Constructing a European Civil Code: Quis custodiet ipsos custodes?

Abstract

Quis custodiet ipsos custodes? - Who will guard us from our guardians? - expresses one of the central dilemmas of decision-making: the tendency of the organs of the state, as much as individuals, to pursue agendas outside their competence; in an opportune environment the executive may subvert the checks and balances designed to control its activities. This paper argues that a similar process is observable in the EU - where governance, despite the assurances provided by deliberative supranationalism, is becoming ever more in-formal, ad hoc and disorganised - and is exemplified in the Commission’s strategy to improve the coherence of EC law where, notwithstanding the ostensible rejection of a European civil code, a broad exercise in codification is being incrementally promoted. In its Progress Report on European Contract Law of 23 September 2005, the Commission marked a new stage in the elaboration of a ‘Common Frame of Reference’ and an ‘Optional Instrument’; instruments to be seen as the elements of an embryonic European Civil Code. Purportedly, the Commission aims to selectively consolidate rather than comprehensively codify provisions of EC law as they shape national contract and private law; with the task of elaborating ‘non-Code’ measures allotted, paradoxically, to a consortium led by the Study Group on a European Civil Code. The Commission affirms in the 2005 Progress Report the need for a more horizontal approach to EC legislation, specifically in the field of consumer protection. Caught at an intersection of paradoxical goals, agendas and outcomes, it is argued that the codification approach will ultimately fail. The paper concludes by charting the contours of the codification landscape; outlining the major re-search themes, specifically addressing the governance implications and the need for more work to be done analysing the practical effects of codification on the law in action.