Private International Law

in the European Union

Area of Freedom, Security and Justice

* Judicial cooperation in civil matters having cross-border implications

* Jurisdiction of courts

* Proceedings before courts

* Judgments of courts

Before Amsterdam (1999)

• Stagnation of the Common Market in the 80-s

• „Immediate solution“: Schengen I

• early 90-s: Schengen II = international treaty (no competence of the EEC)

• Schengen II – conceptual solution outside EC and EU

Amsterdam Treaty (in force 1999)

• Inclusion of the „Schengen law“ into the EU 1st and 3rd pillars – new sources of legal regulation

• Area of Freedom, Security and Justice

• PIL: 1st (Community) pillar

FREEDOM

• Free movement of persons across internal borders

• European citizenship: more personal contacts between nationals of Member States

• More need for an effective PIL

SECURITY

• Criminal law: judicial cooperation • Police cooperation • European Arrest Warrant

JUSTICE (private law)

• Private international law – judicial cooperation in civil matters :– „division“ of the court jurisdiction between

states– Civil proceedings in Member States: easier

and more effective – Mutual recognition of judgments– Enforcement of judgments– Certain matters of family law

Unification of PIL in Europe

regional unification:relatively homogenous community of states with many common featurescloser contacts between states and their inhabitants

Function of PIL: coordination of national legal orders in the field of private law, when regulating relationships with a transborder element = consequence of differencies between national rules

Most efficient way: international unification of rules (substantive, conflict and procedural)

PIL in the EU

• EU competences in the field of Private International Law concern:

• 1) application of law by national courts (procedural matters)

• 2) applicable law

CONFLICT RULES UNIFICATION

• Universal international treaties - disadvantages:

• narrow scope of application • relatively small number of treaties• relatively small number of contracting parties

• Reaction of the EU:• first: treaties with a special regime (closed)• then: EU legislation (secondary law)

Competences of the EU in the field of PIL (TFEU) - 1

• CHAPTER 3 - JUDICIAL COOPERATION IN CIVIL MATTERS

• Article 81 - (ex Article 65 TEC) • 1. The Union shall develop judicial cooperation

in civil matters having cross-border implications,

• based on the principle of mutual recognition of judgments …. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.

• = EU competence

Competences of the EU in the field of PIL - 2

• 2. EU legislation:• ordinary legislative procedure, • particularly when necessary for the proper functioning of the

internal market, • (a) mutual recognition and enforcement of judgments; • (b) cross-border service of judicial documents; • (c) compatibility of applicable rules concerning conflict of laws

and of jurisdiction; • (d) taking of evidence; • (e) effective access to justice; • (f) proper functioning of civil proceedings - promoting the

compatibility of national rules on civil procedure; • (g) alternative methods of dispute settlement; • (h) training of the judiciary and judicial staff.

Competences of the EU in the field of PIL – 3 (Family law)

• 3. Measures concerning family law with cross-border implications

• shall be established by the Council (special legislative procedure -Council shall act unanimously after consulting the European Parliament).

• The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.

• The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.

Competences of the EU in the field of PIL - 4

• Subject of regulation of the EU PIL rules: Only intraunion relationships (between member states) or outside EU as well?

• (a) the mutual recognition and enforcement of judgments: i.p.

• (b) the cross-border service: i.p. • (c) the compatibility of conflict rules: e.o., the

compatibility of norms establishing the jurisdiction: i.p. • (d) taking of evidence: i.p. • (e) the compatibility of the rules on civil procedure

applicable in the Member States: e.o.

PIL in the EU

Objectives of the EU: — to promote economic and social progress and a high

level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers,

— to assert its identity on the international scene,— to strengthen the protection of the rights and

interests of the nationals of its Member States through the introduction of a citizenship of the Union,

— to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured,

— to maintain in full the acquis communautaire and build on it.

PIL in the EU

• - free movement of persons, of goods, anticipation of legal solutions etc.

