The European Commission’s press release on the publication of the text produced by the expert group on European contract law describes the text in various ways. First it is a “feasibility study on a future initiative on European contract law” – a name which defies acronymising. Interested parties are invited to send their feedback on “the individual articles drafted by the expert group” by 1 July 2011. Then it is said that the Commission will have to determine if and to what extent “the expert group’s text” can serve as a starting point for a political follow-up initiative on European contract law. And finally it is said that this study provides the EU institutions with “a toolbox” for any future EU initiative in the field of contract law.
“Feasibility study” is a nice, neutral, non-committal name which did not, however, feature in the group discussions at all and which is not very accurate because this text is not a study about the feasibility of anything. The only doubt about feasibility within the expert group was whether a text could be produced within the limited time available. The text could be used as a partial basis for discussions about what might be feasible politically, but that is something different.
“Articles drafted by the expert group” is accurate. The group was asked to draft the articles on various assumptions. It was asked from an early stage to proceed “as if” it were preparing an optional instrument. Later it was asked to proceed on the assumption that the optional instrument would be confined to the law on sale of goods, with sufficient general contract law to make the sale of goods law self-standing. Later still it was permitted to add an element of services, but narrowly confined to sales-related services such as installation or maintenance of goods sold. Further working assumptions were that the instrument would cover both business-to-consumer and business-to-business contracts, that it would mirror the maximum harmonisation provisions in the new Consumer Rights Directive and generally embody a high level of consumer protection and that it would be of particular relevance for cross-border contracts. Another assumption was that the text would be of manageable length. Originally a limit of 150 articles was mentioned, to the horror of some members of the group, but later this was relaxed somewhat. (The final text contains 189 articles.) It was always made clear that these working assumptions did not commit the Commission to anything and that, so far as any future contract law initiative was concerned, all options remained open.
“The expert group’s text” is also fine, if the working assumptions mentioned above are kept in mind. The text was produced within certain constraints, but within those constraints it is certainly the expert group’s text. This helps to explain some of its features. It does not use the ghastly drafter’s “shall”, which is scattered all over the English language versions of EU legislation like pigeon droppings on a monument, giving it an antiquated feel and often leading to mistakes and confusion. The text is also rigorously gender-neutral, as all modern legislation should be. The days when it could acceptably be assumed that only men could be legal actors are long gone.
The statement that the text provides the EU institutions with “a toolbox” for any future EU initiative in the field of contract law is intriguing. There seems to be a shift here in the notion of a toolbox. So far I have assumed that references to a toolbox were to a sort of handbook of terms and concepts which could be used to achieve greater accuracy and consistency in EU legislation. In this press release the term seems to be used more in the sense of a draft text which could be used, no doubt with many modifications, for the purposes of, for example, an optional instrument – not the box in which the artist keeps his or her brushes and other tools, not the tools themselves but a rough sketch of what a finished work might look like. This new use of “toolbox” seems to be inaccurate and a bit too clever. It might well kill off this over-worked metaphor. Perhaps that is the real cleverness in its use.
A problem remains. What can we conveniently call this instrument on which people are being asked to comment? What would searchers google if they wanted to find it? It is not the Common Frame of Reference or CFR. It is not an Optional Instrument on European Contract Law. The Feasibility Study on a Future Initiative on European Contract Law is a bit of a mouthful. Maybe it could be shortened to European contract law feasibility study, or ECLFS.