RICERCA ITALIANA     

EUROPEAN PRIVATE LAW BETWEEN INTERNAL MARKET AND EUROPEAN CITIZENSHIP

Università degli Studi Roma Tre

Abstract

Rules and principles of European private law raised progressively in the European integration scenario during the last decades. Such rules and principles have a transverse importance in respect of the single EC Member States.
European private law cannot be easily defined and several definitions of such expression have been offered. In general, European private law fuels from EC and national sources and also from commercial customs and legal Scholars essays and theories (in a reconnaissance and in a constructive prospective at the same time). It consists of rules and principles deemed common to each EC Member State legal system (or generally adopted in such systems). Such rules and principles link EC law and national legal systems together, as well as single national legal systems with each other (through EC law).
In such context, it seems correct to structure European private law as a legal system (even if still incomplete) which operates on various levels of effectiveness (both national and supra-national) and in which national rules and principles regarding the relations between private citizens are conformed by the European law and partnered by “European Law” rules and principles which are common to each legal system.
These rules and princicompany law rightples can be found in various fields, such as the consumers rights, the family life protection, the data protection, the intervention of EC legislator with reference to family relationships and successions, the intervention of the EC Court of Justice concerning the protection of fundamental human rights, the harmonization of company, bank and insurance law as well as antitrust and financial law, civil liability and real securities.
The European private law (borne in EC law) also grows thanks to the activity carried out in national Parliaments and the contribution of the national juridical cultures, as well as by the interpretation offered by national case law and legal Scholars, having recourse to "opening of the sources" techniques already known to the European common law of the past centuries (in which the comparison, with its models and analysis, plays a fundamental rule).
In any case, the European private law needs to be altogether unitary; without such unitary, it cannot be useful in order to favour the European integration process. Therefore, it is necessary to fix a point of reference, in order to ensure stability and coherence to the development of the European private law.
This search is aimed to verify if – in spite of the circumstance that European private law has been developing fragmentarily, without being founded on common political values – the European Internal Market (which could be deemed as a synonym of common space and common law) and the four fundamental liberties (free circulation of goods, people, services and capitals) can be validly considered as a point of reference in order to place the development of the European private law, as well as “European Citizenship”, which may be seen instead as subjective condition that completes and enriches the rights of the private citizens, together with national identity, in the perspective of a European private law system.
Moreover, this search will have to verify if the “European Citizenship”, identified as a point of reference for European private law, might be structured as the pivot of a multi-level legal system based on the “principle of proximity” (under which all decisions regarding rules should be taken as near the citizens as possible) and on the “principle of subsidiarity” (under which the normative competences are divided into various government levels, also considering their adequacy to the respective aims).
In consideration of such conception of the “European Citizenship”, the above mentioned multi-level legal system could be based on fundamental trans-national values and rights, which might reintroduce the human person as the centre of the process of elaboration and application of the rules of law. <<<

Principal Investigator

Raffaele Torino Università degli Studi ROMA TRE

Research Objectives

The aim of this search is verify if the point of reference of the European private law’s development – currently developed in a impulsive fragmented way without clear and accepted basic politics values (from a Community and a national perspective) - could be not only the European Common Market, intended as synonym of common space and common law and in the contest of the exercise of the four fundamental freedoms (free circulation of goods, people, services and capitals), but also (and how much) the European citizenship. In this respect the European citizenship is intended as a condition of subjectivity, that, connected with the National identity and within a space of freedom, safety and justice, completes and enrich the individual's right, bringing them to a dimension of rules and principles of a European private law.
It will be examined if the fundamental values of the European citizenship (dignity, freedom, equality, solidarity and justice) will be able to influence and in which ways with the historic aim to realise the economic integration between the Member States.
It will be also examined whether the European citizenship as a point of reference of the European private law can be considered as a matching point between the multiple law sources (local, national, European) so to become a turning point in the multi – level law system based on the "principle of proximity" (under which the decisions implying rules ought to be taken as near as possible to the citizens) and "the principle of subsidiarity" (under which matters the normative competences are distributed through the different authorities’ levels, considering their adequacy to the respective aims).
Through the interpretation key of the European citizenship the said multi – level law system will be based on fundamental values and rights spread at a trans-national level which affirm the central position of the person in drafting and in the application of the rules. <<<

