and MAZEAUD, eds., European Contract Law. Materials for a Common Frame of Reference. Terminology,
Guiding Principles, Model Rules, , 571–572 (”freedom of contract, contractual certainty, contractual fairness”).
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8 Structure
From contract law (in PECL) to the law of obligations. Inclusion of other private law areas. Too theoretical?27 Or is the
theoretical approach inconsistent and incomplete?28
9 Social justice and contract law?
Are ideas of welfare and social justice sufficiently taken care of?29 Should we rather have “a free movement of legal ideas
and doctrines”?30
Or is the DCFR going too far in regulation contracts?31
10 Is the DCFR sufficiently modern?
Does it address today’s contract problems?32 Too much based on national law?33 Does it reflect the “multi-level governance”
issues?34
11 Other discussions
Does business need harmonisation of contract law?35
Has EU competence to harmonise private law?36
Is harmonisation possible if law is regarded of national culture? 37 Can English serve as a “lingua franca”?38
Is this the kind of work academics should do?39
12 What Now? The Proposal for a Consumer Rights Directive
COM(2008) 614 final. Proposal for a directive of the European Parliament and of the Council on consumer rights. Currently
in the Parliament. Probably no decision until autumn 2009.

27
Critical remarks, O. LANDO, "The Structure and the Legal Values of the Common Frame of Reference (CFR)", European Review of
Contract Law 3, no. 3 2007, 245–257; R. SCHULZE and T. WILHELMSSON, "From the Draft Common Frame of Reference towards
European Contract Law Rules", European Review of Contract Law 4, no. 2 2008, 154–169; B. FAUVARQUE COSSON, "Les travaux du
groupe Association H. Capitant des Amis de la Culture Juridique Française/Société de législation comparée: terminologie, principes
directeurs et révision de Principes du droit européen du contrat", Era Forum 9 Supplement 1 2008, 51–64; H. COLLINS, "Christian von
Bar, Eric Clive, Hans Schulte-Nölke (eds), Principles, Defnitions and Model Rules of European Private Law", The Modern Law Review 71,
no. 5 2008, 840–844. Response to critic, M. STORME, "Une question de principe(s)?" Era Forum 9 Supplement 1 2008, 65–77; E.
CLIVE, "An Introduction to the Academic Draft Common Frame of Reference", Era Forum 9 Supplement 1 2008, 13–31.
28
A. VAQUER, "Farewell to Windscheid? Legal Concepts Present and Absent from the Draft CFR," (2009),
http://ssrn.com/paper=1372139
29
"Social Justice in European Contract Law: a Manifesto", European Law Journal 10, no. 6 2004, 653–675; U. MATTEI and F. G.
NICOLA, "A 'Social Dimension' in European Private Law? The Call for Setting a Progressive Agenda," Global Jurist 7, no. 1 (2007),
http://www.bepress.com/gj/vol7/iss1/art2/; LANDO, "The Structure and the Legal Values of the Common Frame of Reference (CFR)", .
See also SCHULZE and WILHELMSSON, "From the Draft Common Frame of Reference towards European Contract Law Rules", .
30
T. WILHELMSSON, "The Ethical Pluralism of Late Modern Europe and Codification of European Contract Law," in The Need for a
European Contract Law: Empirical and Legal Perspectives, ed. J. Smits, Groeningen 2005.
31
H. EIDENMÜLLER et al., "Der Geimeinsame Referenzrahmen für das Europäische Privatrecht. Wertungsfragen und
Kodifikationsprobleme", Juristenzeitung 63, no. 11 2008, 529–584.
32
S. GRUNDMANN, "The Structure of the DCFR - Which Approach for Today's Contract Law?" European Review of Contract Law 4, no.
3 2008, 225–248.
33
J. M. SMITS, "The Draft-Common Frame of Reference, Methodological Nationalism and the Way Forward", Ibid., 270–281.
34
H. MICKLITZ and N. REICH, "Unfair Terms in the Draft Common Frame of Reference", Juridica International XIV 2008, 58–68.
35
S. VOGENAUER and S. WEATHERILL, "The European Community's competence for a comprehensive harmonisation of contract law
– an empirical contribution to the debate," in The Harmonisation of European Contract Law, ed. S. Vogenauer and S. Weatherill, Oxford
2006 (yes); J. MANCE, "Is Europe Aiming to Civilise the Common Law", European Business Law Review 2007, 77–99 (no); G. C.
