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The Private Law Systems in the Eu: Discrimination on Grounds of Nationality and the Need for a European Civil Code

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The Private Law Systems in the Eu: Discrimination on Grounds of Nationality and the Need for a European Civil Code EUROPEAN PARLIAMENT __________________ __________________ Directorate General for Research WORKING PAPER THE PRIVATE LAW SYSTEMS IN THE EU: DISCRIMINATION ON GROUNDS OF NATIONALITY AND THE NEED FOR A EUROPEAN CIVIL CODE Legal Affairs Series JURI 103 EN 2 Systems of private law in the EU – Discrimination – European Civil Code __________________________________________________________________________________________________________________ This document is available in the following languages: DE (original) EN The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy. Publisher: European Parliament L-2929 Luxembourg Authors: Christian von Bar (head of team), Maurits Barendrecht, Jürgen Basedow, Ulrich Drobnig, Walter van Gerven, Ewoud Hondius, Konstantinos Kerameus, Stelios Koussoulis, Ole Lando, Marco Loos and Winfried Tilmann in consultation with the Study Group on a European Civil Code This study was commissioned at the request of the Committee on Legal Affairs and the Internal Market of the European Parliament. Editor: Klaus H. OFFERMANN Directorate General for Research Division for Social, Legal and Cultural Affairs Tel.: (00352) 4300-23709 Fax.: (00353) 4300-27723 E-mail: [email protected] Manuscript completed in June 1999. PE 168.511 EUROPEAN PARLIAMENT __________________ __________________ Directorate General for Research WORKING PAPER THE PRIVATE LAW SYSTEMS IN THE EU: DISCRIMINATION ON GROUNDS OF NATIONALITY AND THE NEED FOR A EUROPEAN CIVIL CODE Comparative study of the systems of private law of the EU Member States with regard to discrimination on grounds of nationality and on the scope and need for the creation of a European Civil Code Legal Affairs Series JURI - 103 EN 06-2000 Systems of private law in the EU – Discrimination – European Civil Code iii _______________________________________________________________________________________________________________ Preface This report, commissioned by the Directorate-General for Research of the European Parliament, examines, on the basis of a comparative study of legal provisions, the scope and need for the creation of a European Civil Code and the competence of the European Union to create such a code. At the same time, it investigates any forms of discrimination on grounds of nationality that may still be permissible under the private law and private procedural law of the EU Member States. The comparative inventory of legal provisions reviews the main differences between the national systems of property and procedural law that are currently represented in the European Union, as well as their common features. Admittedly, in many respects this could only be a fairly crude survey. We were unable to follow up specific details for sheer lack of time and because of the limits on the scope of such a study. We also had to confine ourselves to property law. Work on a European Civil Code, if it is to have any chance of political acceptance, must begin in the economically related domains of private law; harmonisation of family law and the law of succession remains a cura posterior for the time being. Accordingly, the term 'property law' as used in this study excludes these branches of private law. It stands as a general term covering both the law relating to land and chattels and the law of obligations, to use a distinction that applies in some countries, particularly Germany. This also means that we do not use the term 'Civil Code' in this report in the same way as it is used in the civil-law countries of continental Europe. The fact is that we are not yet talking about a complete codification of all private law but rather about the creation of a European legal framework covering a limited range of subject matter; this framework must be designed with a view to seeking out the traditions and principles that are common to the various national systems of property law, developing them sensitively in cases where they need further development and ensuring that they, at least, are enshrined for the first time in European law. Even this is a formidable task; in chapter 3 we discuss why it should be undertaken and how it could be tackled. The report concludes with an analysis of the legislative powers of the EU. It is several years now since the European Parliament first called on scholars of private law to devote themselves to the general theme of this study.1 1 The first resolution to this effect dates from 26 May 1989 (for the wording, see for example Rabels Zeitschrift für ausländisches und internationales Privatrecht (RabelsZ), Vol. 56 [1992], p. 320, and Zeitschrift für europäisches Privatrecht (ZEuP), 1993, p. 613); the resolution was repeated and reaffirmed on 6 May 1994 (Europäische Zeitschrift für Wirtschaftsrecht (EuZW), 1994, p. 612; ZEuP, 1995, p. 669; Official Journal of the European Communities (OJ) C 158/400-401). PE 168.511 Systems of private law in the EU – Discrimination – European Civil Code v _______________________________________________________________________________________________________________ Table of contents Chapter I - Summary of the main differences between the various systems of property law and civil procedural law in the European Union and their common features Ole Lando, Copenhagen Salient features of European contract law ............................................................................ 3 I. Introduction............................................................................................................... 3 II. The binding effect of a party's promise..................................................................... 4 III. The claim to performance ......................................................................................... 6 IV. Legal remedies in the event of non-performance...................................................... 9 V. Release from liability in the event of a significant change of circumstances ......... 10 VI. The principle of good faith ..................................................................................... 12 VII. Unfair contractual conditions.................................................................................. 14 Maurits Barendrecht and Marco Loos, Tilburg The law governing service contracts................................................................................... 17 I. Introduction............................................................................................................. 17 II. Information requirements........................................................................................18 III. Criteria for the assessment of service quality ......................................................... 19 IV. Liability for the actions of third parties .................................................................. 20 V. Entitlements of third parties.................................................................................... 22 VI. Termination and adaptation of contracts for the performance of a continuing or recurrent obligation .......................................................................... 24 Jürgen Basedow, Hamburg The law governing insurance contracts............................................................................... 29 I. Introduction............................................................................................................. 29 II. Freedom to contract ................................................................................................ 30 III. Maximum term of contracts.................................................................................... 31 IV. Behavioural obligations of policyholders between conclusion of the contract and occurrence of the event ...................................................................... 34 Christian von Bar, Osnabrück Non-contractual obligations, especially the law of tort ...................................................... 41 I. The basic characteristics of non-contractual liability ............................................. 41 II. The place of the law of tort in the general structure of private law ........................ 45 III. Negotiorum gestio and unjustified enrichment....................................................... 48 PE 168.511 vi Systems of private law in the EU – Discrimination – European Civil Code __________________________________________________________________________________________________________________ IV. Strict liability.......................................................................................................... 52 V. Legal consequences................................................................................................ 54 Ulrich Drobnig, Hamburg The law governing credit security....................................................................................... 57 I. Introductory remarks............................................................................................... 57 II. Personal credit security........................................................................................... 57 III. Real security............................................................................................................ 69 Konstantinos Kerameus, Athens Harmonisation of the law of
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