On the Interpretation of Reformed National Contract Law Provisions in Conformity with European Directives or Lando – and Unidroit-Principles – A Suggestion also for the New Civil Code of Romania?

Studiu publicat în volumul In Honorem Flavius Antoniu Baias. Aparența în drept, tomul II, Ed. Hamangiu, București, 2021, p. 338-346.

The new Civil Code of Romania of 2011^[1] is a relatively new European Civil Code which deserves attention also outside of Romania. And happily enough there already is a French translation of the Code^[2] and on specific subjects there are also chapters of books in English, French or German which can be instructive for non-Romanian readers^[3]. As is well-known, the new Civil Code has been influenced by a number of foreign legal systems. Whereas the old Civil Code of 1865 had been very close to the French Code civil of 1804^[4], the new Civil Code thus has developed some distance to French civil law. At least to the outsider, this looks like a relatively logical development, because the Greater Romania born through the “Marea Unire” after the First World War, for considerable time had been a “legal mosaic”^[5] composed of territories where either the Civil code or the Austrian Allgemeines Bürgerliches Gesetzbuch or, in some local communities, Hungarian law had applied. A new, more internationally open Code had been promulgated in 1940, but not been set into force. And then the Code of 1865 had been introduced completely in Transylvania only in 1943 – in the South –, respectively in 1945 – in the North. From a European and a Comparative perspective, the more international Code of 2011 makes Romanian civil law even more interesting then under the old Code: How are certain questions which have found different solutions in, say, French, Austrian or German, Italian, Quebec, Swiss or other laws or international instruments dealt with in this new codification? Can the solutions finally adopted in the new Civil Code perhaps even serve as a model for other countries or for harmonization projects?

However, this paper cannot look into details of Romanian civil law, it shall try to look at the other side of the coin: What could arguably be the consequences for the interpretation of some of the provisions of the new Civil Code? As dean Flavius A. Baias has actively cooperated in the creation of the new Civil Code and is in the same time also present on the scene of comparative law – as shown by his role in the Association Henri Capitant, but also his much appreciated support of Bucharest-Würzburg cooperation programs –, I hope he will find this interesting. Though, a caveat, may be even an apology (under conditio suspensiva), must be made from the outset: These lines are just suggestions by not a Romanian, but by a foreign lawyer and it will be for Romanian academia and practice to see whether these are good and workable or not. 

Though not a French civil lawyer, I will adopt here a plan en deux parties:^[6] First, on EU Directives and their transpositions, second, on Lando or UNIDROIT Principles and their function as a model.

§1. EU-Directives and their transposition provisions in Romania

1.1. EU-Directives and private law

When Romania, on January 1^st, 2007, joined the European Union as a Member State, the European Community had, since 1985, already passed a number of directives in the field of private law. Thus, segments of European private law had already been created and since 2007 they have expanded further^[7]. As it is well-known, EU-directives under art. 288 TFUE are addressed to the Member States and have to be transposed on the national level. Directly applicable EU-Regulations are rare in the field of general private or consumer law, but a common phenomenon in transport law or international civil procedure and, in addition to directives, in the fields of company and intellectual property law^[8]. For the transposing provisions, the ECJ has since decades developed the Member State’s obligation to interpret the transposition provisions in a manner in conformity with the directive.^[9] Thus, the implementing provisions – and sometimes even others – have to be interpreted in conformity with the directive. This often implies an interpretation of the provisions of the directive itself. For this interpretation, the preliminary reference procedure of art. 267 TFEU is available. 

Not all, but most of the existing EU private law is consumer law and there the Member States’ preferences for the way of implementation diverge: Romania seems to prefer enacting specific statutes implementing directives instead of integrating them in an existing codification^[10] as common, e.g., in Germany where the Bürgerliches Gesetzbuch now has many European elements originating from directives. Both methods have their strengths and weaknesses. In practice, for private law related Romanian requests for preliminary reference this means that very often a provision of such a specific implementing act is to be applied by the Romanian court, not necessarily an article of the new Civil Code. But, nevertheless articles of the Civil Code may play their role. And at least where an implementing provision is part of a Code, it would be a Code provision the interpretation of which is giving rise to the preliminary reference. 

1.2. Romanian private law related preliminary references

As a matter of fact, Romanian courts have already, in a considerable number of cases on private law, issues made preliminary references to the ECJ. This has led to a number of remarkable decisions of the ECJ on EU private law directives. Of course, the Romanian cases have to be seen as the Romanian contribution in the general European EU-concert and on the European level they interact with those decisions which by the ECJ have been rendered on requests for preliminary rulings by courts of other Member States. But on the national, here Romanian, level, they should be part of the European interpretation of certain provisions of Romanian civil and consumer law.

