The European Draft Common Frame of Reference - A Source of Comparative Law: A New Option for Choosing the Applicable Law - Or a Template for a European Civil Code?

Abstract

In early 2008, two coordinated networks of European researchers on private law presented the final draft for a common frame of reference (DCFR) containing principles, definitions and model rules on European Private law. The DCFR builds on decades of comparative legal study as embodied in the Principles of European Contract Law; but goes further by including, inter alia, unjust enrichment and torts. In this paper I assess the various objectives of the DCFR and sketch the impact their realisation might have on private law in Europe and possibly beyond: (1) As the final result of a comprehensive research project commissioned by the EU Commission, the DCFR aims to serve as a model for a political common frame of reference (CFR) which the EU Commission might utilise for further harmonisation activities in the field of private law, possibly even leading to a European Civil Code. What does this imply for the diversity of legal systems in Europe; in particular the contrasting approaches in civil- and common law traditions? (2) In light of the current revision of European rules on the law applicable to contractual obligations, a political CFR or even the current academic DCFR might function as an 'optional instrument' which parties choose as the applicable law governing their (contractual) obligations. Does this really serve a viable alternative addressing those who fear for overarching uniformity? (3) Finally, the DCFR as an academic text operates as a source of comparative law. Does it epitomize a common European legacy in private law?

Keywords: Draft Common Frame of Reference, DCFR, European Civil Code, European Contract Law