Study Group: On an European civil code

Research project P 14685 Study Group: On a European Civil Code Michael RAINER 27.11.2000 Following various decisions of the European Parliament, in 1999 the German Professor for International Private Law Christian von Bar founded a highly representative group of leading European Lawyers in order to prepare a uniform European Civil Code. The steering committee of this "Study Group on European Civil Code is composed by the professors Alpa (Rome) Ayne`s (Paris), v.Bar (Osnabrück), Drobnig (Hamburg), Goode (Oxford), Hartkamp (Den Haag) and Lando (Kobenhavn). It has been a great honour for the Austrian lawyers that two of them Prof. W. Posch (Graz) and Prof.M.Rainer (Salzburg) had been coopted into this group. The task of the Austrian lawyers should be to prepare a proposal regarding the transfer of goods and the position of property rights. In order to present a proposal on a scientific well grounded base Prof. Posch and Prof. Rainer have decided to head a group of young scholars with the aim to investigate the legal solutions of all the European countries. Historical and social aspects are to be taken in consideration aswell as the application of the laws in the different legal systems. The comparison should be an intermediate step and an overall proposal is seen as the conclusion of the work, which is going to be discussed twice a year by the plenary session of the European Group. Prof. Posch and Prof. Rainer are experts on European Private Law, the first being member of the Lando-Commission, the second of the Academy of European Private Lawyers. The Study Gropup on a European Civil Code should unify the different ways in order to prepare a complete draft of an Civil Code to be presented to The European Parliament and the European Commission.

The project manifested challenging results In the first instance the possibility and the feasibility of a pan-European codification of private law have been investigated. In this context possible methods of a whole European legal science have been explored and evaluated. The conducted research produced a substantial description in a specific field common in most legal systems: the so-called property law and especially the transfer of title on movables. Being aware of the complexity of the research only a limited subject area has been chosen. Even a research on property rights and acquisition of property would have led to extreme ample problems because of the different national legal systems in the EU- Member States. The project offered the possibility to carry out an in-depth study in the chosen core area. The solutions offered in the core legal systems will be published in exemplary country reports. The research focused on the differences within the different European legal systems. Three basic models are known: the consensus-system, the tradition-based systems and the so-called "Abstraktionsprinzip". In the first system the ownership is irrelevant, in the other two systems ownership has a key function. The research concentrated around the advantages and disadvantages of the three models. In particular with regard to the feasibility of the chosen solution in a harmonized European legal system. Special interest was dedicated to the consequences of the point in time of transfer of risk. Meant is the risk, that the alienator or the acquirer has to take over, in the case that the movable in the end will not be at the disposition of the acquirer, whether by accidental loss or because of insolvency proceedings. Another important subject of the research concerned the transfer of property of movable goods and the possession in good faith. The main point is the question under which circumstances an acquirer can become an owner, although the alienator has no right to transfer property. The conducted research of the last years made clear that in the field of transfer of property a unification of law can be proposed. This result comes to the conclusion that legal harmonization is possible also outside the core legal fields of private law as contract law and the law of obligations as such. The finding supports the hypothesis, that a future European Civil Code is feasible. This is an academic conclusion and not a political statement. The field of application of the code can offer regulations valid in a multi-level system. As a choice of law, or a so-called optional instrument, next to the existing national codes, as a lex mercatoria, as an opt-in choice of law accepted by the parties and as well as in the end as a common European Civil code in force.