Until now, at least ten decisions have, on references by a Romanian court, been rendered on the interpretation of the Directive 93/13 on unfair terms in consumer contracts^[11] by the ECJ^[12]. In the first one, the directive ratione temporis was not yet applicable^[13], but the others go to the merits. They mostly concerned credit agreements, often in foreign currency. But there is also a very interesting case on consumer law in general and hypothec^[14], which is of general importance for European consumer law. At least three cases directly concerned article 1578 Civil Code^[15]. One case directly addresses the consumer credit directive^[16]. Further, there are some cases on non-discrimination and probably also on other fields. 

From the perspective of EU-law, it has to be stressed that this European interpretation is not just an option for national legal practice, but it is an obligation of the Member States which follows from primary EU-law. It can require a preliminary reference to the ECJ. Though it is true that also in older Member States this obligation is not always taken seriously even by the highest courts in civil matters^[17]. This in no way does away with or weaken this obligation. And, by asking preliminary questions to the ECJ under art. 267 TFEU – and perhaps even indicating in the request what might be the preferable answer by the ECJ – Romanian as well as other Member State courts can actively participate in the EU-wide shaping and development of European Private Law.

While in Romania this obligatory interpretation in conformity with a directive seems to apply more to specific implementing acts than to provisions of the new Civil Code, another possible way of international or European interpretation could arguably be employed for certain new provisions of the new Code.

§2. Lando or UNIDROIT Principles as a model for Romanian provisions

2.1. European and International Principles

Besides national codifications, the Exposé des motifs for the new Civil Code inter alia mentions the Principles of European Contract Law (PECL) of the Lando Commission as sources of inspiration and also the UNIDROIT Principles of International Commercial Contracts (UPICC) by UNIDROIT have played their role. At our first Bucharest-Würzburg Summer School on European Law, Dan Oancea has made up an impressive tableau of the European and international influences on the law of obligations in book 5 of the new Civil Code and mostly referred to the Lando and UNIDROIT Principles. The same phenomenon as in Romania can be observed in several other nations’ reform laws in the area of law of contracts and obligations. 

In my view, this raises the question whether this can open up new perspectives for a more European or international interpretation of provisions of national, here Romanian, civil law. Lando and UNIDROIT Principles of course are not the same; but with regard to the two bodies Lando Commission and UNIDROIT Working Group, it is good to keep in mind that some important persons were members of both groups and that both groups also exchanged their drafts^[18] – thus, it is not surprising that in the substance both sets of rules are very similar, tough there are also divergencies^[19].

The Lando Principles have, alongside their black letter-rules, Comments with illustrations and also comparative notes. The UNIDROIT Principles do not have this kind of notes. However, an advantage of the UNIDROIT Principles appears to be that over the years the academic environment surrounding them has developed with more vigour than for the Lando Principles. For the Lando Principles there sure is a series of books explaining their relationship to individual national legal systems, e.g. for the Netherlands^[20]. Further, there are now the monumental “Commentaries” edited by Jansen and Zimmermann, which cover the PECL extensively, but at the same time go beyond them^[21]. But for the UNIDROIT Principles there are many publications by their important promotor Michael Joachim Bonell^[22], many articles in the Uniform Law Review^[23], an international commentary edited by Vogenauer^[24], a shorter commentary by Brödermann^[25] and even an older Spanish commentary^[26]. 

Arguably, all this can be helpful in interpreting provisions of national contract law which have as their source a rule of the UNIDROIT Principles or a similar rule of the Lando Principles.^[27] Further, the Unilex database^[28] collects court decisions and arbitration awards citing the UNIDROIT Principles^[29] Sure, decisions citing a specific UNIDROIT rule often may not be really based on that provision but just refer to it in some way. But some cases may provide examples of application of a rule of the UNIDROIT Principles and may ideally even be apt to provide a kind of persuasive precedent. It would be interesting, in my opinion indeed fascinating, to see whether these international or European materials can in practice be helpful in the interpretation and application of provisions of the new Civil Code in Romanian practice.

