The Politics of the Draft Common Frame of Reference
Recently, following work supported by the European Commission, the Outline Edition of the Draft Common Frame of Reference (DCFR) concerning European private law was published. However, the Commission’s project has been seriously challenged, right down to its basic perception—that obstacles and disincentives to cross-border transactions caused by excessive national divergence in contract law must be overcome. In particular, the Social Justice Study Group law founded in 2003 has fore fronted critical perspectives based on normative policy. The group focuses on the ‘democratic deficit’ that characterizes the Commission’s approach to European private law.
This collection of essays reflects both the diversity of the group’s work and the common thread that runs through it. The core claim here is that the DCFR, despite the Commission’s characterization of its proposals as purely technical, cannot escape politics. The intent is to critically identify and evaluate the model of social justice underlying the DCFR. Although each essay stresses the author’s particular political and cultural views on the topic, the demand for an involvement of democratic institutions and civil society in the construction of a European private law is common to all.
Among the critical issues raised are the following:
- party autonomy versus solidarity;
- the undermining of the welfare state’s regulatory framework;
- the use of the competition mechanism as an instrument of State intervention;
- commutative justice versus distributive justice;
- contract law and social market economy;
- how maximum harmonization reduces consumer protection;
- harmonization as an alibi for reducing a level of protection previously guaranteed;
- the marginalization of the European Parliament;
- the absence of general enterprise liability in the DCFR;
- the importance of weaker-party-friendly orientation in contract law;
- the implied threat of an artificial European civil society made of producers and consumers; and
- the lack of public enforcement in the removal of unfair terms in consumer contracts.
All the authors are committed to the development of a European identity over the development of the internal market, and to that extent the book may be controversial. As Community initiatives on European private law continue to multiply, this important book takes a significant step toward understanding the participatory procedures that must be taken to protect the multicultural and multilingual society to which European private law is applied, and to clarify in advance the model of social justice on which to build a European contract law.
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List of Contributors, Preface , List of Abbreviations , Part One The Shaping of a European Private Law Chapter 1 An Optional Instrument for Consumer Contracts in the EU: Conflict of Laws and Conflict of Policies Aurelia Colombi Ciacchi Chapter 2 Grand European Code Napoléon or Concise Uniform Contract Law? Defining the Scope of a Common Frame of Reference Stefan Grundmann Chapter 3 The DCFR: A Technical or Political Toolbox? Ruth Sefton-Green Chapter 4 Some Like It Soft: Soft Law and Hard Law in the Shaping of European Contract Law Alessandro Somma Part Two Freedom of Contract and Social Justice Chapter 5 Party Autonomy and Freedom of Contract Today Guido Alpa Chapter 6 The CFR and Social Justice Martijn Hesselink Chapter 7 The DCFR, Public Policy, Mandatory Rules, and the Welfare State Jacobien W. Rutgers Part Three Consumer Protection Chapter 8 Much Ado About (Almost) Nothing: The Integration of the So-Called ‘Consumer Acquis’ in the Draft Common Frame of Reference Brigitta Lurger Chapter 9 Unfair Terms and Unfairness Test in Contracts between Businesses and Consumers Marisa Meli Chapter 10 ‘Technical Harmonization’ versus Substantive Differences: Termination and Withdrawal in the Draft Common Frame of Reference Peter Rott Part Four Other Specific Issues Chapter 11 Non-contractual Liability Arising Out of Damage Caused to Another: The Making of a Hybrid Gert Brüggemeier Chapter 12 On the Economics of Good Faith Acquisition Protection in the DCFR Arthur F. Salomons ,