European Competence and a European Civil Code, a Common Frame of Reference or an Optional Instrument

19 Pages Posted: 26 Jan 2010

See all articles by Jacobien W. Rutgers

Jacobien W. Rutgers

VU University Amsterdam - Faculty of Law

Date Written: January 26, 2010

Abstract

Only insofar as the EC Treaty provides the competence to adopt a European Civil Code, it can be done. Insofar as there is no competence, it will be rather hard to imagine a European Civil Code in the form of any binding instrument. In this paper, it is submitted that the EC Treaty at present does not include a competence to adopt a European Civil Code. A distinction can be made between a European Civil Code that replaces the national legal systems and a European Civil Code that can be selected to govern a legal relation in addition to a national legal system. With respect to the former, Article 95 EC is discussed. This provision does not seem to include a power to adopt an all-embracing European Civil Code. As regards the latter, Article 308 EC is discussed. It seems unlikely that Article 308 EC provides a power to adopt an all-embracing European Civil Code as an optional instrument, since it seems questionable that it is necessary to attain the objectives of the internal market and does not go beyond the general framework of the EC.

Keywords: European private law, contract law, European civil code, European competence

Suggested Citation

Rutgers, Jacobien W., European Competence and a European Civil Code, a Common Frame of Reference or an Optional Instrument (January 26, 2010). Available at SSRN: https://ssrn.com/abstract=1542533 or http://dx.doi.org/10.2139/ssrn.1542533

Jacobien W. Rutgers (Contact Author)

VU University Amsterdam - Faculty of Law ( email )

De Boelelaan 1105
1081 HV Amsterdam
Netherlands

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