Max Planck Encyclopedia of European Private Law
The development of European private law by means of legislative instruments and regulatory mechanisms of the European Union generally occurs on the basis of decisions serving the short-term requirements of political agendas. There has been no overarching concept and this has resulted in a body of rules that is not easy to penetrate.
In response to these developments, in 2009 the Max Planck Institute for Comparative and International Private Law published the Handwörterbuch des Europäischen Privatrechts, which has now been published in English as the Max Planck Encyclopedia of European Private Law. It is not just a translation but an independent volume customised for the different legal backgrounds of an international readership. In line with the encyclopaedic format, key terms are ordered alphabetically and enhanced with cross references. The key terms are also listed in thematic and subject indices and there is a comprehensive bibliography. Due to the complexity of the material, this is not just a mere dictionary. Instead, with systematic key terms and the inclusion of inaccessible specialised literature, this Handbook is intended to create a solid foundation for a subsequent systematic understanding of European private law.
Europeanisation of private law
For more than twenty years, private law has increasingly been part of a common European legal scholarship. The development of European legal scholarship has a long, but not unbroken, tradition. According to Franz Wieacker, since the 12th Century the ius commune has constituted a European common law and has been the subject of European scholarly discourse. The end of this discourse was prompted by the codifications of the ‘Age of Reason’, particularly the Prussian Allgemeines Landrecht für die Preußischen Staaten (1794), the French Code civil (1804) and the Austrian Allgemeines Bürgerlichen Gesetzbuch (1811). The second great wave of codifications following in the wake of the creation of the modern nation state in the middle of the nineteenth century, which resulted inter alia in the Italian Codice civile (1865), the Swiss Obligationenrecht (1883) and the German Bürgerliches Gesetzbuch (1896), buried the idea of a common European jurisprudence. There followed a period in which the private law systems of Europe became isolated vis-à-vis each other.
No contrary trend was visible until the economic integration of Europe began after the Second World War. Whilst European integration in the 1960s focused on harmonising company and corporate law, the emphasis in the 1970s was on social policy, as evidenced by directives on individual employment rights. As part of the single market programme of the 1980s under the leadership of Commission President Jacques Delors, there was a realignment of community legal policy towards the harmonisation of individual areas of private law. This built on the existing competences of the European Community which were expanded in the Treaties of Amsterdam and Lisbon. The Treaty of Amsterdam gave the Community the competence to legislate in the areas of international private law and civil procedure; the Treaty of Lisbon got rid of the single market requirement of the Union. The European influence on private law subsequently began to increase. So-called Union private law overlies, pervades and displaces national private laws ever more strongly.
However, European private law is not being developed on the basis of systematic deliberations and concepts, but on decisions that have more to do with the short-term political agenda. This has resulted in a body of rules that is not easy to penetrate. The European Union enacts directives and regulations, and the Court of Justice of the European Union interprets European Union law, thereby influencing definitions and principles that are also important for the national laws of the Member States. Directives have assumed a prominent position among the legislative tools available to the European Union with respect to private law, particularly for the areas of contract, company, employment and copyright law. The legislatures of the Member States have transposed innumerable European Directives with the intent of harmonising the law. Examples are the Directives on e-commerce, on unfair terms in consumer contracts, on consumer credit, on the protection of consumers in respect of distance contracts, on certain aspects of the sale of consumer goods and associated guarantees, on package travel, and on liability for defective products. Regulations aimed at harmonising laws which have direct effect in each Member State have also changed the national laws: Examples include international private and procedural laws being amended by Regulations (Rome I, Rome II); changes to antitrust laws (Regulations on group exemptions from antitrust prohibitions), supranational legal reforms introduced in company law (European companies, European cooperatives, European Economic Interest Grouping); changes in contract law resulting from the Regulation on fees for cross-border credit transfers or the Regulation establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. A Regulation introducing an optional instrument in the field of European Sales Law is currently under consideration.
Furthermore, the effects of primary European law under the European Union Treaties on private law must be emphasized. Individuals may rely on the basic freedoms (free movement of goods and people, free movement of workers, freedom of establishment, freedom to provide services, and freedom of capital movements and payments) and on the freedom of movement of European citizens derived from their citizenship of the European Union, and require that contrary national rules of Member States do not apply. The Court of Justice of the European Union also monitors the interpretation of national legal norms and measures these against the basic freedoms. The recognition of the general principle of equality by the Court since 1980 has resulted in various prohibitions on discrimination, which have a significant impact on private law.
European private law is developing on different levels. As well as the statutory legislation of the European Union, there are also older lines of development. For over a hundred years there have been efforts to break through the national isolation in important areas and to find solutions at the level of international cooperation. This led to the signing of international conventions in areas such as intellectual property (Paris Convention 1883, Bern Convention 1886, the founding of the World Intellectual Property Organization — WIPO 1967), the international sale of goods (UN Convention on Contracts for the Sale of Goods 1980), air travel law (Warsaw Convention 1929, Montreal Convention 1999), shipping law (Hague Rules 1924, Visby Rules 1968), and also in non-commercial areas such as child protection (Hague Convention on the protection of minors 1961, Hague Convention on child abduction 1980, Hague Convention on child protection 1996).
