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220 C. Hertel, Preventive Consumer Protection Notarius International 3-4/2002 1.2.3. Intellectual Fascination of the Harmonisation Process The vision of a European contract law is a fascinating idea for most European juristes. For the continental lawyer, the words harmonisation und codification brings up an idea of an heroic formative period of the law, be it the Code Napoleon for the French and others, be it the debate between Savigny and Thibault for the Germans, be it the work of Eugen Huber for the Swiss. 1.2.4. European Identity It has also been argued, that a harmonised law would also serve in order to develop a common European identity. I am not sure, wether that is true. As a practitioner, I am very relieved to hear that the Commission does not try to follow such an abstract goal, but will develop European contract law only if there is an economic argument for the harmonisation. If we talk about European identity, I prefer the more down-to-earth argument, that a harmonized law might be easier to export and therefore better for the competition of legal cultures. Even now, the possible future European contract law is already taken into account as a frame of reference for legal reform, in particular in the Eastern European candidate states 11 . 1.3. Problems of European Contract Law Everybody knows the problems which have to be overcome for a future harmonisation of European Contract Law (ECL). Let me rephrase the well known problems in some catch phrases, before I discuss whether or not the same problems also exist for an optional instrument: - The academic community has been busy building the scientific base for ECL; however the base has not yet been completed. - Harmonisation cannot avoid hard choices. - Harmonisation will not stop with contract law. - Harmonisation requires a European judicial system. - Harmonisation requires a European lawyer. - Finally: Why do we need harmonisation of the European contract law at all Is not the existing UN Convention on the Sales of Goods sufficient for all practical purposes 1.4. Optional Intrument as a Chance to test ECL With its timetable, starting first with a common frame of reference and continuing with an optional instrument, the Commission has developed a convincing roadmap for the future decision making process – a roadmap which minimizes to the greatest possible extent the problems otherwise connected with the harmonisation of contract law: - The main problem with harmonisation is that we do not know yet whether we really need it. Well, we will find it out, first with the contributions of the stakeholders envisioned by the Commission for the development of both the common frame of reference and the optional instrument, second and mainly by inhowfar businesses and people really choose the optional instrument. Now criterion could be more clear than the latter. - Second and related to the first question, we do not know whether the costs for the change are outweighed by the benefits of harmonisation. If an optional instrument should proove completely useless, that is in the worst case scenario, the academic community and the European organs would have wasted a lot of work for nothing – but that’s it. The economy or the security of legal transactions would not have suffered – unlike with a mandatory harmonized code. - Third, we do not know, whether we really can achieve a harmonized contract law. Maybe the the different legal traditions and the different legal languages are too far apart to be bridged by a single code. Whether or not these problems are managable, we can find out with an optional instrument with no risk involved except the academic effort wasted. - Finally, the proposed roadmap is also politically wise. It is hard to find a political argument against an optional instrument. An optional instrument does not abolish any legal traditions, it merely gives the parties another choice. Who could be opposed to more choices - An optional instrument is also politically wise because if anything, than an optional instrument can help keep the United Kingdom on board. And any other harmonisation effort undertaken knowing from the very beginning that it would exclude one of the major European states would seem very unwise to me. Thus, the main advantage of an Optional Instrument is that it allows to test European Contract Law. But let me spell this out in greater detail: 2. Advantages of an Optional Instrument 2.1. Common Frame of Reference as Basis for an Optional Instrument Within the last years or even decades, a lot of work has been invested in European contract law. However, there is still a lot to be done. One of the most basic problems is the difference of legal terms. This is not merely a problem of linguistics, but a consequence of different legal concepts. The English language, in particular, does not include precise terms for many important civil law concepts. These terms still have to be developed. - E.g. if I am talking to an English colleague about my job, how do I translate “notarielle Beurkundung” Is it “notarial act” or “notarial deed” or even better “authentic act” (“acte authentique”) – admitting that the 11 E.g. in Estonia, the legislator has expressly consulted as an example for the new law of obligations not only the national laws of Germany, the Netherlands and Switzerland, but also the Principles of European Contract Law (PECL) of the Lando Commission (comp. Mikk, Zur Reform des Zivilrechts in Estland, JOR (= Jahrbuch für Ostrecht) 42 (2001), 31-51).
