EU Law-Making 2.0: The Prospect of a European Business Code

The Commission's 2017 White Paper on the Future of Europe suggested as one policy option the codification of EU business law. This article demonstrates the necessity and feasibility of such a code. It posits that a uniform business codification is indispensable to complete the Internal Market Agenda. A closer examination reveals that tighter fiscal coordination alone is insufficient to supplement a monetary union with the necessary economic integration. A legal level playing field is necessary to overcome the large disparities in competitiveness between the Member States. Evidence from comparative law and legal history shows that the harmonization of business law comes before the harmonization of civil law, and that one does not necessarily result in the other. The failure of past codification efforts in the area of civil law thus do not stand in the way of more uniform business law. The article critically evaluates the Union's approach to law-making, in particular its fragmented, technocratic and highly complex style. Initiatives such as the regulatory fitness and performance (REFIT) programme and Better-Law Making are insufficient to remedy the shortcomings of EU legislation. What is needed is a clear structure, an intelligible style and a more principle-based approach to regulation. Counterarguments against codification, such as the elimination of regulatory competition, the dangers of more centralization or its merely formal nature, are discussed. A legal basis for business law unification is identified, and the compatibility with the principles of subsidiarity and conferral ensured. Finally, the legal form and scope, the content as well as the structure of a European Business Code and its application in court are outlined.