In the same way, a national decision applying a national provision which is based on a UNIDROIT rule should in other countries and internationally – e.g. by arbitral tribunals – be regarded as a kind of precedent for the interpretation of the relevant UNIDROIT Principle – and other countries’ national provisions based on this principle. Thus, a Romanian court decision interpreting a provision of the new Civil Code based on, e.g., a rule of the UNIDROIT Principles should in other countries be regarded as an application of this UNIDROIT rule – and also an interesting precedent for the interpretation of that country`s provision which is based on that Principle. Ideally, this could considerably enhance European and international legal discourse. In comparative law, sometimes the interpretation of national legal rules in the light of comparative law has been researched and suggested^[30]. But the approach discussed here would be much more concrete, because the same rule, though just in different European, international or national clothing^[31], is concerned, albeit in different countries. Of course, in this approach there is nothing which would be automatic or mandatory. It is well known that even in countries where the same legal text, e.g. the French Civil Code of 1804, had been in force, the interpretation of specific provisions sometimes has been different from country to country, e.g. in France or Belgium or, in the 19^th century, in France and those German territories which had been annexed by Napoleon Bonaparte and where after 1815 the Civil Code had been maintained until the introduction of the BGB,^[32] – may be also in France and Romania under the old Code. Nevertheless, arguably, this approach nowadays could be useful. 

2.2. Some Examples

In order to assess the feasibility of such an approach, an extensive study of Romanian law would be necessary. Here, only a short glimpse can be had into some provisions. 

An interesting example might be art. 1271 of the new Civil Code on changed circumstances. Though it is not identical with art. 6.111 PECL on changed circumstances or art. 6.2.1 to 6.2.3 UPICC on hardship, it obviously is very close to them, especially to art. 6.111 PECL.^[33] The Romanian legislator, however, has apparently preferred to stress the binding force of the contract a bit more and has inserted the requirement that requiring the debtor to perform his obligation is obviously unjust. Further, renegotiation by the parties in art. 1271 of the new Civil Code has lost its prominent place in an independent sub-paragraph (2) of art. 6.111 PECL preceding sub-paragraph (3) on the powers of the court and in Romania has been reduced to an attempt to renegotiate as a mere further prerequisite for court intervention in (2) (d) of art. 1271 of the new Civil Code. The express “beyond control”-clause of art. 6.2.2 (c) UPICC is neither to be found in the PECL nor in art. 1271 of the new Civil Code but that should make no difference in substance. Art. 6.2.3 UPICC also has some more procedural clarifications not to be found in the other texts. Thus, art. 1271 of the new Civil Code is not identical to its models in PECL and UPICC, but very close at least to the rule in PECL, quite so also to UPICC. Without any automatism and with a bit of precaution, Romanian practice may perhaps find useful guidance in materials and practice on PECL and UPICC.

Art. 1277 sentence 1 of the new Civil Code on Contract for an indefinite period gives a right to end such a contract by granting a reasonable period of time. This appears to copy art. 6.109 PECL and art. 5.1.8 UPICC. Whereas art. 6.109 PECL just has this one sentence, the new Civil Code and art. 5.1.8 UPICC each have a second sentence, but on different issues – the first on the mandatory character, the second on legal consequences. However, the core of art. 1277 of the new Civil Code undoubtedly is of uncompromised European origin! Therefore, materials and practice on the rule in PECL or UPICC should hopefully be useful for Romanian legal practice. 

The right to performance in natura is expressly regulated in art. 1527 of the new Civil Code. Also Art. 9.101 and 9.102 PECL and art. 7.2.2 and 7.2.3 UPICC have provisions on the right to performance, but much longer and more restrictive ones. Here, there is considerable difference. Materials and practice on the rules in PECL and UPICC will thus probably be of less usefulness.

This short glimpse shows that there apparently are differences in identity and variations between provisions of the new Civil Code and PECL or UPICC. An overall assessment for the law of obligations of the new Civil Code would require further study. Thus the suggested European or international interpretation of provisions of the new Civil Code apparently requires a very close look and some caution, but it may nevertheless be helpful in applying the law of obligations of the new Civil Code.

Conclusion

Especially with a view to its European and international inspirations, it will be very interesting to see how the provisions of the new Civil Code are and will be applied in Romania, also for the foreign comparative lawyer. Interpretation in conformity with the directive is obligatory and, to judge from Romanian requests for preliminary reference, already applied in practice, but apparently generally concerns more specific transposition acts of consumer legislation, less the new Civil Code. A number of provisions of the law of contract and obligations of the new Civil Code is influenced by the PECL and/or the UPICC and this raises the question of a European or international interpretation of these Code provisions. A quick glimpse into a small number of provisions shows that the Romanian provisions of the new Civil Code are not necessarily true copies of their models, but apparently follow them to a variable degree, sometimes copying, sometimes having some or more variations. This will call for a very close look and some caution, but materials and practice on PECL and UPICC may, to a varying degree, hopefully nevertheless prove useful for Romanian legal practice. But only a more detailed study and practical experience can show to which extent such a European or international interpretation can influence the practical application of the new Civil Code. In the dreams of a foreign comparative lawyer, this could be a gain for European and international civil law dialogue including Romania.

