Transposing “Pointillist” EC Guidelines into Systematic National Codes — Problems and Consequences

Abstract

The fragmentary character of directives in the field of private law has led not only to unsystematic solutions on the level of Community law, but it also poses a threat to the legal orders of the Member States as far as basic notions of coherence and consistency are concerned. The national legislator may evade this problem by extending the transforming legislation beyond the scope of the respective directive. Where the directive pursues an unconvincing policy, an (unavoidable) inconsistency in the private law is likely to be accepted. Member States that follow the codification approach may be inclined to evade incoherent solutions within the code by transforming the directives into special statutes. Though there may be good reasons for such an approach, in the long run any legal system following the codification principle is bound to integrate Community-based law into its national code. This will lead to increased complexity. In the future, the Community should give up the piecemeal approach to harmonization, and rather strive for a consolidated civil code in the form of a restatement or recommendation.

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