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External Competence of the European Community in the Hague Conference on Private International Law: Community Harmonization and Worldwide Unification

Published online by Cambridge University Press:  21 May 2009

Charles T. Kotuby Jr
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The 1957 Treaty of Rome and its successor treaties have developed a Community legal system distinct from that of its constituent states, but ‘nevertheless intimately and organically tied to it in such a way that the mutual and constant respect for the respective jurisdictions of the Community and national bodies’ is essential for the proper attainment of Community aims. Although this sui generis Community structure has limited the sovereign rights of the Member States in ever-widening fields, it operates as severable yet dependant upon a backdrop of autonomous, self-contained and functionally independent civil codes of national private law. Because the integration envisaged by the original Treaty structure relies on market forces and is powered by economic drive, the ‘four freedoms’ guaranteed by this structure – namely, the free trans-border movement of goods, services, people and capital – remain attainable without the complete substantive uniformity of national laws. Still, with further integration encouraging increased interstate transactions, and few substantive matters falling exclusively within the generaljurisdiction of the Community, legal dilemmas referencing diverse national laws hinder the operation of the internal market. Rather than eroding the sensitive national bulwark of substantive private law, however, the Community has often chosen to enact common rules on the conflicts of law to determine the reach of Community measures and their intersection with national substantive laws.

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Articles
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Netherlands International Law Review , Volume 48 , Issue 1 , May 2001 , pp. 1 - 30
Copyright
Copyright © T.M.C. Asser Press 2001

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References

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3. Case 6/64 Costa v. ENEL [1964] ECR 585, 605–606.

4. The creation of a free trade area implies the abolition of tariff and custom duties – public law subjects traditionally handled by executive bodies. Likewise, the creation of the common market adds the free movement of labor resources to the Community competence, and the establishment of an economic union unifies sovereign state powers over fiscal policy – both traditional functions of administrative rules and government agencies. See D. Caruso, ‘The Missing View of the Cathedral: The Private Law Paradigm of European Legal Integration’, Harvard Jean Monnet Working Paper No. 9/96, <http://www.law.harvard.edu/programs/JeanMonnet/papers/96/9609ind.html>.

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15. EC Treaty Art. 28.

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21. EC Treaty Art. 95.

22. The relevant section 95(1) provides: ‘… [T]he following provisions shall apply for the achievement of the objectives set out in Article 14. The Council shall … adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.’

23. Case 106/77 Amministrazione delle Finanze Dello Stato v. Simmental SpA (II) [1978] ECR 629.

24. See, e.g., Council Regulation (EEC) No. 295/91 of 4 February 1991 establishing common rules for a denied-boarding compensation system in scheduled air transport, OJ 1991 L 36, p. 5; see also Basedow, loc. cit. n. 7, at p. 690.

25. For example, a person denied boarding on a return flight to a Member State, on a ticket purchased within that Member State and thus within the purview of the Rome Convention on the Law Applicable to Contractual Obligations (OJ 1998 C 27, p. 34), would have no recourse under Council Regulation (EEC) No. 293/91, as that regulation restricts its scope to flight outbound from a Member State. Thus, the conflict rule contained in the Community instrument overruled and thereby frustrated the application of the Rome Convention.

26. Treaty on European Union, 7 February 1992, OJ 1992 C 224, p. 1.

27. Basedow, loc. cit. n. 7, at p. 689.

28. EC Treaty Art. 61.

29. Art. 95(2) provides: ‘[Art. 95(1)] shall not apply to fiscal provisions, to those relating to the free movement of persons nor those relating to the rights and interests of employed persons.’

30. Basedow, loc. cit. n. 7, at p. 697.

31. Cf., J., Monar, ‘Justice and Home Affairs in the Treaty of Amsterdam: Reform at the Price of Fragmentation’, 23 E.L.Rev. (1998) p. 320 at p. 324.Google Scholar

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40. See generally, Case 22/70, supra n. 11; Joined Cases 3,4 and 6/76 Cornells Kramer et al. [1976] ECR 1279.

41. Opinion 1/76, supra n. 12, at para. 4.

42. Opinion 1/94, supra n. 39, at para. 86.

43. K., Lenaerts, ‘Les repercussions des competences externs des Etats members et la question de “preemption”’, in P., Demaret, ed., Relations exteheures de la Communauté européenne et marché intérieur: aspects juridiques et fonctionnels, College d’Europe, No. 45 (Brussels, Story-Scientia 1988) p. 38 at p. 42; cited in Tridimas and Eeckhout, op. cit. n. 32, at p. 155.Google Scholar

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46. Idem, at para 28.

47. Case 22/70, supra n. 11.

48. Idem, at para. 17.

49. EC Treaty Art. 10.

50. Case 22/70, supra n. 11, at paras. 18–22.

51. This ‘blocking effect’ has been specifically mentioned by the Court: ‘it is undeniable that, where harmonizing powers have been exercised, the harmonization measures thus adopted may limit, or even remove, the freedom of Member States to negotiate with non-member countries’ (Opinion 1/94, supra n. 39, at para. 88); see also, Tridimas and Eeckhout, op. cit. n. 35, at p. 165.

