There are those who believe that the sun has set on the idea of a nineteenth century code and that it cannot and should not be proposed again in a society such as ours, where law is necessarily fragmentary. There is no longer a coherent system of ethical values on which a uniform and systematic list of regulations can be founded. Each legal system is divided into blocks of regulations that mediate between conflicting interests. A legal system must necessarily be ‘flexible’ and would find it difficult to stand the straightjacket of codification, even if applied only to the contracts sector.
The controversy over the modern relevance of codes has no basis in the initiatives of EU bodies. Not only because the Commission has changed direction in its works and has greatly circumscribed the objectives to achieve (even if the European Parliament continues to call the set of uniform regulations that it wants to introduce a ‘code’) but also because, even if we are dealing with a ‘code’, the end result of the work would obviously not have the characteristics, functions or image or a real civil code.
It would not have these characteristics, because the idea of a code is associated with the tradition of countries. The different paths that national legislators have chosen with regard to codes currently in force demonstrates that each code has its own history and represents an experience that cannot be transferred or shared. A ‘European code’ would be the outcome of the experience and cultures of different countries and of economic and social needs felt at a European level, with its own innovative choices, language and legislative techniques.
It would not have these functions, because the idea of a civil code, once a ‘law for private parties’, today functions as a connective framework between the ‘general’ law and ‘special’ law, between ordinary law and sector codes, between the Constitution and the protection of private interests. A ‘European Code’ would coordinate the regulations of private law issued at the EU level and would reduce them to a systematic order. It would also employ general principles, clauses and terms that were sufficiently vague to be flexible, easily modifiable, interpretable and applicable. It would not have the image or be (as with the European Constitution) the object of plebiscitary voting or referendums. Even if a code is full of values and policies, it requires ability and technical preparations that neither the European Parliament nor the Commission seem to have.
However, so that it does not remain an academic exercise, a code needs both of the above. It needs the Commission to arrange contacts, meetings and discussions between experts and stakeholders, and to enrich texts presented from time to time for examination by competent bodies, with the experience and comments of the interests involved. It needs Parliament, because vital choices: protection of fundamental rights and comparison between conflicting interests, require political evaluations that only the (European) Parliament can provide.
Another question regards the way in which the ‘code’ will be used. Here, obviously, one can choose between a policy of small steps, a policy of free choice for parties, or a policy of ex ante or ex post derogation. All of these choices can be made at a later stage, because they do not affect the methods, content or time frame of editing the work.