
The Politics of a European Civil Code
Description
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the politics of the Action Plan process;
the notions of coherence, social values and national tradition;
extension of the European unification debate to property law;
a code for the ordinary working people;
cultural diversity;
the legal basis for a European Civil Code;
the constitutional process and the role of fundamental rights;
a European social model
With its broad scope and depth of insight, this deeply informed and far-seeing collection makes a powerful contribution to the debate. It should not be overlooked by any student, scholar, or practitioner concerned with the nature of private law in Europe.
These essays were originally written as papers presented at a conference held in Amsterdam in January 2005
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Content
- Cover
- Half Title Page
- Editorial Board
- Title Page
- Copyright Page
- Table of Contents
- Preface
- Chapter 1 A Technical 'CFR' or a Political Code?- An Introduction
- I. A TECHNICAL 'CFR' . . .
- II. . . . OR A POLITICAL CODE?
- III. THE POLITICAL STAKES
- IV. THE WAY FORWARD
- Chapter 2 Thoughts on Coherence, Social Values and National Tradition in Private Law
- I. COHERENCE
- II. SOCIAL VALUES
- III. NATIONAL TRADITION
- IV. CONCLUSION
- Chapter 3 Political Issues in Property Law and European Unification Projects
- I. EUROPEAN CONTRACT LAW AS A STARTING POINT
- A. FUNCTIONAL / TECHNICAL APPROACHES VERSUS POLITICAL IMPLICATIONS CRITIQUE IN CONTRACT LAW
- B. EXTENSION OF THE EUROPEAN UNIFICATION DEBATE TO PROPERTY LAW
- II. PROPERTY LAW AND EC LAW
- III. THE NATURE AND CHARACTERISTICS OF PROPERTY LAW
- A. CONSTITUTIONAL LAW AND PROPERTY LAW
- B. BASIC DIFFERENCES BETWEEN CONTRACT LAW AND PROPERTY LAW
- 1. Numerus Clausus, Specificity,Transparency
- 2. Public Law
- C. DIFFERENT PARTS OF PROPERTY LAW
- IV. EXAMPLES OF ALTERNATIVE RULES OF PROPERTY LAW
- A. TRANSFER BY MERE AGREEMENT OR BY A SPECIAL TRANSFER ACT
- B. GOOD FAITH ACQUISITION FROM THE NON-OWNER
- C. REGISTRATION SYSTEMS
- V. CONCLUSIONS
- Chapter 4 A Workers' Civil Code? Principles of European Contract Law Evolving in EU Social and Economic Policy
- I. THE IDEA OF A CIVIL CODE
- A. IRRETRIEVABLY BOURGEOIS
- B. PRIVATE LAW
- II. SOCIAL, ECONOMIC AND CULTURAL RIGHTS
- A. RIGHTS AS THE GROUNDING FOR WORKERS ASPIRATIONS
- B. THE CHARACTER OF SOCIAL RIGHTS
- III. SOCIAL RIGHTS IN THE CONSTRUCTION OF THE CIVIL CODE
- IV. CONCLUSION
- Chapter 5 Cultural Diversity and the Idea of a European Civil Code
- I. INTRODUCTION
- II. IS THE IDEA OF A EUROPEAN CIVIL CODE DESIRABLE OR POSSIBLE OR DOES THE PRESENCE OF CULTURAL DIVERSITY IN EUROPE OFFER ANOTHER SOLUTION?
- III. EXPLORING THE EXISTENCE OF CULTURAL DIVERSITY: AN OPEN AND SHUT CASE?
- A. THE CASE OF CHANGE OF CIRCUMSTANCES: NEGOTIATE!
- B. CO-OPERATE!
- IV. CONCLUSION
- Chapter 6 The Legitimacy of the Codification of Contract Law in View of the Allocation of Competences between the European Union and its Member States
- I. FEDERALISM AND CIVIL CODES: THE GERMAN CASE
- II. THE MISSING COMPETENCE OF THE EUROPEAN UNION IN DRAFTING A EUROPEAN CIVIL CODE
- A. THE CONCEPT OF LEGAL BASIS IN EU LAW
- B. APPROXIMATION OF MEMBER STATES' LAW AS A LEGAL BASIS FOR CODIFICATION
- C. SECTOR BASED LEGAL BASES
- III. A BASIS OF DEMOCRATIC LEGITIMACY FOR THE CODIFICATION OF CONTRACT LAW?
