Autonomy of Common European Sales Law in Lithuania
Sį dokumentą lietuvių kalba galima rasti adresu: http://ssrn.com/abstract=2243074 Private law is the area of law in which the resistance to unification in Europe is probably the strongest. Private law codification initiative, which began in 1989, after more than twenty years was recently reduced to optional non binding common sales law draft, which is gradually making its way through the EU institutions’ legislative process. Choice of EU regulation as a form indicates that the willingness to reach objective results is strong enough, but the reasoning in support of this project faces equally strong argument against it. Lithuanian experience expands this discussion in several important respects. Rome I Regulation Article 6.2. deadlock solution is specifically beneficial for smaller countries, where market participants have less bargaining power. In addition, an optional supplementary regulatory framework that the parties could choose, would allow testing existing legal systems by competition. Lithuania's recent reform experience suggests that the draft regulation provides for a smooth change in Europe. Multilingualism, some of the Common European Sales Law solutions, radically different from the Lithuanian national legal provisions will certainly require revision of the existing concepts, but that is not a reason not to try to improve the EU's common private law.
Against a European Civil Code
I propose to heed Nietzsche's advice: 'Handle deep problems like cold baths: quickly into them and quickly out of them.'2 The 'deep problem' I wish to address here concerns European legal integration. Specifically, I want to consider a propoundment which is apparently meeting with increasing favour in various political, professional and academic circles: that of a European Civil Code.3 The paradox is noteworthy: while nineteenth-century civil codes ruptured aspects of the commonality that had previously linked continental legal cultures, a civil code, it is now thought by many, will cement a legal unity across European legal cultures. The question is: should the idea of a European Civil Code be supported? My answer is, emphatically: no, it should not. I have divided my argument into three parts.
The Draft Common Frame of Reference, Methodological Nationalism and the Way Forward
The Draft Common Frame of Reference for a European Private Law (DCFR) suffers from so-called methodological nationalism: the DCFR adopts a view of law and lawmaking developed for national jurisdictions and in doing so, it takes too little into account that what is best at the national level may not be optimal at the European one. The argument is made by reference to three different features of the DCFR: the idea of comprehensive codification, the choice of the relevant rules and the way in which law is represented. It is then argued that the DCFR should be presented in a differentiated way, dependent on whether its function is to create binding rules, offer a source of inspiration for legal scholarship and teaching or to take the first step towards the creation of an optional contract code.