Diplômé de la Faculté de Droit de Zagreb, Petar Sarcevic a fréquenté l'Institut Européen de l'Université d'Amsterdam et est Docteur d'Etat de l'Université de Mainz. Après avoir exercé pendant sept ans comme avocat à Subotica, sa ville natale en Croatie, il est devenu professeur de droit international privé à la Faculté de droit de Rijeka, puis Doyen et enfin Recteur de l'Université de Rijeka.

Parallèlement, il a été collaborateur scientifique à l'Institut de droit comparé à Lausanne, professeur-invité aux Facultés de droit en Autriche, Belgique, Etats-Unis, fondateur et directeur des cours de droit international commercial au Centre interuniversitaire de Dubrovnik.

En 1992, il a été nommé Ambassadeur de la République de Croatie aux Etats-Unis et, depuis 1996, Ambassadeur en Suisse et au Liechtenstein, charge qu'il vient de quitter à fin août 1999.

Il est impossible de citer les nombreux travaux scientifiques qu'il a publiés en croate, anglais, allemand, français et même chinois, ni d'énumérer les associations dont Petar Sarcevic fait partie. Parmi les principales figurent l'International Family Law Society qu'il préside, l'Institute of International Business Law and Practice de Paris, l'International Committee on Legal Aspects of a New International Economic Order de Londres, l'American Law Institute, l'Association américaine de droit international et la Schweizerische Vereinigung für Schiedgerichtbarkeit.

L'Ambassadeur Petar Sarcevic expose ici les aspects civils de l'Espace judiciaire européen.

It is a great honour for me to be able to speak to you today. I shall try to introduce you a very important and rather complicated topic, the European civil law, and I would here make a difference of de lege lata and de lege ferenda, better to say, how it is today and where are we developing civil law.

The Paneuropean Movement is a source of encouragement for States, which consider themselves European but are still not part of the European Union. The idea of uniting all European States into a body whose members should strengthen each other while still maintaining their individual identity and their special characteristics is particularly appealing to such States. Not only does it satisfy their needs, but also more important it appeases their fear of loosing their national identity, which in the case of my country has finally been achieved after struggle of 900 years.

There is no doubt that the unity of European States is a political idea of great importance, especially for guaranteeing the security of the continent and its economic development. In my opinion, however, unity can not be achieved in politics without cultivating an understanding an appreciation of other cultures, and I will speak today about legal culture.

Now that considerable progress has been made in the European Union in the harmonisation of national laws – for example in the field of commercial law, tax law, company and competition law – attention has finally been turned to the so called private spheres, i.e. family law and the law of succession as well as other areas of private law, such as civil law, the main body of private law governing legal regulations between individuals.

In 1989, the European Parliament called for the elaboration of a European Civil Court, and in 1994, it requested the European Commission to commence work on the project. At that time, it was not clear whether the Court would cover only international cases or would apply to all civil law relations, that is those at the national level as well. One of the great authorities on the contemporary comparative law, concedes that the European Commission has not yet shown much enthusiasm for the idea, although he confirms that the project of European Civil Court has proved to be a most challenging and stimulating idea to many legal scholars.

I might add, that the project has also won the support of some high government officials, e.g. in Germany, Netherlands and, as far as I understand it, also in France. One of the first studies in the topic was published by Dutch scholars in the book Towards a European Civil Court back in 1994 and because of the success of the book, in the meantime we have received the second revised enlarged edition, which shows directions in which civil law in Europe goes. The project has also won the support not only of the official community but also of the legal community in whole Europe.

However, we should actually see what is practically happening in this field. In addition to major studies, concrete proposals have already been made for unifying specific matters in certain areas of civil law, e.g. the principles of European contract law, proposed by the so called Lando Commission, under the leadership of a Danish Professor of commercial law.

The study group of some twenty European lawyers has succeeded in drafting a set of principles of European contract law that provides an excellent basis for future European legislation in the field of contract law. It was so successful that UNIDRA (United Nations Law Institute in Rome) decided to work in the same field and in the meantime has also completed its work in a set of contract principles intended for use by all States on the global scale.

On a personal note, I might mention that I attended the Budapest session of the Lando Commission and I was deeply impressed by the enthusiasm and the seriousness of the participants who discussed every major problem of comparative contract law in great detail. Without any doubt, the Lando Commission has set standards for study groups in other areas of civil law. As proof of this, a study group for torts has already been at work for several years. More recently, a study group has been established with the aim of drafting a European Civil Court. This ambitious project will use the work of the Lando Commission as a starting point.

To understand how difficult it is to work on such set of rules, I will try just to explain you the long discussions such a group has had just to decide about some of the very basic issues. I will never forget the long discussion between, for example, a French well known Professor who was the head of the Institute of comparative law in Paris, the common law Professor Bridge and, of course, the Scandinavian expert Professor Lando. The whole procedure was even more complicated because you had experts from all other major countries in Europe.