52. Opinion 2/91, supra n. 13, at para. 10.

53. Idem, at paras. 16–18.

54. Opinion 1/94, supra n. 39.

55. Idem, at para. 96.

56. J.T., Lang, ‘The ERTA Judgement and the Court’s Case-Law on Competence and Conflict’, 6 YEL (1987) p. 183 at p. 190.Google Scholar

57. Idem, at. 193.

58. Case 6/64, supra n. 3; Case 106/77, supra n. 23.

59. See, e.g., Joined Cases 95 and 96/79 Kefer and Delmelle [1980] ECR 103, 113; Cases 223/78 Grosoli [1979] ECR 2621, 2631–2, 2635, 2640; Case 177/78 Pigs and Bacon Commission v. McCarren [1979] ECR 2161, 2188.

60. This two prong test may be derived from the Court’s case law in Opinion 1/94, supra n. 39, and Opinion 2/91, supra n. 13. The latter case sets forth the principle that areas of ‘complete harmonization’ preclude Member States action, while the latter case addressed a situation where such harmonization did not prevail, and exclusivity could only be founded on the potential substantive overlap of the international and Community instruments.

61. Lang, op. cit. n. 56, at p. 190.

62. EC Treaty Art. 5, which requires the Community to take action ‘only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States’, and obliges that such action ‘shall not go beyond what is necessary to achieve the objectives of this Treaty’; see also, P., Craig and G., DeBurca, EU Law: Text, Cases and Materials, 2nd edn. (Oxford, Oxford University Press 1998) p. 124.Google Scholar

63. Tridimas and Eeckhout, op. cit. n. 35, at p. 172.

64. Opinion of the Council (EC) Legal Service, Doc. 6683/99 JUR 99 JUSTCIV 48, para. 15.

65. Basedow, loc. cit. n. 7, at p. 704.

66. See, supra, text accompanying n. 40.

67. See, supra, text accompanying n: 31.

68. Basedow, loc. cit. n. 7, at p. 703.

69. Idem, at p. 703; See also, Kennett, loc. cit. n. 32.

70. For example, Belgian merchants importing Lebanese fabric into Belgium, and subsequently introducing that fabric into France as goods of Community origin, could bypass French customs duties. The Court in this situation has held that ‘the assimilation to products originating within the Member States of goods in free circulation may only take full effect if these goods are subject to the same conditions of importation both with regard to customs and commercial considerations, irrespective of the state in which they were put into free circulation’. See, Case 41/76 Donckerwolcke [1976] ECR 1936.

71. Supra nn. 37–39.

72. Basedow, loc. cit. n. 7, at pp. 703–704.

73. Opinion 1/76, supra n. 12. For a recent instance of this narrow interpretation, see Opinion 1/94, supra n. 39, at paras. 85–86.

74. Emphasis added. Opinion of the Council (EC) Legal Service, supra n. 64, at paras. 16–19. See also, P., Beaumont, ‘A United Kingdom Perspective on the Proposed Hague Judgments Convention’, 24 Brooklyn JIL (1998) p. 75 at fh. 13.Google Scholar

75. Council Regulation (EC) on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, supra n. 14.

76. Council Regulation on the Service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters, supra n. 33.

77. Opinion 2/91, supra n. 13.

78. Supra n. 60.

79. EC Doc. CONF/2500/96 ADD 1,20.

80. EC Doc. SEC (96) 2004, 14.

81. The scope of Art. 65 could have been narrowed by stating that measures shall ‘consist of’ those acts listed under Art. 65(a). The Dutch Presidency supported this position, which was eventually rejected in favor of the broader approach. Doc. CONF/2500/96 ADD 1.

82. Art. 95(4) permits Member States to ‘maintain national provisions on grounds of major needs referred to in Art. 30’. These ‘major needs’ may include ‘public morality, public policy or public security, the protection of health and life of humans, animals or plants; the protection of national treasures …; or the protection of inductrial and commercial property’.

83. B., Von Hoffmann, ‘The Relevance of European Community Law’, in B., Von Hoffmann, ed., European Private International Law (Nijmegen, Ars Aequi Libri 1998) pp. 19–37; cited in Basedow, loc. cit. n. 7, at p. 687.Google Scholar

84. E.g., allowing courts to decline cases under forum non conveniens. See P., Beaumont, ‘European Court of Justice and Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters’, 48 ICLQ (1999) p. 223 at p. 228.Google Scholar

85. Opinion 2/91, supra n. 13, at paras. 15–21.

86. Basedow, loc. cit. n. 7, at p. 706.

87. Idem, at p. 706.

88. Supra n. 63.

89. E.C.Y., Lau, ‘Update on the Hague Convention on the Recognition and Enforcement of Foreign Judgments’, 6 Ann. Surv. Int’l. and Comp. L (2000) p. 13.Google Scholar

90. Supra n. 14.

91. F., Juenger, ‘Some Comments on European Procedural Harmonization’, 45 AJCL (1997) p. 931 at p. 933.Google Scholar

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93. Case 148/84 Deutsche Genossenschaftsbank v. SA Brasserie du Pêcheur [1985] ECJ CELEX LEXIS 3252.

