European Union

From the European civil code to revision of the Community acquis: Just how legitimate is Europe?

In 2010 a body of rules on contract law in the European Union will have to be adopted", that body of rules being but the vanguard of a future European Civil Code. That was the message delivered up to French jurists by Christian von Bar, just eight years ago now, from the Grand’chambre of the Cour de cassation, by way of notice to them that they should prepare to store away the French People’s Code civil along with any other outdated theatrical props. In voicing that opinion, the speaker was for that matter merely responding to the call of the Community authorities and of the European Parliament in particular.What had all the appearance of a diktat encountered a wave of protest in France. It was pointed out both that "a Civil Code is not a community instrument" and that the Community authorities have no jurisdiction to infringe on codes that are an important piece of each country’s history, culture and identity. We shall not go back over the familiar terms of this debate here. Let it be recalled simply that the resistance was strong enough for the Community authorities to beat a retreat, including on the contract law front. After examining its conscience, performing their "auto-critique" as Bénédicte Fauvarque-Cosson put it, the Commission marked its preference for drawing up a common reference framework, a sort of ‘tool kit’ containing in its drawers the definition of the key concepts and the statement of the fundamental principles of contract law. Thus, faced with the scepticism and even the hostility prompted by their initiatives, the Community authorities seemed to take the point that they had no competence, no legitimacy even, to intervene in what is the core of each legal system, its civil law.

European Legal Integration and Legitimacy

For it to be legitimate, this study must be carefully circumscribed. The problem it purports to address is not that of the legitimacy of the structures or organs of the European Union but that of the integration of EU law into the legal systems of its Member States. By what title can EU law impose its norms on national legal systems, and so much so that the conditions in which rule-making is organized within those orders are affected to the point of turmoil? On what conditions can EU law be integrated? What consequences does such normative integration hold for the way in which relations among legal systems are described? Our discussion addresses not so much the actual dynamics of legal integration but rather the discourses of justification it produces and on which it rests.