International Construction Law Review
THE CASE FOR THE EUROPEAN LEX CONSTRUCTIONS
DR. CHRISTIAN E.C.JANSEN1
Senior lecturer Tilburg University, The Netherlands (Department of Private Law and Center for Liability Law). Part-time legal advisor Royal Volker Wessels Stevin Rotterdam.
1 INTRODUCTION
Many of us will recall the attempts undertaken by the European Union in the past decade to harmonise aspects of European construction contract law.2
Following the Mathurin report of 1989,3
the European Commission produced several Working Documents, Discussion Papers and questionnaires,4
and sought the advice of a substantial amount of interested bodies and government departments, both national and supranational,5
as to how to proceed in this delicate and difficult matter. The Commission’s attempts invoked constant and fierce criticism, particularly from the European construction sector. Eventually, this criticism has led to the inglorious decline of the Community policy process.6
At the turn of the century, however, harmonisation of European construction contract law is on the agenda once again. Whether this new initiative will result in the completion of a European Civil Code on
1 This paper was presented at the First Annual King’s College Construction Law Association Conference in London on 5 June 2000.
2 See J Uff and N Jefford, European Harmonisation in the Field of Construction [1993] ICLR 122; CEC Jansen, Unification of Liabilities in the European Construction Industry [1995] ICLR 440; DDW Helps, Harmonisation of Construction Law and Practice—Part I: The Current Position [1997] ICLR 525; H Beale, Harmonisation of Construction Law and Practice—Part II European Principles of Contract Law and Construction Contracts [1998] ICLR 85.
3 Commission of the European Communities, Study of responsibilities, guarantees and insurances in the construction industry with a view to harmonisation at community level.
III/8326/89-EN, Final Report (condensed version).
4 Commission Working Document of 2 July 1990, Possible action to be taken on the study of responsibilities, guarantees and insurances in the construction industry with a view to harmonisation at Community level,
III/3750/90-EN; Discussion Paper of 29 March 1993, concerning possible Community action with regard to liabilities and guarantees in the construction sector,
III/4225/92. As to the questionnaires, see: GAIPEC factual studies
[1996] ICLR 120.
5 For instance, the Groupe Réflexion, Information, Management (GRIM) and the Groupe des Associations Interprofessionnelles Européennes de la Construction (GAIPEC). On 25 September 1992, GAIPEC presented a report that was sent by the Commission to approximately 320 representative bodies and departments, together with the aforementioned Discussion Paper. By 1994 the Commission received 88 responses to the GAIPEC-report and the Discussion Paper. A fair majority disposed to any Community action being undertaken.
6 A detailed and critical analysis of the attempts by the European Commission between 1988 and 1998 is to be found in CEC Jansen, Towards a European building contract law. Defects liability: a comparative legal analysis of English, German, French, Dutch and Belgian law,
Tjeenk Willink (Kluwer), Deventer 1998, pp 73–90.
[2000
The International Construction Law Review
594