94. Idem, at para. 17.

95. P., Hay, ‘The Case for Federalizing Rules of Civil Jurisdiction in the European Community’, 82 Mich. L Rev. (1984) p. 1323 at p. 1326.Google Scholar

96. Proposal for a Council Regulation (EC) on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, Explanatory Memorandum, Document 599PC0348, para. 1.1.

97. Supra n. 14.

98. Council Regulation (EC) on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, supra n. 14, Preamble para. 5.

99. Idem, at para. 7.

100. Beaumont, loc. cit. n. 74, at p. 228.

101. See, supra, text accompanying n. 52.

102. See, supra, text accompanying n. 86.

103. EC Treaty Art. 137.

104. Opinion 2/91, supra n. 13, at para. 18.

105. ILO Constitution, Art. 19(8).

106. Opinion of the Council (EC) Legal Service, supra n. 64, at para. 23.

107. Proposal for a Council Regulation (EC), supra n. 96, at Arts. 62 and 63.

108. Opinion of the Council (EC) Legal Service, supra n. 64, at para. 22.

109. “This Convention shall not affect any other international instrument containing provisions on matters governed by this convention to which a Contracting state is, or becomes, a party.’ Hague Convention of 2 October 1973 on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations, Art. 19.

110. Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters, Art. 37, adopted by the Special Commission on 30 October 1999.

111. Idem, at Art. 37, proposal 1. The full text of that proposal provides:

1. The Convention does not affect any international instrument to which Contracting States are or become Parties and which contains provisions on matters governed by the Convention, unless a contrary declaration is made by the States Parties to such instrument.

2. However, the Convention prevails over such instruments to the extent that they provide for fora not authorized under the provisions of Article 18 of the Convention.

3. The preceding paragraphs also apply to uniform laws based on special ties of a regional or other nature between the States concerned and to instruments adopted by a community of States.

112. Idem, at Art. 37, proposal 2. The full text of that proposal provides:

1. a) In this Article, the Brussels Convention [as amended], Regulation [ … ] of the European Union, and the Lugano Convention [as amended] shall be collectively referred to as ‘the European instruments’.

b) A State party to either of the above Conventions or a Member State of the European Union to which the above Regulation applies shall be collectively referred to as ‘European instrument States’.

2. Subject to the following provisions [of this Article], a European instrument State shall apply the European instruments, and not the Convention, whenever the European instruments are applicable according to their terms.

3. Except where the provisions of the European instruments on –

a) exclusive jurisdiction;

b) prorogation of jurisdiction;

c) lis pendens and related actions;

d) protective jurisdiction for consumers or employees; are applicable, a European instrument State shall apply Articles 3, 5 to 11, 14 to 16 and 18 of the Convention whenever the defendant is not domiciled in a European instrument State.

4. Even if the defendant is domiciled in a European instrument State, a court of such a State shall apply

a) Article 4 of the Convention whenever the court chosen is not in a European instrument State;

b) Article 12 of the Convention whenever the court with exclusive jurisdiction under that provision is not in a European instrument State; and

c) Articles 21 and 22 of this Convention whenever the court in whose favour the proceedings are stayed or jurisdiction is declined is not a court of a European instrument State.

Note: Another provision will be needed for other conventions and instruments.

113. Opinion of the Council (EC) Legal Service, supra n. 64, at para. 22.

114. Idem.

115. Case 34/73 Variola [1973] ECR 981.

116. ‘No procedure is permissible whereby the community nature of a legal rule is concealed from those subject to it’, idem, at para. 11; See also, Lang, op. cit. n. 56, at pp. 203–204.

117. Experience shows that many landmark decisions of the Court have been initiated by the procedure set forth under Art. 234, e.g., Case 26/62 Van Gend en Loos [1963] ECR 1, Case 6/64 Costa, supra n. 3, Case 106/77 Simmental, supra n. 23.

118. Lang, op. cit. n. 56, at p. 205.

119. Case 270/80 Polydor v. Harlequin [1982] ECR 329.

120. Basedow, loc. cit. n. 7, at p. 704.

121. See generally, I., MacLeod et al. , The External Relations of the European Communities (Oxford, Clarendon Press 1996) p. 142Google Scholar; N.A., Neuwahl, ‘Shared Powers or Combined Incompetence? More on Mixity’, 33 CMLR (1996) p. 667Google Scholar; N., Emiliou, “The Death of Exclusive Competence?’, 21 E.L.Rev. (1996) p. 310.Google Scholar

122. Statut de la Conférence de la Haye de Droit International Privé – Entré en vigueur le 15 juillet 1955.

123. Conclusions of the Special Commission of May 2000 on General Affairs and Policy of the Conference, Preliminary Document No. 10 of June 2000 for the attention of the Nineteenth Session, p. 23.

124. MacLeod, op. cit. n. 121, at p. 148.

125. Conclusions of the Special Commission of May 2000, supra n. 123, at p. 23.

126. Idem.

127. Case 6/64, supra n. 3.