Designing a common European business law

• 17/01/2022
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• European Business Code

Philippe Dupichot
Professor at the Sorbonne Law School (University of Paris 1)
https://geopolitique.eu/en/articles/designing-a-common-european-business-law

It is apparent for anyone who cares to look that, in the legal sphere, European integration is far from being complete 1. There are indeed multiple areas where the effort to craft a common body of European law must be improved, or even deepened, so that one day the rules governing the conduct of business are truly uniform within the single market or, at least, within the euro zone 2.

Aiming to test the relevance of this intuition, the Association Henri Capitant 3 set out to draw up an inventory of the acquis communautaire in business law. The resulting trilingual inventory, published under the title La construction européenne en droit des affaires : acquis et perspectives (Lextenso, 2016), provided a deliberately synthetic assessment of the European Union's contribution in twelve fundamental areas of business law: internal market law, e-commerce law, corporate law, secured transactions, enforcement procedures, insolvency law, banking law, insurance law, financial markets law, intellectual property law, labor law and tax law. Curiously, no one seems to have undertaken such a project before. Its main lesson is simple: insofar as ‘European‘ business law is concerned, everything remains to be built. The project has certainty given rise to stimulating criticism 4, but its diagnosis does not appear to have been seriously contested.

Hence, an (inevitable) shift in the analysis towards an initiative met with great support from lawyers hailing from various horizons: a project for a European Business Code 5. In a way, this project is but the latest instance in a long history, which clearly suggests that the crafting of a common commercial law contributes to the structuring of the business exchanges as well as of the political community itself. In the past, the fairs of the Middle Ages played an important role in fostering the emergence of a Europe of traders: we still find their traces in the law governing payment instruments, in the severity of the old insolvency procedures, and the importance of the pacta sunt servanda principle with respect to the trade of goods. Moreover, as Reiner Schulze pointed out in 2016, to take just a few examples: “[i]n Germany, the codification of commercial law during the 19th century largely preceded the birth of the Civil Code - by almost four decades in the case of the German Commercial Code. In Spain, the Commercial Code even came into being sixty years earlier. At the moment when these national markets were emerging, a Commercial Code was perceived as a compelling necessity, to facilitate trade and strengthen the economy. Traders and businesses needed a Commercial Code to be able to overcome the old borders within the new national “internal market” of the time.” 6

This article will strive to contribute to this project, by first setting forth the arguments in favor of a European Business Code (I), explaining the way in which the idea was received in political circles (II), and addressing some of the questions arising in connection to its practical implementation (III).

I - The reasons

A European Business Code would be extremely useful. Indeed, there are multiple arguments in favor of such a project, be they of a legal (A), economic (B) or political (C) nature.

A. Legal reasons

What can be called ‘European‘ business law clearly suffers from a major lack of accessibility and intelligibility. There is no better proof than the attempt to consult the “Eur-Lex” website 7 - whose very aim is to ensure that European Union law is “accessible” - a difficult and frustrating experience for anyone wishing to get a grasp of European business law. The “summaries of EU legislation”, intended for a non-specialized public, are “classified in 32 fields of action (sic!)”. 8 However, these fields of action are deeply fragmented, with more than half of them falling under the ambit of business law. In particular, the entry “Business” is all but useless, since it merely refers incompletely to other fields of action (“Internal market”, “Competition”, “Foreign trade”, “Taxation”, “Customs”). This situation is all the more regrettable since the accessibility and intelligibility of the law is, at least in the eyes of the French lawyer, an objective of constitutional value 9.

The European Union seems to be becoming aware of these shortcomings. On April 13, 2016, an inter-institutional agreement was concluded between the Commission, the Council and the European Parliament, under the title “Better Law Making”, which aims to improve the way the EU legislates and to ensure that EU legislation better serves citizens and businesses. It should make the EU legislative process more transparent, more open to stakeholder input and easier to understand. It will also help to assess the impact of EU legislation on small and medium-sized enterprises, local industry and the general public. The spirit of the agreement is also reflected in the European Commission's “Better Regulation” initiative, which aims, among other things, to enhance the quality of European legislation 10. However, these agreements and programs tend in particular to limit the number of new regulations and directives, rather than to order the existing ones in a logical manner; as such, they often highlight the principles of subsidiarity and proportionality 11.

