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Smits, Jan M. --- "The Draft Common Frame of Reference: How to Improve it?" [2010] ELECD 221; in Micklitz, Hans-W.; Cafaggi, Fabrizio (eds), "European Private Law after the Common Frame of Reference" (Edward Elgar Publishing, 2010)

Book Title: European Private Law after the Common Frame of Reference

Editor(s): Micklitz, Hans-W.; Cafaggi, Fabrizio

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848444072

Section: Chapter 5

Section Title: The Draft Common Frame of Reference: How to Improve it?

Author(s): Smits, Jan M.

Number of pages: 11

Extract:

5. The Draft Common Frame of
Reference: how to improve it?
Jan M. Smits*

1. INTRODUCTION
The aim of this contribution is to discuss the view of law and lawmaking
underlying the Draft Common Frame of Reference (DCFR).1 It claims that the
DCFR suffers from so-called methodological nationalism and therefore fails
to adopt the right approach to dealing with private law in the European Union.
The theoretical analysis is followed by some concrete suggestions on how to
improve the DCFR so that it better meets its intended functions.
Section 2 offers a brief introduction to the DCFR. It is followed by an
account of what is meant by `methodological nationalism' and how this is
applied in law (section 3). Sections 4, 5 and 6 subsequently offer an analysis
of why the DCFR is to be qualified as an example of this methodology. This
does not mean that the DCFR cannot fulfil a useful role in the present debate,
but it may have to be a different role from that envisaged by the drafters.
Sections 6 and 7 therefore offer an alternative and differentiated perspective
on the way forward in European contract law.


2. THE DCFR: BACKGROUND AND PURPOSE
The presentation of the DCFR to the European Commission on 28 December
2007 was the result of four years of work by the Study Group on a European
Civil Code and the Research Group on the Existing EC Private Law (the



* This chapter benefits from discussion at a workshop at ...