This Essay does not focus on the feasibility of an European Community ("EC") civil code, but rather addresses questions of substance relating to the law of obligations, that is, the law of contract and tort, leaving aside the law of property and family law. Nevertheless, I must state that I do not believe in the feasibility of a uniform Civil Code for the European Community. Rather than employing legislation as the means of bringing about uniformity, I prefer discovering general principles common to statutes and case law of European Union Member State legal systems, as influenced and brought closer to each other, but not justified, by case law from the European Community ('EC') and the European Convention Human Rights judiciary. For indeed, the European Community courts, the European Court of Justice (“ECJ” or “Court”), and the European Court of First Instance (“ECFI”) will not result in the unification of national private laws. Similar to the impact of EC directives on private law, the impact of ECJ case law on private law will only be piece-meal; that is, only visible in some limited fields of private law, and will tend to harmonize, rather than to unify, the national rules in those fields. Therefore, ECJ case law will never lead to any kind of a coherent statutory unification of contract law.
Walter van Gerven,
European Court of Justice Case Law as a Means of Unification of Private Law?,
20 Fordham Int'l L.J. 680
Available at: http://ir.lawnet.fordham.edu/ilj/vol20/iss3/5