The Europeanization of private law: its progress and its significance for China

Abstract

Ever since the Napoleonic codification of 1804, private law legislation has become a concomitant of the nation state. Although private law essentially lacks particular national characteristics, most civil codes have been enacted by national legislatures. This article gives an account of the efforts of the European Union (EU) to reduce the resulting divergences of the private law of its member states. For a better understanding, it explains the constitutional basis of such legislation in the Treaty on European Union (TEU) and the types of legislative acts available. So far, the EU legislation in this field is often fragmentary and inconsistent. While scholars have called for general principles for many years, the European Court of Justice (ECJ) has not responded to that call so far. Since 1980 scholarly initiatives have therefore taken the lead and prepared a basis for a general future legislation in the area of contract law. On this basis, the European Commission finally published a proposal in 2011 for an optional instrument on a Common European Sales Law (CESL), and this law is now under deliberation. This article explores the potential impact that this future instrument might have on Chinese legislation and on commercial relations between the EU and China.