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Науково-практична Інтернет-конференція 20.04.2016 - Секція №3
The idea of the codification of the EU private law and creation of the European Civil Code (hereinafter – ECC) dates back to the 1980s. However, since then until nowadays the scholars, academics and politicians from different EU Member States cannot agree whether the Europe need such a document. Green Paper from the European Commission on Policy Options for Progress towards a European Contract Law for Consumers and Businesses, adopted in 2010, outlined the possibilities of strengthening the internal market by the development of the European Contract Law. Creation of the ECC was stated among the options, which caused huge public discussions on this topic. 
Talking about advantages of the adoption of the ECC, it first of all could solve many problems that arise from the differences in private law. Single market cannot function properly with 28 different laws in place. Unification of the laws into one document would have an enormous effect of the simplification of cross-border business. Moreover, both for traders and consumers one document is much more predictable and accessible, which leads to the greater extent of the legal certainty, easement of commerce and establishment of the EU-wide justice and fairness [9, p. 46]. Furthermore, the ECC would be the result of the common work of the greatest legal minds of 28 states, which would guarantee the highest level of the document. According to the professor David Schmid, the Code will improve the quality of the legislation in the majority of the EU Member States concerning not only fairness and proportionality, but also consistency and coverage [7, p. 270]. Moreover, adoption of ECC would be a one step forward to the creation of the common European identity [8, p. 23]. This document would influence lives of every single European citizen, bringing them closer than before. However, as the most traditional parts of private law – family and inheritance law – are most probably not going to be included into this Code, the countries can still keep their legal traditions and legal identities. 
Nevertheless, within the public consultations in a response to the Green Paper majority of the Member States stated obstacles to the adoption of the ECC. The most frequently quoted by the Member States obstacle to the emergence of the ECC is its contradiction to the principles of subsidiarity and proportionality, as enshrined in the article 5 of the TEU, according to which Union can act in the area of freedom, security and justice only if the proposed result cannot be sufficiently achieved by the Member States, but can be better achieved at the Union level. Consequently, the question arises: which way of regulation civil relations is more effective, by means of the national legislation or the uniform European code?
As a second major obstacle States indicate the lack of competence, or in other words, that the creation of the ECC has no basis in the primary law. Application of the Article 114 of TFEU as the legal basis for ECC seems questionable, according to which EU can harmonize the law of the Member States only in cases, when it is intended for the creation or functioning of the internal market. The latter is, however, questionable. No calculation or comparison of the transaction costs was held by EU institutions, while the benefits for the internal market are not well seen by the Member States [7, p. 274].  
Third objection is an absence of widely-accepted reason for the unification. Creation of a unified Code must be based on a clear and understandable reason, since it is a significant intervention into national law. UK states that adoption of a common code would have no effect on the functioning of the internal market. Moreover, it isn’t even required by the entrepreneurs themselves, who come into contact with international trade most frequently [4]. Organization “Business Europe does not consider unnatural harmonization or unification as a reasonable step [2]. The same idea was expressed by Finland, which considers the proposal for the common ECC completely unrealistic. A similar opinion is shared by Paris Chamber of Commerce, according to which the existing instruments are adequate and ECC would be highly impractical [5]. Austria states that is not the right time for such an extensive changes and points out the very high costs that would be associated with the adoption of the ECC [3]. 
One of the key assumptions for the adoption of the ECC is, among other things, the presence of the political will among the Member States. However, as Hungary sums up, currently such political will is lucking from the side of the Member States [6].
Fourthly, according to the UK comments, uniform rules for the interpretation of common standards should be created. Nevertheless, European Court of Justice isn't ready to the increase of its work-load, as it would cause disproportionately prolongation of court proceedings and would not ensure the legal certainty [4]. As the Association of German Banks points out, adoption of the ECC would create a need in the specialized EU court for civil matters. Common procedural rules would have to be created at the same time to ensure the same interpretation and application of the norms [1]. It would lead to the so called "spill-over" effect on the national legislation.
The last but not the least ground for discussions is differences between legal traditions, culture and society. In case of the adoption of the common Code, different legal traditions of each Member State would have to be taken into account; specifically, that UK, Ireland and Cyprus represent common law legal systems. Hungary goes even further, considering the whole proposal of the ECC in conflict with the article 3 of the TEU, since the EU would not respect the rich cultural diversity of individual states, which also include certain legal traditions, built on the national codes [6]. 
Particular impact of the ECC would depend on the extensiveness of its regulation. As its result, a significant part of legal barriers for cross border trade within the Union would vanish, leading to the better functioning of the internal market through the simplification of the rules, easement of commerce and the EU-wide justice and fairness. 
Idea of the creation of the ECC is an evidence of the development of EU law and integration. Founding treaties always contained provisions for the harmonization of the legislation in the area of private law, that were actively used by the European Commission and European Parliament, while States expressed concerns about the loss of the powers and controls. Thus, a broad consensus between all Member States is needed to start the process of the adoption of the ECC and to overcome the lack of competence of the EU to adopt this measure. Nevertheless, creation of an official and binding EU tool should be processed with extreme caution. Thus, the European Civil Code is currently rather hypothetical option according to the present competences of the EU and political will of the Member States.
 
Reference list:
1. Banken Verband. Official response to COM (2010) 348 final [Online] / Banken Verband. – 2010. – http://ec.europa.eu/justice/news/consulting_public/0052/47_de.pdf.
2. Business Europe. Consultation on policy options for progress towards a European contract law for consumers and businesses. [Online] / Business Europe. – 2011. – http://ec.europa.eu/justice/news/consulting_public/0052/contributions/51_en.pdf.
3. COM (2010) 348 final. Opinion of the Republic of Austria [Online] – 2011. – http://ec.europa.eu/justice/news/consulting_public/0052/contributions/273_en.pdf.
4. UK government response COM (2010) 348 final. [Online] – 2010. – http://ec.europa.eu/justice/news/consulting_public/0052/contributions/310_en.pdf.
5. Position papers of the CCIP. Towards European Contract Law? [Online]. – 2011. – http://ec.europa.eu/justice/news/consulting_public/0052/contributions/64_en.pdf.
6. Replies of the Hungarian government to COM (2010)348 final. [Online] – 2011. – http://ec.europa.eu/justice/news/consulting_public/0052/contributions/190_en.pdf.
7. Schmid D. (Do) We need a European Civil Code (?) / David SCHMID // Annual Survey of International & Comparative Law. – 2012. – № 18/1 – P. 263-275.
8. Smits J. European Private Law: A plea for a spontaneous legal order / J.M. Smits. // Maastricht Faculty of Law Working Paper. – 2006. – № 3. – P. 19-25.
9. Zenthöfer J. Brauchen wir ein europäisches Zivilgesetzbuch? / J. Zenthöfer // Humboldt Forum Recht. – 1999. – №1. – P. 40-53. {jcomments on}
 
 

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