Analytics, Legislation, Modern EU

In the new Commission (2019-24) there are two Commissioners that are mainly dealing with the legal issues: Didier Reynders for justice and Elise Ferreira for cohesion and reforms. However, all other “sectoral” Commissioners are dealing also with the legal issues in their spheres of integration, e.g. energy, transport, environment, etc.

Civil law guiding legal approach

As a legal system of a European continental origin (often associated with the framework of Roman law), it has as the main feature the principles of a codified legislation. In this sense, it is contrasted with the British common law systems, which rests on the so-called “judge-made decisional law” with a precedential authority of a prior court decisions.

This principle is at the core of the UK’s legal system, which treats similar legal cases/facts, generally, through similar decision-making procedures (so-called doctrine of judicial precedent, or stare decisis in legal “Latin” language).

Note: Civil law is sometimes referred to as a continental law; generally, the expression "civil law" is a translation of Latin jus civile, or "citizens' law", which was the late Roman imperial legal system, as opposed to the laws governing conquered peoples (jus gentium); hence, the Justinian Code's title Corpus Juris Civilis.

Thus, the key differences between a “codified legal system, i.e. the civil law” and the “precedential legal system, i.e. the common law” are in the distinguished features of legal codes, e.g. criminal, labour, environmental, etc. in the civil systems through several. These legal codifications generally avoid “factual specifics” relying on implementation of existing legal concept; the civil law codes’ articles deal in generalities (often very long and very detailed); hence being in contrast with statutory, common legal systems, which are of precedential nature. 

More in: https://en.wikipedia.org/wiki/Civil_law_(legal_system)

A historically prominent example of a civil-law is the Napoleonic Code (1804), named after French emperor; the code comprises three components: - the law of persons; - property law, and - commercial law.

French-German civil law background

Civil law courts in continental Europe generally decide cases using codified provisions on a case-by-case basis, without reference to other (often superior) judicial decisions. In actual practice, an increasing degree of precedent is creeping into civil law jurisprudence and into many nations’ highest courts.

While a typical French Supreme Court decision is short, concise and devoid of explanation or justification, in Germanic supreme courts they tend to be of more specific details and “verbose opinions”, supported by legal reasoning.

Germanic codes appeared over the 6^th and 7^th centuries to delineate the law implemented for Germanic privileged classes versus their Roman subjects and regulate those laws according to so-called “folk-right” or peoples’ law. Under feudal law, a number of private “custumals” (see note below) were compiled, first under the Norman empire (Très ancien coutumier, 1200–1245), then later on, to record the legal principles underpinning regional customs and court decisions.  Note: A “custumal” is a medieval English document, usually edited and composed over time, that stipulates the economic, political, and social customs of a manor or town.

Source: https://en.wikipedia.org/wiki/Civil_law_(legal_system)

The concept of codification was further developed during the 17^th and 18^th centuries as an expression of both natural law and the ideas of the Enlightenment. These area’s political ideals have been expressed by the concepts of democracy, protection of property and the rule of law. Those ideals required certainty of law, being both recorded and in a uniform presentation; hence, the mix of Roman law, customary and local laws gave way to final law codification concept.

Besides, the notion of a nation-state implied recorded law that would be applicable to that state’s functions.

Despite some resistance to codification process, the codification of European private/public laws moved quickly: generally, codifications were completed in Denmark by 1687, in Sweden by 1734, in Prussia by 1794, in France by 1804 and in Austria by 1811.

The French civil codes’ principles were adopted - with modifications- in Poland (Duchy of Warsaw/Congress Poland; Kodeks cywilny 1806-1825), Canton of Vaud in Switzerland (1819), the Netherlands (1838), Serbia (1844), Italy and Romania (1865), Portugal (1867) and Spain (1888). Germany in 1900 and Switzerland in 1912 adopted their own codifications; besides, the Swiss version was adopted in Turkey in 1926.

Civil law’s subdivisions

However, legal comparativists and economists promoting the legal origins theories generally subdivide civil law jurisdictions into three rather distinct “European groups”:    

- Napoleonic, with the following European states: France, Italy, the Netherlands, Spain, Belgium, Luxembourg, Portugal and Romania.

- Germanistic, adopted in Germany, Austria, Switzerland, Latvia, Estonia, Czech Republic, Russia, Lithuania, Croatia, Hungary, Serbia, Slovenia, Slovakia, Bosnia and Herzegovina, Greece, Ukraine and Turkey.

Thus, three Baltic States are within the “Germanistic” civil law sub-division. 

- Nordic, adopted in Denmark, Finland, Iceland, Norway, and Sweden; the Scandinavian systems are of a hybrid character since their background law is a mix of civil law and Scandinavian customary law and they have been partially codified.

Some systems of civil law in the European continent did not fully fit into the above typology. For example, Polish law developed as a mixture of French and German civil law during 19^th century. After the reunification of Poland in 1918, five legal systems were merged into one: French Napoleonic Code from the Duchy of Warsaw, German BGB from Western Poland, Austrian ABGB from Southern Poland, Russian law from Eastern Poland, and Hungarian law from Spisz and Orawa.

Reference sources:

- John Henry Merryman & Rogelio Pérez-Perdomo. The Civil Law Tradition: An Introduction to the Legal Systems of Europe and Latin America, 4th edn. Stanford University Press, 2018.

- Kischel, Uwe. Comparative Law. Trans. Andrew Hammel. Oxford: Oxford University Press, 2019.

- Glendon, Mary Ann, Paolo G. Carozza, & Colin B. Picker. Comparative Legal Traditions in a Nutshell, 4th edn. West Academic Publishing, 2015.