THE STRUCTUREOF THE NEW EUROPEAN PRIVATELAW draft these sets of principles, it is argued, are legal scientistsand not politicians Therefore, they should leave those issues to politicians and should only concentrate on the general part of private bw which is supposed to be politically fairly neutral However, there is something of a paradox here: if sets of principles like the PEClare not bw themselves but merely an academ ic exercise which establishes the common core or which may at most be regarded as a draft or proposal made by some academ ics and conta ining what in their view would be good law for Europe, there is no reason why these committees should lim it themselves to the so-called non-political branches of the law. They could also draft restatements of labour aw and the like. Similarly, the European Civil Code project(Von Bar group)could also ddress the more political subjects. Or, rather, they should indeed include these branches of the ha w. Because, if these principles are also meant to be used as models, sources of inspiration et cetera for nationaland European legislators and courts, they now seem inadequate because they too much resemble the Liberal 19 th century Civil Codes, which were completely bare of any protective regulation. Or, to put it differently, they do not properly restate our private aw because many relevant branches of private laware missing 36 Another explanat ion which is frequently given for the focus on default rules, is that the common market manly needs rules on genera l contact law and that the basic rule of contract law(and indeed the basic prerequisite of a well functioning market) is freedom of contract 7. However, this neo-liberal reinvention of crude capitalism is severely contested by others. The market must be regulated, they argue,ar therefore we need a hard code now!3% Moreover, the differences in mandatory rule are the real obstacles to the proper functioning of the common market. Those are the rules that the parties cannot contract around. This leads to the suggestion that if the functioning of the Common Market must be enhanced it is not the general rules of non-mandatory contract law that should be harmonised or unified but rather regulation, ie the manda tory rules of general contract law and especally those of special contract aw. Those seem to be the true impediments to the Common Market not the non-mandatory rules of general contract law. With regard to the latter, from an economic perspective, at best transparency is needed Therefore, there is a strong case for a European Civil Code which mainly or even only contains mandatory rules. Such a code would look very different-for one thing, much more empty -from a traditional civil code. It would hardly contain any rules of general contract aw(no rules on perfomance, non-perfomance et cetera; to give an indication in the PECl only 6 rules are sa id to be mandatory 4o). However, if a European Civil Code should only conta in mandatory regulation would it still make 36. The Study Group on a European Ciil Code (Von Bar group) is currently drafting rules for the rotection of consumers in certain specific contracts In thi sense, for example, KLAUS PETER BERGER, Auf dem Wege zu einem europischen Gemeinrecht der Methode ZEuP 2001, p 4 See eg. THOMAS WILHELMSSON, Pivate Law in the EU: Harmonised or Fragmented Europeanisation?, TOERPL(2002) P. 77-94 ee especally UGo MATTEl, Hard Code Now!, Global Jurist Frontiers(2002): Vol 2: No 1. Article I See PECL, Introduction, pp xxixTHE STRUCTURE OF THE NEW EUROPEAN PRIVATE LAW 11 draft these sets of principles, it is argued, are `legal scientists' and not politicians. Therefore, they should leave those issues to politicians and should only concentra te on the general part of private law which is supposed to be politically fairly neutral. However, there is something of a paradox here: if sets of principles like the PECL are not law themselves but merely an academic exercise which establishes the common core or which may at most be regarded as a draft or proposal made by some academics and containing what in their view would be good law for Europe, there is no reason why these committees should limit themselves to the so-called non-political branches of the law. They could also draft restatements of labour law and the like. Similarly, the European Civil Code project (Von Bar group) could also address the more political subjects. Or, rather, they should indeed include these branches of the law. Because, if these principles are also meant to be used as models, sources of inspiration et cetera for national and European legislators and courts, they now seem inadequate because they too much resemble the Liberal 19th century Civil Codes, which were completely bare of any protective regulation. Or, to put it differently, they do not properly restate our private law because many relevant branches of private law are missing36 . Another explanation which is frequently given for the focus on default rules, is that the common market mainly needs rules on genera l contact law and that the basic rule of contract law (and indeed the basic prerequisite of a well functioning market) is freedom of contract37. However, this neo-liberal reinvention of crude capita lism is severely contested by others. The market must be regulated, they argue38 , and therefore we need a hard code now!39 Moreover, the differences in mandatory rules are the real obstacles to the proper functioning of the common market. Those are the rules that the parties cannot contract around. This leads to the suggestion that if the functioning of the Common Market must be enhanced it is not the general rules of non-mandatory contract law that should be harmonised or unified but rather regulation, i.e. the mandatory rules of general contract law and especially those of special contract law. Those seem to be the true impediments to the Common Market, not the non-mandatory rules of general contract law. With regard to the latter, from an economic perspective, at best transparency is needed. Therefore, there is a strong case for a European Civil Code which mainly or even only contains mandatory rules. Such a code would look very different - for one thing, much more empty - from a traditional civil code. It would hardly contain any rules of general contract law (no rules on performance, non-performance et cetera; to give an indication in the PECL only 6 rules are said to be mandatory40). However, if a European Civil Code should only contain mandatory regulation would it still make 36. The Study Group on a European Civil Code (Von Bar group) is currently drafting rules for the protection of consumers in certain specific contracts. 37. In this sense, for example, KLAUS PETER BERGER, Auf dem Wege zu einem europäischen Gemeinrecht der Methode , ZEuP 2001, p. 4 ff. 38. See e.g. THOMAS WILHELMSSON, Private Law in the EU: Harmonised or Fragmented Europeanisation? , 10 ERPL (2002), p. 77-94. 39. See especially UGO MATTEI, Hard Code Now! , Global Jurist Frontiers (2002): Vol. 2: No. 1, Article 1. 40. See PECL, Introduction, pp. xxix