MOSS, "International Contracts between Common Law and Civil Law: Is Non-state Law to Be Preferred? The Difficulty of Interpreting
Legal Standards Such as Good Faith," Global Jurist 7, no. 1 (2007), http://www.bepress.com/gj/vol7/iss1/art3 (skeptical); cf. G. C. MOSS,
"Contracts between Consumer Protection and Trade Usages: Some Observations on the Importance of State Contract Law," in Common
Frame of Reference and Existing EC Contract Law, ed. R. Schulze, München 2008. See also overview of discussion in E. MCKENDRICK,
"Harmonisation of European Contract Law: The State We Are In," in The Harmonisation of European Contract Law, ed. S. Vogenauer and
S. Weatherill, Oxford and Portland, Oregon 2006.
36
S. WEATHERILL, "Constitutional Issues – How Much is Best Left Unsaid?," in The Harmonisation of European Contract Law, ed. S.
Vogenauer and S. Weatherill, Oxford and Portland, Oregon 2006.
37
O. LANDO, "Culture and Contract Laws", European Review of Contract Law 3, no. 1 2007, 1–21 (yes); P. LEGRAND, "Antivonbar",
The Journal of Comparative Law 1, no. 1 2007, 13–40 (no). See for nuances, T. WILHELMSSON, "Introduction: Harmonization and
National Cultures," in Private Law and the Many Cultures of Europe, ed. T. Wilhelmsson, E. Paunio, and A. Pohjolainen, Alphen aan den
Rijn 2007.
38
R. SEFTON-GREEN, "Sense and Sensibilities: The DCFR and the Preservation of Cultural and Linguistic Plurality", European Review
of Contract Law 4, no. 3 2008, 281–304.
39
H.-W. MICKLITZ, "Review of academic approaches to the European contract law codification project," in Liber amicorum Guido Alpa.
Private Law Beyond the National Systems, ed. M. Andenas, et al., London 2007.
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This “horizontal instrument” is to replace and revise four existing directives, namely the Doorstep Selling Directive,40
the Distance Contracts Directive,41 the Unfair Contract Terms Directive,42 and the Consumer Sales Directive.43 The proposal
includes a full harmonisation clause (Art. 4), to the effect that the Member States
may not maintain or introduce, in their national law, provisions diverging from those laid down in this
Directive, including more or less stringent provisions to ensure a different level of consumer protection.
Full harmonisation is controversial. The draft, if implemented, will entail reduction of consumer protection in almost every
EU (and EEA) state.
Some examples:44
– consumer’s choice of remedy
– time limits (second-hand goods, time-barring of remedies)
– producer’s liability
– unfair terms
Consumer protection as a goal and as a means to enhance the internal market?45
Do we see the consequences of contract law harmonisation?
The draft directive has not taken up the terminology, system or rules from the DCFR.46
Future of the Common Frame of Reference. A set of principles? Limited to contract law, even to consumer contracts?

40
Council Directive 85/577/EEC of 20 December 1985 to protect the consumer in respect of contracts negotiated away from business
premises.
41
Directive 97/7/EC of the European Parliament and of the Council of 20 May 1997 on the protection of consumers in respect of distance
contracts (as amended).
42
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts.
43
Directive 99/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and
associated guarantees.
44
See for existing national legislation, EU Consumer Law Compendium, http://ec.europa.eu/consumers/rights/cons_acquis_en.htm#comp.
45
See e.g. É. POILLOT, Droit européen de la consommation et uniformisation du droit des contrats, Paris 2006; M. W. HESSELINK,
"European Contract Law: A Matter of Consumer Protection, Citizenship, or Justice?" European Review of Private Law 15, no. 3 2007,
323–349; H.-W. MICKLITZ et al., Understanding EU consumer law, Antwerp 2009, s. 17–20.
46
M. HESSELINK, "The Consumer Rights Directive and the CFR: two worlds apart?," Centre for the Study of European Contract Law
Working Paper Series, no. No. 2009/02 (2009), http://ssrn.com/abstract=1346981; K. LILLEHOLT, "A step backwards for consumer
protection and for contract law harmonization? Notes on the proposal for a new directive on consumer rights", European Review of Private
Law 17, no. 3 2009, 335–343; J. M. SMITS, "Full Harmonization of Consumer Law? A Critique of the Draft Directive on Consumer
Rights," TICOM Working Paper on Comparative and Transnational Law, no. 2009/2 (2009), TICOM Working Paper on Comparative and
Transnational Law 2009/2