Politics and contract law in Europe, Part 1

Contract law can’t help but embody certain political choices.  Thus, argues Martin Hesselink in a new paper, The Politics of a European Civil Code, the democratic process needs to reassert itself in the project to develop a European civil code of contracts.  The paper is forthcoming in the European Law Journal.

Hesselink, of the Amsterdam Institute of Private Law, says that the attempt to shield the process from politics by referring the project over to “academic experts” is inappropriate, because it works to disenfranchise many of the “stakeholders” who have significant interests in the process.

ABSTRACT

Last year the European Commission published its “Action Plan” on European contract law. That plan forms an important step towards a European Civil Code. In its Plan, the Commission tries to depoliticise the codification process by asking a group of academic experts to prepare what it calls a ‘common frame of reference’. This paper argues that drafting a European Civil Code involves making many choices that are essentially political. It further argues that the technocratic approach which the Commission has adopted in the Action Plan effectively excludes most stakeholders from having their say during the stage when the real choices are made. Therefore, before the drafting of the CFR/ECC starts, the Commission should submit a list of policy questions regarding the main issues of European private law to the European Parliament and the other stakeholders. Such an alternative procedure would repoliticise the process. It would increase the democratic basis for a European Civil Code and thus its legitimacy.