Indeed, the perimeter and scope of the European legal integration have always depended on the distribution of competences pursuant to the Treaty on the Functioning of the European Union (TFEU). Thus, the acquis communautaire is naturally stronger in the area of competition law - which falls within the exclusive competence of the Union - than in areas where competence is shared and subject to the principles of subsidiarity and proportionality (the internal market, for example) or, a fortiori, in the area of taxation, which is still subject to the unanimity rule.

This fragmentation of competences has been a powerful brake on the adoption of uniform substantive rules; therefore, the project of a common business law achieved profoundly heterogeneous results in various areas: it is rich in some (the market, electronic commerce, industrial property, companies, etc.), but patchy in others (securities, enforcement, banking operations, taxation, etc.).

B. Economic reasons

More than sixty-three years after the signing of the Treaty of Rome, it becomes stranger every day that the 27 Member States trade with each other under the empire of fragmented business laws all while using, for 19 of them, a common currency.

The well-known term “common market” is ill-suited to describe a trading area in which there are still significant disparities between national business laws. To give just two well-known examples, corporate tax rates vary by a factor of three between Member States, and there is no denying that social legislation differs greatly. As a result, Member States sometimes compete with each other - rather than presenting a united front to other countries - and law shopping is encouraged.

But, understood in a broad sense, business law sets the rules of the commercial game. As President Giscard d'Estaing has rightly pointed out: “[b]usiness law is a powerful vector of economic, fiscal and social convergence. This convergence is essential to the consolidation of the Euro, which is today the backbone of the European construction. (...) this law, which governs the daily life of businesses, has not been sufficiently taken into account by European leaders”. 12 Indeed, these hundreds of thousands of small, medium and large companies are the driving forces of the European economies, and their interests underpin the need for a higher European wide convergence. They are the primary source of wealth creation, growth and employment and must evolve in a harmonized legal, tax and social environment, insofar as they operate within a unified monetary area, with free movement of goods, services, capital and labor.

For this reason, it is high time for the single currency to be coupled with a unified core of business law. The latter could help Member States gain valuable economic growth, and be a vector of wealth for European companies. It would greatly facilitate the development of intra-community trade by encouraging small and medium-sized businesses to trade across borders with greater security and confidence. It bears noting that, compared to trade between federated states of the United States of America, trade between Member States of the Union is still very weak 13.

A quick look around suggests indeed that there is hardly any large trading area without a corresponding uniform legal framework. In this respect, the European Union is unfortunately far from being a leader in this respect. Linguistic and cultural barriers do not explain everything; so, a unified base of business law would greatly contribute to improving the “functioning of the internal market” within the meaning of article 26 TFEU.

C. Political reasons

Europe is in the grip of doubt these days: shaken by the Brexit, shaken by migration and by the health crisis, it is the victim of the economic awakening of China and is bowing to the technological superiority of the US. The role of the Big Five in the global economy both paralyzes and fascinates it... Unless one nurtures an anti-European feeling for other reasons, it is apparent that the European project badly needs a new source of meaning and inspiration.

Within the borders of the EU, it is important to show that Europe is interested in its entrepreneurs and businesses. Indeed, with the notable exception of the rules concerning competition, electronic commerce and industrial property, the European integration of business law has not paid sufficient attention to the daily practice of EU traders and businesses (VSEs and SMEs) and, more generally, of those who are neither bankers, nor insurers, nor consumers 14. If the latter are indeed fundamental, their recurrence and omnipresence on EU's legislative agenda dangerously lends credence to the image - dear to Europhobes and the extremes - of a legal system that is far removed from the concerns of very small and medium-sized businesses, and therefore more “financial” than truly “commercial”.

It is most welcome in this respect that the European Commissioner for the Internal Market, Thierry Breton, seems to aim to reorient EU policy. He stated in a major daily newspaper 15 that “industrial policy in Europe can no longer be conducted with the sole aim of reducing prices for the consumer. Our businesses, which are the basis of our jobs, our progress and our sovereignty, must be put back at the heart of our policies (...) there will be a before and an after to the von der Leyen Commission”. It is therefore important to put the EU back at the service of citizens and entrepreneurs, so that it is once again seen as an area of freedom, and not of constraint.

Outside of the European borders, the law of the Union must tend to become a model, a source of inspiration for foreign legislators, of reflection for lawyers of all countries, and of legal predictability for investors. Only on this condition will the EU and its legal system shine and wield worldwide influence. This is undoubtedly a civilizational issue: a law is the incarnation of concepts and values that are the product of a culture and a way of life. Because there is a European civilization, there must be an accessible and intelligible European business law. And yet, although the EU was built through law and based on law, it is hardly a beacon of European civilization in the field of economic exchanges.

