Failure or Ideological Preconceptions – Thoughts on Two Grand Projects: The European Constitution and the European Civil Code

Abstract

I am interested in the relationship between constitutional and private law. The two Grand Projects, the European Constitution and the European Civil Code, serve as a catalyst to develop my argument. I will first look at the link between the two Grand Projects by placing emphasis on parameters which may help to explain and to analyse the reasons why both ended or seem to have ended in deadlock. I use the metaphor of ‘failure’, meaning the political ‘failure’, the non realisation of the European Constitution which has now been replaced by the Lisbon Treaty and the predictable ‘failure’ of the European Civil Code project, called the Common Frame of Reference, which obviously does not have the support of the European Commission, the Council or the Member States. Ideological preconceptions refer to implicit assumptions which united the elaboration of the two Grand Projects despite their conceptual differences. It will have to be shown that the idea of a European Constitution is at least based on a mandate from the Member States, whereas such a mandate does not exist in the European Civil Code project. So there is an inherent deep difference between the Grand Projects. Seeking deeper links via implicit assumptions, however, suggests that the two Grand Projects are politically and legally connected despite their different origins and functions. Only by understanding the linkage may we create an opportunity to put private law into a constitutional perspective.