Footnotes

^[1] Legea nr. 287 din 17 iulie 2009 privind Codul civil, M. Of. nr. 511 din 24 iulie 2009 and Lege nr. 71 din 3 iunie 2011 pentru punearea în aplicare a Legii nr. 287/2009 privind Codul civil, M. Of. nr. 409 din 10 iunie 2011, verfügbar auf http://www.legislatie.just.ro .

^[2] Nouveau Code Civil Roumain, traduction commentée, traduction de la loi roumaine no. 287 du 17 juillet 2009 portant Code civil, telle que modifiée par la loi no. 71 du 3 juin 2011 de mise en application = Noul Cod civil, ed. by D. Borcan, M. Ciuruc, 2013.

^[3] See e.g. A. Menyhárd, E. Veres (eds.), New Civil Codes in Hungary and Romania, 2017; Fl.A. Baias, R. Dincă (eds.), Le nouveau Code civil roumain: Vu de l’intérieur – Vu de l’extérieur, Le colloque international, 23, 24 et 25 octobre 2013, two volumes, 2014; C. Alunaru, Das ABGB in Rumänien (frühere Geltung und heutige Ausstrahlung), in: C. Fischer-Czermak (ed.), Festschrift 200 Jahre ABGB, 2011, p. 101. A short introduction into Romanian law in French language can be found in Fl.A. Baias, M.D. Bob (eds.), Droit de la Roumanie, 2018, reviewed by Remien in RabelsZ (85) 2021 (in print).

^[4] Fl.A. Baias, M.D. Bob, previous footnote, 13 f.; P. Arminjon, B. Nolde, M. Wolff, Traité de droit comparé, 1950, I 150 no. 83.

^[5] M.D. Bob, Der Einfluss des ABGB 1811 auf das rumänische Zivilrecht, in: M. Geistlinger (ed.), 200 Jahre ABGB – Ausstrahlungen, die Bedeutung für andere Staaten und andere Rechtskulturen, 2011, 143, 145.

^[6] Cf. Barraud, L’usage du plan en deux parties dans les facultés de droit françaises, in R.T.D. civ. 2015, p. 807-824.

^[7] For an overview see e.g. Heiderhoff, Europäisches Privatrecht, 5^th edition 2020.

^[8] A number of different areas has some years ago been analyzed in E.-M. Kieninger, O. Remien (eds.), Privat- und Wirtschaftsrecht im Zeichen der europäischen Integration, 2004.

^[9] See already Case 14/83, ECJ 10.4.1984 (von Colson and Kamann v. Land Nordrhein-Westfalen), Rep. 1984, 1891 = ECLI:EU:C:1984:153.

^[10] See e.g. Act 193/2000 implementing Directive 93/13 on unfair contract terms – Legea nr. 193 din 6 noiembrie 2000 privind clauzele abuzive din contractele încheiate între profesionişti şi consumatori, M. Of. nr. 543 din 3 august 2012, or Act 449/2003 implementing the Directive 1999/44 on certain aspects of the sale of consumer goods and associated guarantees – Legea nr. 449 din 12 noiembrie 2003 privind vânzarea produselor şi garanţiile asociate acestora, M. Of. nr. 347 din 6 mai 2008. 

^[11] Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, O.J. 1993 L 95/29. On unfair terms in commercial contracts in Romanian law see I.-F. Popa, G.-L. Zidaru, in: H. Wais, T. Pfeiffer (eds.), Judicial Review of Commercial Contracts, in print, 250, 254 et seq. mn. 13 et seq. 

^[12] ECJ 26.2.2015, Case C-143/13 (Matei v. SC Volksbank România SA), ECLI:C:2015:127; ECJ 3.7.2014 – Case C-92/14 (Tudoran v. SC Suport Colect SRL), ECLI:EU:C:2014:2051; ECJ 3.9.2015 – Case C-110/14 (Costea v. SC Volksbank România SA), ECLI:EU:C:2015:271; ECJ 19.11.2015 – Case C-74/15 (Tarcău v. Banca Comercială Intesa Sanpaolo România SA), ECLI:EU:C:2015:772; ECJ 14.9.2016 – Case C-534/15 (Dumitraş v. BRD Groupe Société Générale – sucursala Satu Mare), ECLI:EU:C:2016:700; ECJ 20.9.2017 – Case C-186/16 (Andriciuc v. Banca Românească SA), ECLI:EU:C:2017:703; ECJ 9.7.2020 – Joint Cases C-698/18 and C-699/18 (SC Raiffeisen Bank and BRD Groupe Societé Générale SA v. JB and KC), ECLI:EU:2020:181; ECJ 9.7.2020 – Case C-81/19 (NG, OH v. Banca Transsilvania SA), ECLI:EU:C:2020:217; ECJ 25.11.2020 – Case C-269/19 (Banca B. SA v. A.A.A.), ECLI:EU:C:2020:954; ECJ 14.4.2021 – Case C-364/19 (XU and Others v. SC Credit Europe Ipotecar IFN SA and Credit Europe Bank NV), ECLI:EU:C:2021:306.