First Results

The main results of this research are:
a) the organization of an international conference concerning issues of European Private Law arising from the values of European Citizenship and the possibility for European Citizenship to become a fountain guide for consolidation of Private Law throughout Europe. The results of the meeting should be published;
b) the publication of all the results obtained by the group of researchers relating to the option to put the European citizenship as a key for interpreting the multi – level law system that is being constructed among the law systems of the EU member States.
These results should supply an important contribution for further studies and considerations. The results should also constitute an incentive for further debates with regard to a process of constitutionalisation of the developments of European Private Law, inspired by such values as dignity, freedom, equality, solidarity and justice.
The outcome of this research could provide relevant contribution to future developments of European Private Law, making the European Institutions more aware of values such as dignity, freedom, equality, solidarity, justice and therefore take them into consideration while drafting laws of EPL. Also, said values should be applied by judges and scholars during their interpretation of the laws in effect. <<<

Timescale

12 months

National and international background

The initiatives carried out and still in progress within the European academic culture, the legal professions and the EC institutions and concerning the elaboration, reconstruction and analysis of the European Private Law are copious.
In the field of Contract law, especially with reference to the customers, in addition to the several acts enacted by EC Institutions (particularly in order to protect the customers), we have the EC Commission Communication on the European Contract Law dated 2001, the Action Plan of the EC Commission named "A More Coherent European Contract Law" dated 2003, the Resolution of the EC Council named "A More Coherent European Contract Law" dated 2003, the Communication of the EC Commission named “European Contract Law and review of the acquis: prospective for the future” dated 2004, the launch, during 2004, of the Joint Network on European private Law – Network of Excellence, which has been given the task to deliver to the EC Commission the “Common Principles of European Contract Law” (“CoPECL”), that will constitute the Common Frame of Reference (“CFR”), designed to be an instrument to improve the coherence and the rigour of the EC legislation, the creation, during 2004, of a net of representatives of the costumers organizations, the industry, the entrepreneurship and the legal professions (“CFR-net”), the Resolution of the EC Parliament on the “European Contract Law and review of the acquis: prospective for the future" dated 2006.
Amongst the most relevant initiatives arising from the Legal Scholars establishment, we have:
(a) the Principles of European Contract Law (“PECL”), developed by the Commission of European Contract Law (also known as Lando Commission). From 1982 the Lando Commission aims at finding common principles of Contract Law, i.e. principles and rules which are the expression of the more commonly adopted solutions at a Community level. So far three parts of the PECL have been published: Part I, published in 1995, deals with the execution and the breach of contract and with the remedies in case of breach; Part II, published in 1999, deals with the conclusion and validity of the contract, with the interpretation of the agreements and with the agency and its effects; Part III, published in 2003, deals with joint and severally liability, assignment of the receivables and of the contract, compensation, lapse of rights, conditions and interests. The PECL have different aims: to be a support for the Community institutions in drafting the legislation, as well as to judges, arbiters and legal counsel in the application of such legislation; to be used by the parties as governing law of the contract (above all in the trans-national transactions); to be a model for a possible harmonisation of contract law.
(b) The Code Européen des Contrats, drafted by the Academy of European Private Law’s Jurists. This group from 1992 aimed at developing not principles (deemed too vague and indeterminate) but precise rules, deeply followed by the Roman tradition, despite open to the suggestions coming from the Common Law. So far two books of the Code Européen des Contrats have been drafted: the First Book (on the general part of the contract: preliminary provisions, conclusion, content, form, interpretation, effects, execution, breach and assignment of the contract, assignment of the relationships deriving from the contract, termination of the contract and of the relationships deriving from the contract and other pathologies of the contract) and the Second Book (on the types of contract).
(c) The exchange of knowledge and information amongst the EC countries jurists realized in the context of the Society of European Contract Law (SECOLA), operative since 2001. This association does not aim to elaborate a project of a European code or principles, but to create a place and an opportunity for trans-national debate and thoughts, without dogmatism, open not only to jurists but also to sociologists, economists and experts in politic affair. So far many conferences have been organised by SECOLA on European private law themes and several in-depth studies have been published. The association has also created a journal (European Review of Contract Law) which contains essays and debates on European private law themes.
(d) The Manifesto published by the study group “Social Justice in European Contract Law”; and the debate regarding the necessity to elaborate a common contract law which ensure social justice, with the aim of protecting the weak party of the agreement (employee, small undertaking, lessee and any other person with a weak contracting power). The study group is aimed at promoting the individuation of common values which may represent the framework in the elaboration of the fundamental principles of the European contract law and at analysing the Community techniques to legislate under a legality perspective.
(e) The activities carried out by the “Acquis Group”, with the patronage of the EC Commission; such project aims at soliciting a more efficient quality in the Community legislation, providing point of reference for the future rules; formulating inter alia the “Principles of European Private Law already existent” (“Acquis Principles”) addressed at simplifying the national legislation implementing the Community law in the national systems; presenting to the European Commission the "genuine" content of the European contract law.
