Franz Werro, Vers un Code européen des contrats?, in François Bellanger et al eds., in Le contrat dans tous ses états, Berne, 2004, p. 341-357 (in French) [The European Legal Code of Contract ?]
[Towards a european code of contracts?]
a) Background
The text at hand appeared in a publication at the occasion of the 125th anniversary of “la Semaine Judicaire”, an important law journal in the French speaking part of Switzerland.
In 1957 the principal objective of the founders of the European community was to establish a common market without internal barriers for all sectors of the economy. At that time nobody thought of an effective link between European law and national contract law. More and more, one realized that the existence of national private law could endanger the common market. The European process of harmonisation therefore has adopted a series of directives in private law. A more general intervention so far has been excluded. In the meantime, in connection with the issue of whether the European Union should adopt a European civil law, the idea of unification has appeared on the political scene and is seriously discussed by scientific writers.
Franz Werro has been a Professor of Private Law at the University of Fribourg, Switzerland since 1994. He is also a tenured professor at the Georgetown University Law Center, Washington DC since 2001. He presently is the only Swiss law professor who has chairs on both sides of the Atlantic. He has been a visiting professor at several European universities. He is the Dean of International Studies at the University of Fribourg and a co-director of the “Institut de droit European”. He teaches law of contracts, European private law, and comparative products liability, EU law, jurisprudence and comparative private law at Georgetown Law School. He is a member of the board of editors of various law journals and publishes frequently. He is one of the few Swiss lawyers and law professors, who have taken their teaching and research activities “global” and who actively participate in the scientific discourse with and within the European Union beyond Swiss borders.
b) Summary
The text at hand analyses the effects of existing private EU law on Swiss private law of contracts. The text further analyses whether there is an alternative to unification by means of directives going on to describe the directives and their effects. It further analyses some critical court cases of the European Court of Justice and highlights the effects of this jurisprudence on the Swiss law of contracts. In assessing these developments, Werro points to the practical difficulties and insecurities raised by means of harmonisation through directives despite the fact that the developments are highly interesting from an academic point of view. Werro argues that the use of directives needs to be revisited. A further unification is argued with reference to the history of the coming into existence of the Swiss Code of Obligation and the Uniform Commercial Code in the United States.
In its second part, the text deals with alternatives to the unification of contract law by means of directives. Based upon scientific and political doubts, it has become evident that the functioning of the common market depends not only on economic facts but also on a unified law of contracts. The position has not been shared by the European Court of Justice. The text then analyses the legal competences of the European organs to legislate in matters of private law and describes the actual plan of the Commission of the 12th February 2003. Nobody doubts that there is a link between common market and private law. The question is to know how intense this link is. Even the codifications which came into existence in federal states such as the United States and Switzerland after the establishment of a common market in the nineteenth and twentieth centuries does not give a final proof of this link. Werro’s text raises the complex issue regarding the further role of national law in view of a more far-reaching unification of the law of contracts. Switzerland will, for instance, lose its flexible and “neutral” law in international commerce.