^[13]  ECJ 3.7.2014 – Case C-92/14 (Tudoran v. SC Suport Colect SRL), ECLI:EU:C:2014:2051.

^[14] ECJ 3.9.2015 – Case C-110/14 (Costea v. SC Volksbank România SA), ECLI:EU:C:2015:271.

^[15] ECJ 20.9.2017 – Case C-186/16 (Andriciuc v. Banca Românească SA), ECLI:EU:C:2017:313; ECJ 9.7.2020 – Case C-81/19 (NG, OH v. SC Banca Transilvania SA), ECLI:EU:C:2020:217; ECJ 14.4.2021 – Case C-364/19 (XU v. SC Credit Europe Ipotecar IFN SA und Credit Europe Bank NV), ECLI:EU:C:2021:306.

^[16] ECJ 12.7.2012 – Case C-602/10 [SC Volksbank România SA v. Autoritatea Naţionala Protecţia Consumatorilor – Comisariatul Judeţean pentru Protecţia Consumatorilor Călăraşi (CJPC)], ECLI:EU:C:2012:443; the case is interesting also with regard to the freedom to provide services.

^[17] For an in my view regrettable recent example see Bundesgerichtshof 22.9.2020 – XI ZR 219/19, NJW 2020, 3629 on the consumer’s right of withdrawal and suretyship, further Remien, The Surety and the European Consumer’s Right of Withdrawal – Episodes of a Strange Story, Banking and Financial Law Review (in press). 

^[18] I had the honour of serving over years as Secretary to the first Lando Commission and am keeping many memories on how the work proceeded. 

^[19] See e.g. O. Remien, Die Unidroit-Prinzipien und die Grundregeln des Europäischen Vertragsrechts, in: E. Cashin-Ritaine, E. Lein (eds.), The UNIDROIT Principles 2004, Their Impact on Contractual Practice, Jurisprudence and Codification, Reports of the ISDC Colloquium (8/9 June 2006), 2007, 65-76. 

^[20] D. Busch et al. (eds.), The principles of European contract law and Dutch law, A commentary, 2002. 

^[21] N. Jansen, R. Zimmermann (eds.), Commentaries on European Contract Law, 2018, reviewed by von Bar, AcP 219 (2019) 593-596.

^[22] E.g. M.J. Bonell, An international restatement of contract law, The UNIDROIT principles of international commercial contracts, 3^rd ed. incorporating the UNIDROIT principles 2004, 2005.

^[23] Just one example O. Remien, Public law and public policy in international commercial contracts and the UNIDROIT Principles of international commercial contracts 2010: a brief outline, ULR 2013, 262.

^[24] S. Vogenauer (ed.), Commentary on the UNIDROIT principles of international commercial contracts (PICC), 2^nd ed. 2015.

^[25] E.-J. Brödermann, UNIDROIT principles of International Commercial Contracts, An article-by-article commentary, 2018.

^[26] L. Alvarado Herrera, D. Morán Bovio (eds.), Comentario a los principios de Unidroit para los contratos del comercio internacional, 2^nd ed. 2003.

^[27] Admittedly a similar question can be asked where the new Civil Code is inspired by the Civil Code of Quebec or the Italian Codice civile. 

^[28] http://www.unilex.info .

^[29] Available online. See previous footnote.

^[30] E.g. on Germany Drobnig, Rechtsvergleichung in der deutschen Rechtsprechung, RabelsZ 50 (1986) 610.

^[31] Remembering Roppo’s words, that Directive 93/13 is “a corpo Tedesco rivestito con qualche habiti franchesi”, see Roppo, La nuova disciplina delle clausole abusive nei contratti fra imprese e consumatori, in: Atti del convegno di studi sull tema Condizioni generali di contratto e direttiva C.E.E. n. 93/13 del5 aprile 1993, raccolti a cura di Ernesto Cesàro, 1994, 83-116, 85.

^[32] This applied to important, but not to all territories annexed under Napoleon Bonaparte.

^[33] See also I.-F. Popa, G.L. Zidaru, supra note 11, 250, 257 et seq. mn. 29 et seq.