(f) The Principles of European Tort law, elaborated by the European Group of Tort Law (within the European Centre of Tort and Insurance Law) and aimed at representing a possible basis for a future codification of the European law in this filed. Moreover, the Principles of European Tort law are the results of an academic debate which is being carried out from 1999 between the members of the European Group of Tort Law and which has already produced several searches and publications of volumes on specific aspects of European private law in the tort responsibility field.
(g) The Principles of European family Law elaborated by the Commission of European Family Law, born in 2001 for the purpose of deepening the possible ways to harmonise the European family law. The first part of the Principles (“Principles of European Family Law Regarding Divorce and Maintenance between Former Spouses”) was published in 2004 while it is in course of publication the part of the Principles on the parents' responsibility. Aim of the Principle is to represent a framework for the national and European legislator.
(h) The search project named “The Common Core of European Private Law” was born in 1994 with the purpose of individuate he common basis of the European private law underlying common and different aspects – at an operational level – between the several law systems of the European Member States and published many studies on specific fields of the European private law.
(i) The project of an European Civil Code carried out by the Study Group directed by Von Bar since 1999. The project broadens the study regarding the European private law to all the areas related to property law, to the purpose of creating a "kind of basic property law for the States of the European Union on which those States may reach an agreement without losing, at once, their national law culture".
(j) The activities carried out by Project Group on a Restatement of European Insurance Contract Law, which aims at drafting a "Restatement" containing a minimal series of inviolable rules, able to govern uniformly the insurance contract.
The editorial project Ius Comune Casebooks for the Common Law of Europe, within which several casebooks have been published on the European common private law.
With reference to the enterprises regulation, the process of harmonization concerning the company law is in an advanced development stage (various directives have been enacted in this respect and a review of the acquis started; see the EC Commission Communication named "Modernization of Company Law and strengthening of the corporate governance in EU – a plane to move forwards" dated 2003).
The EC Treaty identifies three main profiles of intervention to realize, also trough the companies, the aim of integration, especially economic, between the EC State Members.
Having this aim on the background, the EC Institutions have been working, not only on the specific profile of the companies' free circulation amongst the EC State Members within the Internal Market (providing for, in the EC Treaty, the right of establishment principle and giving it effectiveness through the EC Court of Justice decisions), but also on certain fundamental profiles concerning the organization and the operation of the joint-stock companies (the harmonization of which has been held useful to facilitate the companies "movement" and also necessary as a consequence of the possibility of such "movement"), as the company contract and his incorporation, the company agency, the share capital, the internal organization and the corporate governance, the annual accounts, the companies merger and de-merger, the possibility to contend for the companies control, the company having a sole shareholder.
In addition, the EC tried to develop an autonomous company Law, ie a real "European Company Law", additional instrument to support the companies operation in Europe (European company, European cooperative company, GEIE).
On 10 July 2007 the EC Commission published a Communication on a "simplification of the contest in which the enterprises operate with reference to the fields of company law, accounting and audit". In such Communication the Commission established the necessity of re-examining the EC directives actually in force.
Only recently the European Institution have been Keen on foundamental rights and family law and there are also just a few scholar study concerning these topics (T. Trdimas The general Principles of EU Law, Oxford EC Law Library 2006; G. De Burca e B. de Witte Social rights in Europe Oxford Ec Law Library 2006; D. Curtin T. Heulens Institutional Dynamics of European Integration Kluwer 1998; G. de Brca The Drafting of EU Establishment and services in the EU, Oxford 2005; C. Barnard EC employment law 3° ed Oxford 2005; S.Peers e A. Ward The charter of fundamental rights and the future of Human rights Protection in Europe, Oxford 2004; J. Ziller La nouvell constitution europèenne, Paris, 2004).
The analysis of employment relationships appears limited to specific topics, not inspired by an interactive examination.
Among the initiatives carried out by international organisations, it should be remembered, but keeping in mind it does not only regard European Law, the Principles of International Commercial Agreements elaborated by UNIDROIT that can be chosen by the parties of an international agreement to regulate their contractual relationship. The Unidroit principles aim at constituting a body of rules that shall be used worldwide, regardless of the peculiar law traditions and economic conditions of the country in which they are applied. The first edition of the Unidroit Principles goes back to 1994 and the second to 2004.
There are also researches carried out by lawyers. To this extent we can remember:
a) the activities carried out with regard to civil liability by the European Association of Scholars, created in 1996 in Birmingham by a group of European Lawyer. This organisation’s goal is to provide a contribution to the consolidation of the national legal system of European member States regarding civil liability;
b) the project “Eurohypothec: a common mortgage for Europe”, developed upon an initiative from Unione Intarnationale du Notariat Latin. This project tends to find a common ground among the different national systems concerning real estate warranties, establishing the need and the possibility to have a common definition of mortgage throughout Europe. <<<