This brings us to the question whether it is necessary to codify the whole civil law in order to achieve a unity of European States as proposed by the Paneuropean Movement. In the European Union, private law has ceased to be the exclusive domain of sovereign national legislators. A modest degree of unification has already been achieved as a result of Community directives requiring the member States to adopt certain aspects of their national laws accordingly. The impact of such directives on national law is definitely not the same in all areas of private law. In regard to civil law, one can characterise the results as significant and positive in some matters. However the major problem of the directives approach is that it proceeds in pinpoint and partial fashion. Just to give you an example, we have for the law of contracts a directive, which has to promote consumer protection or another directive, which should guarantee the construction and proper function of the internal market. However, as you can imagine, many aspects of civil law are not even touched by the directives.

As a result, the matter of private law is partial in the sense that only certain areas as specific matters of private law are affected. The same is true in regard to civil law in Europe in the narrow sense. One of the major reasons for this is the fact that the European Community does not have general competence to legislate in matters of private law.

Legal history has shown that the countries of Western Europe are willing to accept and practice a law based on common principles at least in two different periods. In particular, Roman law experience of gradual but continual development for a thousand years after the dissolution of the Western Roman Empire, spreading all over Europe and become one of the most significant elements of Western European culture. The same can be said in regard to the jus comune that developed in continental Europe on the basis of a generalised form of Roman civil law.

Today, however, the circumstances are quite different, thus raising the question whether codification is the best way to unify civil law in Europe. The opinions of experts are divided on this issue. According to a Swiss Professor from Fribourg, the idea of European Civil Court is far from perfect. In his view, it is an idea of the 19^th century reinforcing the distinction between public law and private law and restricting the judiciary. At the same time, he regards it as a threat to culture diversity or at least the perception thereof.

Doubting that the unification of law is the only or even the main road to European common market, a Professor points out the dangers of unification through codification, which in his opinion tends to petrify the law by restricting the competence of the individual States to adopt the law to constantly changing socio-economic conditions. Also Lando is well aware of the potential danger of a codified civil law. He nevertheless believes that codification can be achieved in the field of contract law.

For us, this raises the question whether unification by codification is necessary or whether sufficient degree of unification can be achieved through other methods, like, e.g., through judiciary and legal education. Let me explain : one tends to say that uniformed law has already been achieved on other continents, especially in the United States. However, most uniformed law, as they called them, deals with fields and specific narrow questions, and even the uniformed Commercial Court, which thus covers important areas of commercial law, is not nearly as comprehensive as one might think.

Last week, we had a conference of the International Society of Family Law in Oxford, and I learned that in this moment there are some four uniformed laws in the USA in the field of family law. One of the uniformed laws is accepted in 2 States, another in 7 and the fourth in 16, but that is the situation. So, even speaking about unification of laws and uniformed laws, we still have actually a great deal of segmentation of the private law and the legal regulations in that particular country. As it has been said, the diversity in private law in the USA is still the norm and uniformity exception. In view of this diversity, it is legitimate to ask how the US legal system can function so satisfactorily. The answer is that the Americans share a common legal culture. In addition, they share a common language.

Let me try to explain you in few words what one understands under common legal culture in the USA. First of all, all leading schools are teaching their students not a specific set of laws in a particular State, but they are trying to give them actually broad concepts and institutions so as they are accepted in most of the States. Through that, they are learning them to think actually in much broader sense than usually one would approach particular national law and, of course, enable them to work in various jurisdictions much easier than those who are learning just a particular legal system in a particular State. This is one explanation. Of course, it goes much further, but this is one of the reasons why we can speak about a common legal culture in that country. Also the same is in regard to their textbooks. If you look at their textbooks, you will not have textbooks which are covering just one particular State or one legal jurisdiction. The textbooks are also trying to cover the whole fields as broadly as possible, teaching them actually the main principles and also principles, which are most broadly accepted.

This is what we, Europeans, had back in the days when Latin was the lingua franca and university students, Roman law and later jus comune were the categories, concepts and institutions derived from it, provided a general legal grammar, a framework within which the peculiar rules of any legal system could be discussed and interpreted. Accordingly, a legal literature existed that was used in all continental countries.

Today, much can be achieved in Europe through education, by special programmes, such as Erasmus programme provide opportunities for young lawyers to study in more than one country. This is only a beginning. We have a long way to go before our law schools will be teaching European civil law as well as the civil law of national systems. Therefore, in my opinion, the best and fastest way to achieve a European civil law is through selective codification and education in combination with a system of directives, which are already used in the European Union.

Again, I would like, just in few words, to explain it a bit further. We surely should aim one day to have a European Civil Court, but as I mentioned at the very beginning, it is not a simple task, it is a very difficult task, which will take us for quite a number of years. There a study groups, which work in the field of civil law, as I said, and particularly within civil law, in the field of contracts, in the field of torts and in some other fields. That is surely one of the ways in which we will achieve that particular aim.

However, the second one is : we have to improve the teaching techniques, our textbooks and other methods, which will help us, and, of course, the exchange of scholars and students, which will enable us to come closer in that regard.

Finally, what advice can be given to the many European States in transition ? Lobbies are active in an attempt to influence their future legal systems. As far as civil law is concerned, new national courts should be drafted with caution, always taking account of the uniformed categories, concepts and institutions already in existence. As the Swiss, and more recently, the Hungarians are doing, it is advisable to oblige national legislative drafting experts in these countries – and I am speaking about European States in transition – to guarantee a certain degree of uniformity and conformity of all new legislation with the unification already achieved in that field in the European Union. At least, this will keep the uniformity of national laws in balance with the European efforts of unification.