European Private Law

Full course description

This course aims to make its participants familiar with the area of European Private Law. At one time, this aim would have been perceived as far too difficult to attain: until 1990 or so, there was no such thing as ‘the European Law of Contract’. In more recent times, however, scholarly efforts to build such a uniform contract law on the basis of comparative legal research have coincided inter alia with the issuing of important European Directives in this field and the drafting of principles of contract law based on comparative research. These principles include the Principles of European Contract Law (PECL) and the Principles of European Law (PEL), dealing with topics such as sales and services contracts. These initiatives have not in and of themselves led to a great deal of uniform contract law for the European Union, but what has emerged is the idea (shared by many scholars and practitioners) that it is possible to come up with such a uniform law in the future. In any event, this has given rise to the view that European Contract Law can be taught at universities by uncovering the similarities and differences between the various European legal systems and by pointing at the unifying instruments that already exist. In January 2008, a huge effort of scholarly work led to the publication of a Draft Common Frame of Reference of European Private Law (DCFR), based on the PECL and further comparative research. In 2009 a renewed and updated version of the DCFR was released and presented to the European Commission in the form of 6 volumes of over 6000 pages. An expert group then endeavoured to turn the (academic) DCFR into a (political) CFR, which could serve as a so-called optional instrument in the field of contract law. The result of this endeavour was a feasibility study that formed the basis for the European Commission’s proposal on a Common European Sales Law (CESL), which was put forward in October 2011.

The CESL has been the subject of heavy debate not only among academics but also among politicians and Member States. The European Parliament was relatively happy with the Commission’s proposal, but it soon became clear that the proposal would not be adopted by the Council. Hence, when the Juncker Commission took office in late 2014 it revoked the CESL proposal. Instead, using a new thematic approach, the European Commission launched proposals for further directives relating to contracts for the sale of goods as well as the supply of digital content and digital services, which have since been adopted.

By far the largest body of European Contract Law deals with consumers. This is mostly due to the nature of European legislation. After all, the European legislature must show aim and reason before it can issue harmonising measures. It is sometimes held that because of this there is legislation at different levels, dealing differently with similar subject matter. The European Commission is organised in several Directorates-General (DGs) (perhaps best compared to the ministries of the Member States) that operate on a semi-autonomous basis. Of course there is coordination between the DGs, and there is some steering from the College of Commissioners (the full meeting of all Members of the European Commission), but – and this has been a major criticism in the past – this coordination has not always been successful. At least, part of the fragmentary character of European Contract Law at present can be attributed to poor coordination.

Because of this competence-oriented approach, consumer law takes a central place in the field of European contract law. In European Union speak, this part of the law deals with contracts between businesses and consumers, so-called ‘B2C’ transactions. In addition to this, there are also European initiatives taken that deal more with commercial relationships, so-called ‘B2B’ (business to business) transactions, and talk of a European Business Code has also surfaced.

In short, the European Union has not been sitting still in the past years in the field of private law. The CESL provided us a glance at what the European Private Law of the future can look like, certainly combined with other legislative initiatives taken by the Commission, such as the Consumer Rights Directive of 2011, which replaced some of the contract law directives existing at the time, seeking more coherence, as well as a change in approach from minimum harmonisation to full (or maximum) harmonisation. At the same time, however, these proposals also show the limit of what the EU is politically able to achieve in this area. It is that future that is the central focus point of this course.

In this course you will, after two weeks of introduction, be part of an expert group working on a fictive proposal on a European Private law for the European Commission. You can have particular influence on the sub-topic you are working on for this course, both in drafting legislative provisions, as well as discussing and coordinating provisions drafted by others. The course is finalised in the form of a joint group research paper (including the draft legislative proposal itself) on the sub-topic in question, along with participation throughout the course.

Teaching methods

• Tutorials/Working Group Sessions
• Video lectures/Information Sessions
• PBL/peer-to-peer learning

Assessment methods

• JOINT RESEARCH PAPER (70%) AND PARTICIPATION (30%)