II - Reception

As a simple initiative of a learned society, the project of a European Business Code appeared to be purely utopian when it was launched 16. This is no longer the case today: the idea that Europe needs an integrated and codified business law is spreading further with each day. This idea is increasingly accepted in political circles, not only within the Franco-German couple (A) but also beyond (B).

A. The Franco-German couple

Rooted in a French initiative, the objective of unifying European business law was met favorably within the Franco-German couple, whose importance for the future of Europe cannot be questioned. In his speech on Europe delivered at the Sorbonne on September 26, 2017, President Emmanuel Macron aimed to rely on this Franco-German engine to call for the integration of business law: “[t]o those who say it is too hard, I say: think of Robert Schuman, five years after a war whose victims' blood was barely dry. On all the subjects I have mentioned, we can give a decisive and concrete Franco-German impulse (...). Why not set the goal of fully integrating our markets by 2024, applying the same rules to our companies, from business law to insolvency law?” The statement was important: the impetus will be Franco-German or there will be none 17.

Then, on January 22, 2018, the Bundestag and the French National Assembly adopted a joint resolution advocating for “the completion of a Franco-German economic area with harmonized rules, in particular with regard to corporate law and the supervision of corporate insolvencies.” More recently, a parliamentary report of November 29, 2018, written by deputies Christophe Naegelen and Sylvain Waserman, on the Future of the Eurozone, took up - among four proposals to strengthen the Eurozone - “The European Business Code project” carried by the Henri Capitant Association 18, recommending that it be given a Franco-German basis.

In the wake of this report, an important “Franco-German Treaty on Franco-German Cooperation and Integration” was signed in Aix-la-Chapelle on January 22, 2019, which reserves an important role to the integration of business law. Article 20 § 1 states: “(1) The two States shall deepen the integration of their economies in order to establish a Franco-German economic area with common rules. The Franco-German Economic and Financial Council shall promote the bilateral harmonization of their legislation, in particular in the field of business law, and shall regularly coordinate economic policies between the French Republic and the Federal Republic of Germany in order to promote the convergence between the two States and improve the competitiveness of their economies.” This Treaty was ratified by Law No. 2019-1066 of October 21, 2019 and replaces the Élysée Treaty of January 22, 1963.

The new Franco-German parliamentary assembly, composed of 50 French and 50 German deputies, adopted at its third meeting on February 6, 2020, a “Deliberation establishing a working group on the harmonization of French and German business and bankruptcy law”. It has also “set itself the concrete objective of drawing up a legally binding Franco-German business code”, which is a considerable achievement.

A few weeks after the adoption of the Treaty of Aix-la-Chapelle, a decree dated February 13, 2019 issued by the Prime Minister Édouard Philippe entrusted Valérie Gomez Bassac, a French academic and member of Parliament, with a “temporary parliamentary mission whose purpose is to develop a European Business Code.” After nearly 46 hearings in France and 32 conducted in five major European capitals (Berlin, Brussels, Budapest, Dublin, Rome), Valérie Gomez-Bassac delivered her report on July 8, 2019. In light of the research conducted by the Henri Capitant Association, she notes that “Brexit, as well as the renewal in the European Parliament and in the European Commission offer ample opportunity to move quickly towards the creation of a European Business Code that is legible, demanding and adapted to all types of businesses, and that reflects a real expectation of economic actors throughout Europe; (...) Europe must be an opportunity for all, and the European market cannot be an opportunity only for large groups. To foster the European free trade, everyone must be able to develop their business, regardless of their size.” 19.

B. Beyond the Franco-German couple

The current reflections described above are fortunately spreading beyond the Franco-German couple.

In its White Paper on the future of Europe, published on March 1, 2017, the Juncker Commission identified, by 2025, a 3rd scenario among 5 possible scenarios (entitled “Those who want more do more”), consisting of “a group of countries working together and agreeing on a common ‘business law code‘ unifying corporate law, commercial law and related areas, which helps companies of all sizes to operate easily across borders.” And the Commission recalls that it is open to “Member States who wish to do so to move forward together in specific areas” around “coalitions of the willing” agreeing on specific legal modalities of cooperation. This refers primarily to the possibility of resorting to the “enhanced cooperation” mechanism, which has been made more flexible by the Lisbon Treaty 20. Involving the participation of at least nine Member States, enhanced cooperation can be instituted in all areas of European action, provided that it does not concern an exclusive competence of the EU - as in the case of competition law -, that it makes it possible to strengthen the process of integration of the Union and that it is authorized by the Council of Ministers.

