Legal engineering at the services of European private law (EPL)

Abstract

The emergence of a common private law for Europe is a topical issue. Over the last quarter of a century many academics, practitioners and to a lesser extent European politicians have debated on the question to what extent the European Union (EU) is in need of a uniform private law and what this should look like. The starting point of this debate can be traced to the 1989 resolution of the European Parliament in which it called for the elaboration of a European civil code. Since then many books and journal articles have been devoted to the future of private law in Europe. This exercise have reached a new climax with the publication of the Draft Common Frame of Reference (DCFR) in 2008 and which have been followed in subsequent European Communications and Proposals. This discipline looks at questions related to the convergence of laws of contract, tort, company as well as other fields of law including the law of persons or the law of succession. The convergence of law can be described as the process of Europeanization which is being understood to mean the process whereby different concepts of national private law are brought to some varying degree closer together to achieve some form of common elements at European level. This can be formal through the European institutions or informal through other means. The process of Europeanization often rekindles the debate about the ius commune referring to the period of time mainly during the 17th and 18th century in which a true common law did exist in continental Europe. Of course the legal culture of today's EU Member States is not precisely as unified as it was at that time both linguistically and culturally. Latin has not been replaced by one lingua franca as the language of the law and Roman law is not the only major source of law. Nevertheless one can make comparisons for academic purposes.