Since the 1950s there has also been Helmut Coing’s concept of European legal history emphasizing the unity of European legal scholarship in the ‘past, present and future’ and drawing attention to common roots and the mutual exchange of ideas. The aim of this intellectual current is to guide future European scholarship towards increasing harmonisation by remembering the common sources of European private law. Since the 1980s comparative law has also focused on the goal of harmonising private law in Europe. Building on this, the Principles of European Contract Law have taken a comparative law approach and did not prioritise any individual legal system. These Principles were drawn up by a private group of European academics led by Ole Lando; Ulrich Drobnig and Reinhard Zimmermann represented the Institute in this group. The main focus of the Principles is to find a common core of contract law rules for the European Member States. In structure they are similar to the Restatements of US law. Other groups were set up, inspired by the work of the Lando Commission; in 2005 these were brought together by the European Commission as a Joint Network on European Private Law and charged with drawing up a Common Frame of Reference. A leading role in this development is played by the Study Group on a European Civil Code and the Acquis Group. Book IX of the Common Frame of Reference on Security Rights in Movable Assets was drawn up by a working group in the Institute led by Ulrich Drobnig. A further step towards a European private law was the foundation of the European Law Institute (ELI) in Paris in May 2011. The ELI was set up primarily by legal academics but addresses all areas of the law and branches of the profession. The chairs of the ELI Founding Committee were Irmgard Griss, President of the Austrian Supreme Court and President of the Association of Supreme Court Presidents in the European Union, and Reinhard Zimmermann.
Based on the legislative activities of the European Union and guided by historical and comparative research, legal scholarship has turned to the issue of European private law. However, the legal sources remain complex, and there is still no overarching concept: The legislative process of the European Union is uncoordinated and without plan or system.
Therefore, the question arises of how academics, practitioners and politicians may cut their way through this jungle.
The Max Planck Encyclopedia of European Private Law
In response to this, in 2009 the Max Planck Institute for Comparative and International Private Law published a two-volume Handwörterbuch des Europäischen Privatrechts, which is now also available as a student edition. After a further two years of work an English version has been published by Oxford University Press as the Max Planck Encyclopedia of European Private Law. It is not just a translation of the German publication but an independent volume customised for the different legal backgrounds of an international readership.
The Encyclopedia consists of close to 500 structured entries. Based on legal history and the comparative material available, each entry explores current developments and future harmonisation projects – where they exist – for all areas of private law. A bibliography provides an overview of the most important literature for further reading. The Encyclopedia thus provides an overview of European private law and constitutes a central source of reference for academics, practitioners and politicians. Particularly useful are references to special norms, the case law of European and international courts and further reading material. In line with its format as an Encyclopedia, entries are in alphabetical order. Each entry includes numerous cross-references to other entries. The entries are also listed in thematic and subject indices, and there is a central legal bibliography.
As with the Handwörterbuch des Europäischen Privatrechts, edited with the assistance of Martin Illmer, the Max Planck Encyclopedia of European Private Law is an Institute collaboration involving all its academic areas and is published by Institute Directors Jürgen Basedow and Reinhard Zimmermann and the former Director Klaus J. Hopt with the assistance of Andreas Stier. The entries have been written by over 120 contributors, mainly current or former staff at the Institute, but also external academics closely associated with the Institute.
The Max Planck Encyclopedia of European Private Law gathers together legal knowledge about European private law and makes it available to European private law academia. It is not a mere dictionary – a collection of legal terms with short definitions. The material is too complex for this sort of treatment. But it is also not a systematic work of reference that investigates all aspects of European private law in general and in special parts. This is because European private law is still too scattered due to the uncoordinated enactment of rules and current scholarly debate. For a truly systematic work the time is not yet ripe. But where the law is already sufficiently mature, the Encyclopedia contains systematic entries (such as community law or interpretation). Other entries address individual sources of community law (such as insider dealing, bank transfers, or European patents).
Although the Encyclopedia is not a systematic handbook, it is much more than a mere compilation of the available knowledge. It addresses areas of the law where information is presently attainable only through relatively inaccessible specialised literature or has not yet been the object of research. For many areas the structured approach to the material under the guiding principle of the development of harmonised law is completely new. The Encyclopedia establishes the foundation for a subsequent systematic treatment of European private law.
Now, owing to a special agreement reached with publisher Mohr Siebeck, the content of the German-language Handwörterbuch is globally accessible at no cost in an online version here.
For this large and ambitious project, good use could be made of the resources of the Max Planck Institute for Comparative and International Private Law. For years the Directors have designed the research programmes of the Hamburg Institute around the theme of European private law. Expanding from this focus, in which the research interests of members of the Institute overlap, academic staff of the Institute have a wide range of research interests. This meant that the wide thematic range of the Max Planck Encyclopedia of European Private Law could largely be covered by Institute staff. Most of the thematic entries were contributed by current and former members of staff. Some entries came from renowned external contributors who have maintained a close association with the Institute. These contributors include former judges of the Court of Justice of the European Union.
Institute resources were also used for the difficult linguistic correction and revision and for the extensive editorial processing of the material. Institute Directors Jürgen Basedow and Reinhard Zimmermann and the former Director Klaus J. Hopt together with Andreas Stier, a research fellow at the Institute, were responsible for the editorial work. Each of the almost 500 entries was subject to linguistic checking by Michael Friedman as well as the Institute director responsible for the subject matter of the particular entry. The editorial team comprised five permanent and seven temporary members. Secretarial staff of the Institute provided valuable assistance. The role of the library of the Max Planck Institute must also be highlighted. With more than 500,000 volumes, the library contains material that provides an excellent basis for research in almost all areas of private law included in the Encyclopedia and was used extensively. The successful completion of this project within a relatively short time frame is due to the intense efforts made by all involved in this project. As with the Handwörterbuch des Europäischen Privatrechts, the Institute’s Max Planck Encyclopedia of European Private Law is a truly collective effort highlighting the concentration of subject competence at the Institute and reflecting the spirit of cooperation and solidarity of all Institute staff and the external contributors.