But one could also think of an adoption at the level of the EU itself, at the request of the European Council and therefore of the governments, even if it means facing the unanimity rule. In this respect, it would be mortifying for the Union if the Franco-German impetus did not serve the objective of integrating the business laws of all the Member States that so desire. France and Germany are only strong when they open a new path, open to other countries, without the risk of appearing to their neighbors as a closed club of two members. It is therefore most welcome that the aforementioned deliberation of the Franco-German Assembly of February 6, 2020 mentions, beyond the concrete ambition of drafting a Franco-German business code, “the objective of codifying the entire European business law” in the longer term. In any event, the coming years will be decisive.

III - Drafting

How should such a European Business Code be drafted? It will be up to the governments of the Member States of the Union to decide, if necessary, in favor of such a project and, if so, to decide on the drafting process 21. We will therefore limit ourselves here to presenting the proposal for a European Code prepared by the Association Henri Capitant in partnership with the Fondation pour le droit continental. The elaboration of this project within the Association Henri Capitant is based on codification (A) and is part of a vision 22 of what could be a more integrated European business law (B).

A. Codification

The choice of codification is due to its intrinsic qualities, described in depth by Michel Grimaldi, who notes that continental law - unlike the common law - is not part of a culture of litigation, and its codification greatly facilitates both material and intellectual accessibility: “material, because it is easier to grasp when it is contained in a statute or in a code rather than when it must be extracted from a set of decisions; intellectual, because it is easier to understand when it is formulated in general and abstract terms rather than when it is wrapped up in the facts of a particular case” 23.

The codification exercise relies on the drafting of a predictable law, which can be known without any court involvement, and whose application is therefore unexpensive, because it prevents litigation. It is the guarantee of an accessible and intelligible law, responding to a democratic imperative. And it is the vector of a balanced law, that takes into consideration economic efficiency, but knowing how to introduce a reasoned dimension of protection of the weak parties.

It is sometimes said that codification is a “French specificity” that should not be brought to the level of the Union (at the risk of awakening the demon of Napoleonic conquests, which exported the Civil Code by force of bayonets?). This criticism is surprising, to say the least.

On the one hand, the vast majority of Member States belong to the civil law tradition. Indeed, since the departure of the UK, only three out of 27 belong to the common law tradition: Cyprus, Ireland and Malta, which have only 6.5 million inhabitants out of a post-Brexit total of 446 million 24. There can therefore be no serious concern that the prospect of adopting a Business Law Code within the Union would disregard “the different legal systems and traditions of the Member States” (Article 67 TFEU). On the contrary, codification could be a marker of a European legal culture, of a way of thinking and writing the law, to give it a rational structure and systematicity that it badly lacks.

On the other hand, the advantages of a codification of business law are so great that the world's leading economic power, albeit a common law power, has codified its commercial law via the UCC: while an eminent French comparatist has doubted that this is a code in the strict sense 25, a US jurist readily sees in it the triumph of a Romanist technique of codification, inspired by France, the virtues of which he doesn't fail to emphasize! 26

This is to say that it is permissible to dream of the adoption, one day, of a blue and gold Code whose aim will be to increase the legibility of EU law and to give it a new meaning it in the eyes of the EU businesses.

B. The vision

The vision of the Association Henri Capitant is that of a Code, i.e. “all the legal provisions relating to a special subject or collected by the legislator” 27 or, according to the French Legal Vocabulary, “the coherent set of rules governing a subject (...) (generally according to a systematic plan)”. 28 The project might appear at first sight to be impossible to carry out, or to be too time-consuming; it must be, however, a general direction, an objective to be reached, which should inspire the European legislator in its quest towards “Better Lawmaking”.

The choice is that of embracing the perspective of a European entrepreneur wishing to trade in the EU, in a defragmented internal market, with other businesses. Its scope covers general commercial law, 29 market law, e-commerce law, corporate law, secured transactions, enforcement procedures, insolvency law, banking law, insurance law, financial market law, intellectual property law, labor law and tax law.

The scope of the project might evolve depending to the constraints and priorities of the European legislator 30, provided that an overall coherence is preserved.

