THE SCOPE OF CONFLICT-OF-LAW RULES

Prof. Cornelissen has presented a thorough analysis of the case-law of the CJEU in which it evolves the reach of what is laid down in Articles 11–16 of Regulation 883/2004. And he has shown the not easy relations between conflict-of-law rules in social security and those contained in Regulation Rome I. He has not left any significant lacuna which I could fill.

Therefore I shall concentrate my discussion paper on the recent and very contested case-law of the CJEU concerning the doctrinal dimension of Article 11 et seq. of Regulation 883/2004. I understand my short statement as a legal narrative of that small piece of legal history which the CJEU has written beginning with Bosmann and momentarily ending with Franzen. My reading and analysis of these judgments is somewhat different from what most authors have thought and written. I see the messages the Court wanted to send out less critically. And I believe that examples can be offered which show that the main idea behind Bosmann, strictly interpreted, is reasonable and need not endanger the application of provisions on conflict-of-laws. But I join the critics where in my opinion the Court had crossed the Rubicon which forms the boundaries needed for an unambiguous determination of the applicable law.

As Prof. Cornelissen has clearly documented, the CJEU in the beginning of its case-law on the provisions on conflicts of law followed a clear-cut approach insisting on the strict and mandatory character of the rules in question. The leading cases which established the scope and the reach of these provisions were Ten Holder and Luijten. The central message is that conflict-of-law rules ‘constitute a complete system of conflict rules the effect of which is to divest the legislature of each Member State of the power to determine the ambit and the conditions for the application of its national legislation so far as the persons who are subject thereto and the territory within which the provisions of national law take effect are concerned’. This is what we call the mandatory character of the rules contained in Article 11 et seq. which also encompasses the exclusivity rule according to which every person is subject to the legislation of a single Member State only.