The Legal Basis for an Optional Instrument on European Contract Law

Abstract

Short study for the European Parliament on the different options for a future instrument on a Common Frame of Reference (CFR) in EU contract law, in particular the legal form and the legal basis for any future optional instrument. The general conclusion is that, considering the relevant EC Treaty provisions and ECJ case law concerning legal bases, the description of an optional instrument by the European Commission in its Action Plan and its follow-up communications on European contract law, and the private law measures already in place, Article 308 EC seems to be the most likely provision to provide a legal base for enacting one or more optional instruments concerning European contract law. Art 95 EC seems to be excluded since an optional instrument would not be an instrument for the harmonisation of the laws of the Member States. From the perspective of a legal basis it would not make a difference whether the optional instruments would be applicable to B2B or B2C contracts or both, nor whether they would apply only to cross-border contracts or also to purely internal contracts. However, even Article 308 EC cannot serve as a legal basis for enacting the entire CFR; any optional instrument will have to be limited to rules on the subjects that are particularly relevant to the internal market.

Keywords: european contract law, optional instrument, legal basis