The Question Concerning the Common Frame of Reference

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AbstractThe many directives on private consumer law enacted in the last three decades have met with considerable neglect and resistance amongst domestic judges, legislatures and scholars, bringing about less legal unity and more ‘legal fragmentation'—to say it in the words of the Commission. The Draft Common Frame of Reference is one more attempt, on the part of certain strands of European private law scholarship, at imposing a formal break on, and at overcoming, such fragmentation. Presented as a ‘comprehensive and self‐standing’ document, its ambition is to definitively implement the Commission‐generated, market‐orientated agenda of private law reform, so much resisted at the national level. The article argues that the EU legislative institutions should not go ahead with the plan of incorporating the Draft's content in EU law, by adopting a CFR. A CFR would confer an unprecedented degree of authority on a range of contested directive‐generated rules, from the test of fairness to the risk development defence in product liability. In creating a climate in which CFR‐based legalistic arguments promote unity over fragmentation, a CFR would emasculate public debate by implementing, under the spell of legal necessity, exactly those partisan, Commission‐initiated policies that have been, and still are, openly opposed in domestic legal circles. The Draft embodies a grammar of imposition that should be questioned.