This question has been considered mainly by British and Italian scholars, but for somewhat different reasons.
Amongst British scholars, this problem has been studied by Stephen Weatherill. He underlines that, in the three Communications of the Commission (2001, 2003 and 2004 respectively) that make up the development of this growing discipline, this question has remained in the background, almost obscured by other themes, even though this is a crucial problem of a ‘constitutional’ nature, because it directly affects the competence and, therefore, the legitimization of community bodies to deal with the issue.
This competence is exercised under the principle of ‘common rules for a common market’ and began with the harmonization of some rules in certain sectors of consumer contract law. His opinion is that the same Article 153 of the EEC Treaty, by which the Community undertakes to protect the interests of consumers (including their economic interests), could not be the basis of legitimisation; and neither could Article 95 of the Treaty, which refers to Article 153. In other words, radical innovation of a legislative nature, such as drawing up common regulations for contracts in general, could only be the task of the legislating body and be confined only to sectors in which the Union has a precise competency (such as in the area of consumer rights).
Despite the doubts that have arisen, a conference was organized at Oxford by Stephen Weatherill and Stefan Vogenauer, dedicated to evaluating the answers to a questionnaire on this very theme, which had been sent to business people and to organizations representing them, and on the opportunity of constructing a European private law. What strongly emerged was the desirability of uniform regulations in contracts for transnational relations. The fields of application of these general regulations should, according to the survey, be limited to contractual relations with consumers and aimed at improving acquis.
The question has arisen amongst Italian scholars of competence, not only under the profile of textual legitimacy (derived from the EEC Treaty), but of legitimacy of a political nature, regarding the introduction at a European level of a ‘code of contract law’. The assumption of the critique is based on the fact that the expression ‘code’ and the idea of a ‘code’, at least in continental European culture, implies a constitutive process, a basis of consensus and a pre-eminent role in the sources of law and the pillars of the legal system, which cannot be entrusted to a Community body (that is technically incapable of drawing it up) nor delegated to external research centres or to simple checks conducted on exponents of stakeholders. A subject like this should be decided by Member States with the contribution of European citizens.
The problem, therefore, moves away from the technical and into the political dimension.