While the nature and content of the work on the project will inevitably differ according to the subject matter, given the heterogeneity of the acquis communautaire and the distribution of competences between the Member States and the Union, it is apparent that the areas that have been neglected by the EU up to now (secured transactions, insurance contracts, etc.) would not require simply a rational consolidation, but a truly creative endeavor. The effort of codification-compilation is certainly useful to respond to the lack of accessibility of the law, but it would not be sufficient for the emergence of a truly European market. In particular, it will be necessary to propose new contractual instruments that meet the needs of EU businesses: the need for an adapted corporate form could be met by a new European Simplified Corporation (ESC) 31; financing needs could be met by a new type of European loan, which could be secured through a Euro-mortgage, a Euro-pledge or a Euro-guarantee; insurance needs could be met through a European insurance instruments, etc.

The work of the Association aims at the elaboration of uniform substantive rules (of “regulations” and not of simple “directives”) likely to wield an influence even beyond the Euro zone. Ideally, such a Code would be fully general, completely replacing national laws and interpreted uniformly by the ECJ 32. In practice, the form will differ from subject to subject. In the area of anti-competitive practices, and since this is an exclusive competence of the EU, it will be particularly important for the Code to replace national laws, in order to remedy the current overlap of legal regimes. In banking, corporate or secured transactions law, on the other hand, the Codes will not aim to suppress national laws but rather to enrich them with new instruments. It will therefore be necessary, on a case-by-case basis, to consider this articulation of legal systems in order to limit their overlap: having recourse to certain guiding principles (derived from national laws and/or the acquis without being substituted for them) could then be a median and realistic path. The permeability of the various provisions of a European Code to contractual freedom will also vary. The actors will often have to accept the imperatives of competition law or tax law. But they will have the freedom to choose or not to choose a new European instrument and thus, if necessary, to put these new tools in competition with those provided for by national law: the ESC will thus not drive out the SAS, the SARL, the GmbH or the BV, but it may overshadow them.

***

The adventure will readily seem impossible. But did Seneca not say that “it is not because things are difficult that we do not dare, but because we do not dare that they are difficult”? France and the States that share the genius of codification have a responsibility to give this precious gift to Europe, to help it triumph over the shocks that are shaking it. Designing a common European business law and ordering it in a coherent and systematic manner would, finally, give a new meaning and direction to the EU as a whole.

Notes

1 This article is a revised version of the author's contribution in french to the Mélanges en l'honneur du Professeur Michel Grimaldi, Lextenso, p 373 and following.

2 Professor at the Sorbonne Law School (Paris 1 Panthéon-Sorbonne University), President of the Association Henri Capitant des amis de la culture juridique française.

3 Editor's note: the Association Henri Capitant is a scholarly organization aiming to contribute to the promotion and modernization of the legal systems falling in the civil law tradition. It was established in 1935 by a group of legal scholars from several francophone countries, and now counts more than 55 countries around the world, making it the leading international network of legal scholars from civil law countries. The Association is also the editor of the first international and bi-lingual journal devoted to civil law legal systems (www.henricapitantlawreview.org).

4 See, in particular, L. d'Avout, ‘L'étonnante initiative en faveur d'un code européen des affaires‘, JCP G, 2019, 559; L. d'Avout, ‘La France et l'Allemagne en quête d'un droit des affaires commun‘, JCP E, 2019, 1276.

5 See, P. Dupichot, ‘Du Brexit au Code européen des affaires‘, Dr et patr., 2016, n° 262; ‘Vom Brexit zum Europäischen Wirtschaftsgesetzbuch‘, ZEuP, 2017, n° 2, p. 245 et s.; L. Bélanger, ‘Un code européen des affaires, le droit au cœur de la consolidation de l'Europe‘, JCP, 2017, 790.

6 See, R. Schulze, ‘Initiative pour un code européen des affaires‘, speech at the CNB, 1 July 2016.

7 https://eur-lex.europa.eu/homepage.html.

8 https://eur-lex.europa.eu/browse/summaries.html.

9 See, Cons. const., 16 Dec. 1999, DC, n° 99-421 - Cons. const., 27 July 2006, DC n° 2006-540.

10 https://ec.europa.eu/info/law/law-making-process/planning-and-proposing-law/better-regulation-why-and-how_en.

11 See for example, the communication of the Junker's Commission, ‘Améliorer la réglementation : de meilleurs résultats pour une Union plus forte‘, 14 septembre 2016, COM/2016/0615.

12 See, V. Giscard d'Estaing, foreword to La construction européenne en droit des affaires : acquis et perspectives, Lextenso, 2016.

