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 8: The Authority of an Academic ‘Draft Common Frame of Reference’

Nils Jansen

Subjects: law - academic, european law


Nils Jansen I. INTRODUCTION The idea of a Common Frame of Reference for European contract law (CFR) is highly political. It is not only a controversial project in itself,1 but moreover it is essentially open-ended. Political actors, especially in the European Commission, have been reluctant to formulate clear aims or visions with regard to the form, the legal nature or the date for such an instrument to come into being.2 Indeed, different papers published by the Commission and by the Parliament have presented rather different ideas.3 These days, even the 1 See Jansen (2004), 1 ff.; Jansen/Zimmermann (2008), 506 ff.; Eidenmüller/ Faust/Grigoleit/Jansen/Wagner/Zimmermann (2008), 529 ff. 2 See Jansen (2006a), 540 f. 3 Thus, in 2002 the European Parliament had proposed an extremely ambitious timescale for the enactment of a European Civil Code by the year 2010 (Resolution of the European Parliament on the approximation of the civil and commercial law of the Member States [2002] OJ C140E/538). However, in a Communication entitled ‘A More Coherent European Contract Law: An Action Plan’, the European Commission relegated the idea of a Code to a secondary position; and in a later Communication the idea of a European Contract Code was explicitly rejected: Communication from the Commission to the European Parliament and the Council, ‘European Contract Law and the revision of the acquis: the way forward’, COM(2004)651 final (11 October 2004). Likewise, the Council has ‘welcomed’ ‘the Commission’s repeated reassurance that it does not intend to propose a “European Civil...

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