• = values of public law, not PIL!• - civil, commercial and family law as private

law remain almost entirely national - no EU competence! = PIL: illogical

• Regulations concerning bilateral agreements: protection of EU citizen-s interests

PIL in the EU

• European unification of PIL: regional phenomenon with universal scope

• Reminder:• The function of PIL is the overcoming of differences between

national legal orders.• = coordination of national legal orders in the field of private law,

where legal relationships pass out of state boundaries (contain international element)

• Conflict of law norms - Efforts in the EU: since 1970s• - powers (competences) widely transferred to the EC(EU)

(Amsterdam treaty)• - internal treaties within the EU replaced by regulations• (now Art 81 of the TFEU)

EUROCENTRISM v. UNIVERSALITY

Purpose of EU competence: protection of interests of EU citizens• Difficulties of the rash (precipitating) transfer of the competences in PIL to the EU:• - no conceptual understanding of PIL as a complex branch of law • - inexistence of the general part of PIL • Warning:• - No conception, no "central" ideas for the E-codification of PIL, no metodology

elaborated • - no doctrine, absence of the "general part" of the PIL• Jamie, Kohler: Europaischen Kollisionsrecht: Eurocentrismus ohne Kodifikationsidee

(IPRax, 2006, Heft 6, p. 539).• consequence:• European PIL = a pile (heap) of legal rules - a pell-mell, no system

• EU PIL lacks the system. Consequently, the existence of national regulation and national doctrine of PIL is indispensable. In this way the EU law is not suitable to substitute national PIL.

• Result: EU PIL is just a pile of norms, not a system (like a pile of coal) (what is the system-?)

• National PIL regulations and the existence of national doctrines are thus essential (indispensable).

EUROPEAN REGULATION

• Two possible models of regulation:

• a) Uniform European regulation concerns only legal relationships containing an European element.

• Outside: national law of a member state or international treaties• Result: three levels of regulation:• 1. national• 2. international• 3. European

• b) Universal European regulation covering all relationships, including those of third countries

• Two levels of regulation only:• 1. national (no European rules)• 2. European• (3. international = European)

EUROPEAN REGULATION

• Conflict law: different - EU conflict only?• Take into account: practicality, foreseenability

(forethought), reasonableness • Any conflict, not only EU - erga omnes • = Instead of 3 levels: 2 levels• avoiding doble stage: first determining the system of

conflict norms and only after the conflict solution• Conflict norm contained in an international or EU rules

substitutes the national norm• Aim: unity in "handling with the law" (= applying the law -

conflict + substantive)• Relationship to the EU: jurisdiction of courts of member

states

EUROPEAN REGULATION

• Kreuzer:• limits of europeanisation of Union law:• - maximum of the universal (international)

regulation• - minimum of the European regional

regulation necessary for the reach of obligatory European aims

• = Conflict of laws: universal rules = typical, EU rules = exception

EUROPEAN REGULATION

• Result in the EU:

• Conflict of laws in the field of contracts: application of EU coflict norms to all relationships heard by national courts of EU member states

• EU law: as federal law

EU secondary lawSource: EU Regulation

• 2001/470/EC: Council Decision of 28 May 2001 establishing a European Judicial Network in civil and commercial matters

• Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters

• Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I)

• Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters

• Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (old Brussels II)

• Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings

EU secondary law• Council Regulation (EC) No 664/2009 of 7 July 2009 establishing a procedure for the negotiation and

conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and the law applicable to matters relating to maintenance obligations

• Council Regulation (EC) No 662/2009 of 7 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matters of contracts

• Regulation 593/2008 on the law applicable to contractual obligations (Rome I)

• Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000

• Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)

• Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure

• Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure

• Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims

• Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels II)

Fragmentation of the EU PIL

• EU unified large parts of PIL• result: even more fragmented European private

(international) law• some areas: conflict rules unified, other areas:

national conflict rules still apply• some areas: substantive law harmonized = no

need for conflict rules

• substantive law: Art. 114 TFEU• PIL: Art. 81 TFEU

Fragmentation

• Advantages of fragmented unification (incremental approach):

• need of unification recognised in certain areas only: where this is necessary for the functioning of the internal market

• Disadvantages:• unification measures = imprecise, inconsistent, show

lacunae• interpretation: European autonomous way• Are the gaps in a directive to be filled at a European

level or are they to be filled at a national level?

Fragmentation

• European Civil Code: solution? European Parliament in favour. Is it realistic?

• European PIL as a transitory stage?• The legal diversity should be resolved.• Question: whether the unification of PIL should be

maximum harmonisation of a particular area of the law or• whether conflict of law issues should be discarded

completely ending legal diversity as such.• = Uniform PIL is no more than a stagein a more far-

reaching unification process• = PIL is, indeed, no more than transitory law

Fragmentation

• Realistic view:• Unification of substantive civil law in the EU is not

foreseeable.• Unification of conflict rules is easier and more acceptable

for member countries.• = Resolving private international law issues is good

enough.• So far the unification of conflict rules has taken place

only in the field of contracts, torts and partially divorce. • What remains: inheritance law, labor law, family law

(except divorce) etc.