13 See, K. Head and T. Mayer (2002), ‘Non-Europe: The Magnitude and Causes of Market Fragmentation in the EU‘, Review of World Economics, 2(136): 285-314

14 However, the following useful achievements should be mentioned: European Economic Interest Grouping, European Company, European Enforcement Order, European Attachment of Bank Accounts, European Trademark, European Designs, Financial Guarantee Law, VAT base, etc.

15 See, Thierry Breton, Le Figaro, 2 March 2020, https://www.lefigaro.fr/conjoncture/thierry-breton-l-ue-ne-doit-plus-avoir-pour-seul-but-de-reduire-les-prix-pour-le-consommateur-20200302.

16 The work leading up to the inventory was conducted from mid-2015 to October 2016; work on a draft Code was initiated in March 2017.

17 See, R. Krüse and F. Riester, ‘Pour un code européen des affaires ‘, Le Monde, 5 May 2018.

18 See, Ch. Naegelen and S. Waserman, ‘Rapport d'information AN‘, 29 Nov. 2018, n° 1453, ‘L'avenir de la zone euro‘, p. 85 to 91.

19 See, V. Gomez Bassac, ‘Rapport sur l'élaboration d'un Code européen des affaires‘, 8 juillet 2019, and the related press realease.

20 Art. 20 TEU and art. 326 and f. TFEU.

21 Even with regard to the draft Franco-German code, the principle of which has been noted (see above, no. 14), the precise modalities for the organization of the work of the “Harmonization of French and German Business and Bankruptcy Law” working group are, to date, unknown.

22 See M. Lehmann, ‘Braucht Europa ein Handelsgesetzbuch?‘, ZHR, 181 (2017) 9-42; M. Lehmann, ‘ Das Europäische Wirtschaftsgesetzbuch - Eine Projektskizze‘, GPR 6/2017, p. 262 et s.; M. Lehmann, J. Schmidt et R. Schulze, ‘Das Projekt eines Europäischen Wirtschaftsgesetzbuchs‘, Zeitschricht für Rechtspolitik, 2017, n° 8, p. 225 et seq.; Le projet d'un Code européen des affaires, 7es Journées franco-allemandes de l'Association Henri Capitant, vol. 34, ed. SLC, 2020.

23 See, M. Grimaldi, ‘Le droit continental face à la mondialisation‘, Études à la mémoire de Bruno Oppetit, Litec, 2009, p. 293 et seq.

24 See previously, on this question, the reflections of M. Bussani, ‘Faut-il se passer du common law (européen)? Réflexions sur un Code civil continental dans le droit mondialisé‘, RIDC, Jan. 2010, p. 7 et seq. Comp. the figures of the University of Ottawa study in Étude du Conseil d'État, ‘L'influence internationale du droit français‘, La Documentation française, 2001, p. 21 and 22: civil law was then, in its pure state, the system of almost 24% of the world's population, while only 6.5% of this population lived under a pure common law system.

25 See, D. Tallon, ‘Le Code de commerce uniforme des États-Unis‘, RIDC, 1971, p. 617 et seq., according to whom the UCC “is not a code and even less a Commercial Code” because, rather than a systematic overhaul of the entire law or a rebirth of commercial law in a common law country, it would reflect an “abdication of lawyers before practice” and a putting together of a series of often pre-existing uniform acts.

26 See, William D. Hawkland, ‘The Uniform Commercial Code and the Civil Codes‘, Louisiana Law Review, volume 56, Number 1, Fall 1995. Comp. M. Franklin, ‘On the legal method of the uniform commercial code‘, 16 Law & Contemp. Prob., 330, 333 (1951), citing the work of the Julliot de la Morandière Commission.

27 See, Dictionnaire d'E. Littré, 3rd entry.

28 See, Vocabulaire Juridique de l'Association Henri Capitant, ed. PUF, Quadrige, 13th éd., 2020, See entry ‘Code‘.

29 The sales contract has not yet been incorporated into the scope of the project.

30 In particular, the inclusion of social and tax law will not fail to provoke passionate debate. It is nonetheless fundamental to the advent of a single market.

31 Name chosen by the corporate law working group (see our editorial BJS, 118q8, June 2018, p 1), in preference to ‘European SAS‘.

32 See the penetrating remarks of R. Cabrillac, ‘Un Code européen des affaires, une chance pour la construction européenne‘, D., June 13, 2019, No. 15, advocating for a non-optional Code, thus substituting for national laws and whose content could be subject to a preliminary reference for interpretation before the ECJ (art. 267 TFEU).