Notarius International 3-4/2002 C. Hertel, Preventive Consumer Protection 221 English language does not have a proper word I think, it is either the first or the latter, but I do not yet see a common terminology here. - Is the concept of “Freiwillige Gerichtsbarkeit” translated adaequately by “voluntary jurisdiction” or rather by “non-contentious jurisdiction” Here at least, we have two possible translations, though none yet has been fixed as a technical term. - And how about “Vorsorge als Rechtsprinzip” which had been the title of a lecture on a similar subject as today during the German Notary Congress 2002 in Dresden 12 Is it “preventive protection” (as in the title of this article) or “preventative protection” So I warmly welcome the Action’s Plan proposal to start with a common frame of reference 13 which would define at least the most basic terms and concepts of contract law and provide us with a common legal language even if we still talk different linguistic languages. The definitions in a common frame of reference would also help us to get rid of the superfluous definitions contained in every single directive now. I still remember very clearly the first time I read a European directive in law school. Having been trained in the German law with a very clear system of definition of legal terms, I was abhorred by finding every single term defined in every single directive – and even defined differently in different directives. 2.2. Harmonisation cannot avoid hard choices One problem an Optional Code cannot avoid is to make hard choices between different solutions in the existing national laws. Any harmonisation of the substantive civil law in Europe will have to bridge the differences between the national legal cultures. The main difference, of course, is the one between the continental law on the one hand and the common law on the other hand (with the nordic countries somewhere in between), but many legal questions are also solved differently in the various continental states, not to mention further specific problems of the candidate states due to their recent transition from communist rule. Just to give you two examples: - Probably, the common law states would have to accept specific performance as the rule rather than the exception. - Also the concept of precontractual liability (if one party does walk off from contract negotiations) is well known in many continental legal systems, but largely unknown in the common law. There is no common denominator for these differing concepts. Here, the legislator will have to make some hard choices 14 . It is not possible to bridge the difference by a mere formula compromise – neither in mandatory law nor in an optional instrument. Thus the PECL rules on these two points (PECL 2:301 and 9:102) have been critized as deliberately vague recently by Smits 15 . Prof. Remy Corlay, has said she would not be afraid just to codify the abstract concept such as precontractual disclosure. I strongly object. In the national context, such abstract principles have been defined by several decades of jurisdiction and jurisprudence. In the context of any given national law, the national lawyer knows what the outcome of such an abstract principle would be if being applied to a given case. However, with a European abstract concept, nobody would know 16 . Instead one would have to ask on which national system the particular European concept is based – but still one would have to take into account, that mostly the European concept would be a mix of several national models. Can we manage this task without developing too complicated rules There are warning examples in European law. I might mention the 11th directive on Company Law concerning foreign branch offices 17 . The rules thereby created on foreign branch offices are so complicated, that in practice most companies prefer to establish a foreign subsidiary, because it is easier. Normally, it should be rather the other way round. 2.3. Impacts of European Contract Law on other areas of the law Any change in contract law might have far reaching consequences in other legal areas, e.g.: - Normally, one would first think of securities and insolvency: One might think about the halfhearted regulations on the reservation of title in the late payments directive 18 . European contract law might also bring up the question which types of contracts can be invalidated by insolvency. Thus, the harmonisation of con- 12 Richter, Vorsorge als Prinzip einer sozialen Rechtsordnung in Europa, DNotZ 2002, 29* (special edition Deutscher Notartag). 13 Similarly, the European Parliament in its resolution on European contract law of 15th november 2001 proposed to create first a database for the legal terms of contract law. 14 Some of the changes caused in the Dutch law by the application of the Lando Principles are discussed by D. Busch/E. Hondius, Ein neues Vertragsrecht für Europa: Die Principles of European Contract Law aus niederländischer Sicht, ZEuP (Zeitschrift für Europäisches Privat-recht) 2001, 223-247. 15 J. Smits, Some critical remarks ont the use of the principles of European Contract Law, Notarius International 2001, 142. 16 For an excellent case study of the application of the concept of good faith in different European jurisdictions comp. R. Zimmermann/S. Whittaker, Good Faith in European Contract Law, Cambridge (Cambridge University Press) 2000. The diffenences in some other general concepts are discussed in some contributions in: A. Hartkamp/M. Hesselink/E. Hondius/C. Joustra/E. Du Perron, Towards a European Civil Code, 2nd ed., The Hague/London/Boston (Kluwer Law International) 1998. My scepticism is shared e.g. by E. Hondius, Finding the Law and Harmonisation of Private Law in Europe, in: H. Schulte-Nölke/Reiner Schulze (ed.), Europäische Rechtsangleichung und nationale Privatrechte, Baden-Baden (Nomos) 1999, p. 393. 17 Eleventh Council Directive 89/666/EEC of 21 December 1989 concerning disclosure requirements in respect of branches opened in a Member State by certain types of company governed by the law of another State, Official Journal 1989 L 395 , P. 36-39. 18 Retention of title – article 4 of the Directive 2000/35/EC of the European Parliament and of the Council of 29 June 2000 on combating late payment in commercial transactions, Official Journal L 200, 08/08/2000 p. 35-38, in internet see: http://europa.eu.int/eur-lex/pri/ en/oj/dat/2000/l_200/l_20020000808en00350038.pdf
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