- A. THE 'HAGUE PROGRAMME' AS A FOUNDATION FOR THE HARMONIZATION OF CONTRACT LAW
- B. THE EUROPEAN PARLIAMENT RESOLUTION ON THE APPROXIMATION OF THE CIVIL AND COMMERCIAL LAW OF THE MEMBER STATES
- C. REVISITING THE ISSUE OF LEGAL BASIS AFTER THE EUROPEAN CONVENTION AND THE SIGNATURE OF THE CONSTITUTIONAL TREATY
- D. USING RESEARCH FOR THE CODIFICATION OF CONTRACT LAW
- IV. CONCLUSION: A TASK FOR THE COUNCIL OF EUROPE?
- Chapter 7 The Civil Code within the European 'Constitutional Process'
- Chapter 8 European Constitutionalism and Three Models of Social Europe
- I. MODEL 1: ECONOMIC FREEDOM AND SOCIAL NON-DISCRIMINATION: CONSTITUTIONALIZING PRIVATE AUTONOMY
- A. NEGATIVE INTEGRATION AND PRIVATE AUTONOMY
- B. THE LEGITIMACY OF THE CONSTITUTIONALIZATION OF NEGATIVE INTEGRATION: THE ROLE OF PRIVATE AUTONOMY
- C. THE EMERGENCE OF A EUROPEAN SOCIAL STATUS THROUGH NEGATIVE INTEGRATION
- II. MODEL 2: PROTECTING THE SOCIAL MODEL OF THE MEMBER STATES
- A. THE ROLE OF THE CHARTER: PROTECTING THE SOCIAL MODEL OF THE STATES
- III. MODEL 3: THE SOCIAL MODEL OF THE EUROPEAN UNION
- A. EUROPE'S CONSTITUTIONAL PROJECT AND SOCIAL EUROPE
- Chapter 9 The Politics of a European Civil Code
- I. INTRODUCTION
- II. THE POLITICAL STAKES IN THE EUROPEANIZATION OF PRIVATE LAW
- A. IDEOLOGY: LEFT VERSUS RIGHT
- 1. Introduction
- 2. Formation
- 3. Content and Effects
- 4. Non-performance and Remedies
- B. LEGAL CULTURE: NATIONAL AND EUROPEAN
- 1. Introduction
- 2. Formation
- 3. Content and Effects
- 4. Non-performance and Remedies
- C. POWER: LEVELS OF GOVERNANCE
- 1. Introduction
- 2. Vertical Levels: European, National, Regional
- 3. Horizontal Levels: Legislator, Courts, Scholars, Practitioners
- D. THE SYMBOLISM OF CODIFICATION: IS EUROPE UNITED OR DIVIDED
- III. THE ACTION PLAN PROCESS
- A. TOWARDS A EUROPEAN CIVIL CODE
- 1. A Short History of the Europeanization of Private Law before the Action Plan
- 2. The Communication
- 3. The Action Plan
- B. THE POLITICS OF THE ACTION PLAN PROCESS
- 1. Ideology
- 2. Legal Culture
- 3. Power
- 4. Symbolism
- IV. AN ALTERNATIVE APPROACH
- A. DUTCH EXAMPLE: QUESTIONS TO PARLIAMENT
- B. 50 QUESTIONS TO THE EUROPEAN PARLIAMENTS AND STAKEHOLDERS
- V. ANNEX
- A. FIRST SERIES: GENERAL CONTRACT LAW
- 1. General
- 2. Formation
- 3. Validity
- 4. Content and Effect
- 5. Non-performance and Remedies
- B. SECOND SERIES: SPECIFIC CONTRACTS
- 1. Sales
- 2. Services
- 3. Commercial Agency, Distribution, Franchise
- 4. Personal Securities
- C. THIRD SERIES: GENERAL QUESTIONS
- Chapter 10 Social Justice in European Contract Law: A Manifesto
- I. CONTRACT LAW AND THE FUTURE OF EUROPE
- A. THE TECHNOCRATIC APPROACH
- B. THE REAL ISSUES
- C. SOCIAL JUSTICE AND REGULATORY LEGITIMACY
- II. THE TECHNOCRATIC AGENDA FOR EUROPEAN CONTRACT LAW
- A. THE COMMISSION'S ACTION PLAN
- B. THE INTEGRATION AGENDA
- C. THE COMMON FRAME OF REFERENCE
- D. TRAGIC TRAJECTORY
- III. THE SOCIAL JUSTICE AGENDA FOR EUROPEAN CONTRACT LAW
- A. FAIRNESS
- B. CONSTITUTIONALIZATION OF PRIVATE LAW
- C. LEGITIMACY IN MODES OF GOVERNANCE
- IV. CONCLUSION
- Back Cover
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