European Private Law after the Common Frame of Reference

European Private Law after the Common Frame of Reference

Edited by Hans-W. Micklitz and Fabrizio Cafaggi

This book paves the way for, and initiates, the second-generation of research in European private law subsequent to the Draft Common Frame of Reference (DCFR) needed for the 21st century. The book gives a voice to the growing dissatisfaction in academic discourse that the DCFR, as it stands in 2009, does not actually represent the condensed available knowledge on the possible future of European private law. The contributions in this book focus on the legitimacy of law making through academics both now and in the future, and on the possible conceptual choices which will affect the future of European private law. Drawing on experience gained from the DCFR the authors advocate the competition of ideas and concepts.

Chapter 1: Towards a European Private Law? The Common Frame of Reference in the Conflict between EC Law and National Laws

Alessandro Somma

Subjects: law - academic, european law

Extract

Alessandro Somma 1. ACADEMICS AND STAKEHOLDERS IN THE MAKING OF EUROPEAN PRIVATE LAW About three years ago, the European Commission appointed an international network of research groups (Joint Network on European Private Law) to develop ‘a Common Frame of Reference for European Contract Law’ (Cfr), expected to be presented in the form of a ‘draft’ (Dcfr). The aim is to provide ‘principles, definitions and model rules’, identified by ‘taking into account national laws’, including both case law and established practice, as well as ‘the EC acquis and relevant international instruments’ (FP 6 – Contract n. 513351). The Cfr will assist in the improvement of ‘the quality of legislation already in place’ towards ‘a modernisation of existing instruments’ and may form the basis of an ‘optional instrument not limited to particular sectors’, which would provide parties to a contract with ‘a modern body of rules particularly adapted to cross-border contracts in the internal market’ (COM(2001)398 final and COM(2003)68 final). Its immediate purpose is to act as a ‘guide or tool box’ for the EC legislator in the revision of the acquis (Von Bar et al., 2008a, p. 37). The Cfr will also contribute to the making of a European legal science, something which is considered by many an essential condition for the development of European private law. The first results are now available in an interim edition (Draft Common Frame of Reference – Interim edition (Dcfr-Ie). Articles without further indication belong to this text) (Von Bar et al., 2008b)...

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