Edited by Hans-W. Micklitz and Fabrizio Cafaggi
Chapter 3: The Role of Competition in the European Codification Process
Stefan Grundmann I. CODIFICATION? QUALITY? Most notable contract lawyers in countries such as Germany and Italy (countries which are still rather positive about a European contract law, and even about its codification in an optional instrument) seem to be highly sceptical about the outcome of the (Academic) Common Frame of Reference (‘ACFR’).1 They have different concerns, reflecting their differing approaches to contract law. Amongst the concerns they have identified are that there is little new in the ACFR; it contains an abundance of vague decisions or nondecisions on core questions; it lacks a convincingly coherent structure; and it contains virtually no input from other branches of the social sciences which engage substantially with contract; and, more generally, it inadequately reflects concerns for ‘social justice’.2 Furthermore, the ACFR has been seen as 1 C. v Bar, E. Clive, H. Schulte-Nölke et al. for the Study Group on a European Civil Code and Research Group on EC Private Law (Acquis Group) (eds.), Principles, Definitions and Model Rules of European Private Law – Draft Common Frame of Reference (DCFR) (Munich: Sellier, 2008). Irrespective of the impact of the ACFR on it, this chapter does not deal with the so-called ‘horizontal directive’ in the core area of consumer law, consolidating the four directives on Sales, Unfair Terms, Doorstep and Distance Selling, in one; see now Proposal for a Directive of the European Parliament and of the Council on Consumer Rights, COM(2008)614 final. This directive mainly concerns the restructuring of a well...
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