The Draft Common Frame of Reference and multilevel governance

Abstract

This paper will argue that the Draft Common Frame of Reference (DCFR) ignores the background against which it was formed, while multilevel governance provides a useful analysis of that background. This paper will attempt to use multilevel governance to analyse European private law. The interdependence of actors in a multilayered European private law necessitates that, in forming European private law, governance questions, asking, for example, what actor possesses competence to legislate in private law and what actor possesses important key resources, should precede the formation of European private law. Arguably, governance adds a perspective on the way in which European private law should be formed. It has become necessary to adopt different approaches in the formation of European private law, which can cope with the multilevel character of European private law. This multilevel governance analysis of European private law has been ignored in the formation of the DCFR. Taking into account the insights provided by this analysis, choices made in the formation of the DCFR can be questioned. In particular, the form of the DCFR, which is reminiscent of Civil Codes, as well as the failure to take into account relevant European Union policy and the possibility of adopting different approaches that would take into account the role of non-state actors, or self-regulation provided by non-state actors, can be criticised. These choices are not compensated for by the emphasis on the participation of “civil society” in the formation of the DCFR.

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