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LAZARSKI UNIVERSITY OF WARSAW

COMPARATIVE LEGAL SYSTEMS COURSE

A Civil Code for Europe


- arguments against -

Student: Bogdan Costel Ursu


ID no: 348 E

I.

Introduction

Nowadays, in a very diverse and somewhat large European Union (28 member states,
over 500 million inhabitants that speak 24 different languages), its leaders and institutions aspire
for a deeper and deeper harmonisation and even unification of the legislations of the member
states. As directives and regulations are being drafted and enforced on a daily basis, there is still
found a stronger need to bring into line the different national laws of the states, especially private
law provisions, as they directly affect the economic, commercial and trade relations between
individuals, companies and even states. One of the objectives has been, since the beginning of
the 90s to ellaborate a European Civil Code, a set of rules that could unify private law at a
European level.
Until now, there is no certainty if such an act will be drafted and approved in the future,
so that it could enter into force. Also, many debates have been launched on wether a European
Civil Code is feasible and would bring any improvements or not. There are many arguments in
favor of the enactment of such an act: reduction of transaction costs, legal predictibility and
security, facilitation of transnational trade and so on. However, there should be taken into
consideration some current realities that characterise our nowadays European Union: it gathers a
wide variety of countries, cultures and historical experiences, the two major opposing legal
cultures existent in Europe (common law system and civil/continental/Roman law system),
language barriers, the relative instability and disparity of the European Union itself and the very
complicated decision-making process. Moreover, the relations that are intended to be regulated
by the European Civil Code are becoming more and more complex and hard to be foreseen and
predicted in their entirety and eventual regulation errors would take a very long time to be
corrected.

II.

First Barrier the European Diversity

There is a very tight connection and relation between culture, national history, language
and law and the first three have a strong influence on the latter. Hence, there are different legal
frameworks, mentalities and ways of perceiving law at the European level. A European Civil
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Code would reduce this diversity, not to mention that it could just erase hundreds of years of
legal traditions, for each national legal system has its own approach on application of law,
interpretation of law, enactment of law etc. Each country, throught its history, has ellaborated
laws that were suited for their needs and according to their traditions, customs, way of thinking
etc. Even in a given state, regulations on the same matter may differ from one region to another,
especially when talking about federal states like Germany.
The ECC would virtually replace the civil codes of the member states and that could
affect their entire legal system, as all legislation in a country is connected and usually the civil
legislation comes as a common basis for the other types of laws. This could lead to incoherence
and it will eventually force the member states to radically change their legal systems from top to
bottom.
Another issue is that in Europe one can find two very different legal cultures (even three):
the common law system and the civil/continental system. The approaches and ways of perceiving
law and the way it should be applied is totally different, making it almost impossible to find a
common ground between the two. However, it is true that there have been accepted and enacted
some written laws in the common law countries and also solutions based on case law accepted in
the civil law countries. But a civil code is the core and one of the fundamental structures of the
law system of a country. Moreover, proposing a set of written rules in a codified manner is just
telling that the civil law system is superior and it should prevail, which is not quite true and
somewhat arbitrary.
It would be also very difficult to find a way to foresee and predict all the legal relations
between more than 500 million people, that come from different countries, speak different
languages and have different ways of living their lives. Because that is the main function of a
civil code to regulate private relations between natural persons, legal entities, from daily
activities to very important transactions.
Also, from the linguistic point of view it will be very difficult to find the proper wording
for the provisions of such an act. Nowadays translations of the EUs laws are not very fortunate
and many problems have appeared from the fact that the legal translation had a different meaning
in a certain language than the original version of the law and sometimes conferred a different
understanding of the provisions.
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III.

Second Barrier Complicated Decision-Making Process in the EU


and the Relative Instability and Disparity of the Union

It is widely known that the decision-making process in the EU is very complicated and
prolonged by the many negotiations conducted between representatives of member states,
compromises between the EUs institutions involved in the process and political interests.
First of all, this idea of drafting a European Civil Code should be accepted by all member
states. Reaching a compromise on this aspect would be almost impossible, taking into
consideration the facts stated above when talking about diversity. And it will be inefficient just to
ellaborate some brief code provisions, at a general level. These could not capture the complexity
of civil relations and the many technical and minor points which are present in the private law
disputes. Within the member states, these have been settled in a very long lasting process and
there is still space for improvements. A new code will lead to a huge flow of trials, litigation,
disruptions and disputes between member states, EU institutions and the European Court of
Justice, national courts and national constitutional courts would face a massive wave of cases.
And the eventual errors that would appear in the act would take many years to be
corrected, as the agreement from many entities would be required, many individuals, companies
and states being deeply affected if such a mistake would occur.
The nowadays relative instability of the EU (Great Britains intention to withdraw from
the union, economic disparities between the countries and the lack of a common voice when it
comes to foreign policy and defense) would transform into a serious threat to the sole existence
of the European structure itself. Some countries will try to manifest their influence in order to
protect their interests, some will simply refuse the idea and some will maybe accept but be
seriously affected by the decision afterwards.

IV.

Conclusion
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In conclusion, I believe that the event of a European Civil Code in the near or far future is
not feasible, will not be effective in any way and it would just come to destroy the main aspect
that makes the European Union original and interesting: the unity in diversity. I believe that there
is a process of natural and slow harmonisation between the member states legislation, as it is
influenced by the deep connections and relations between the countries and this process should
not be speeded up or forced because it could lead to a strong regress in the EU integration
tendency and it will also strongly destabilize the structure.