Skip to main content Accessibility help
×
Home
Hostname: page-component-544b6db54f-5rlvm Total loading time: 0.208 Render date: 2021-10-16T13:37:30.079Z Has data issue: true Feature Flags: { "shouldUseShareProductTool": true, "shouldUseHypothesis": true, "isUnsiloEnabled": true, "metricsAbstractViews": false, "figures": true, "newCiteModal": false, "newCitedByModal": true, "newEcommerce": true, "newUsageEvents": true }

Chapter 5 - Law

from PART III - STANDARDS

Published online by Cambridge University Press:  30 March 2019

Get access

Summary

To ask whether the EU can legally implement any of the approaches discussed above mainly means to ask the questions of competence and procedure. This is not the place to give the nth overview of the development of EU private international law. The issue is simply: can the EU make general rules of private international law pursuant to the TEU and TFEU?

COMPETENCE IN THE AREA OF PRIVATE INTERNATIONAL LAW

There seems to be general agreement that Article 81(2)(c) TFEU, with its reference to “the rules applicable in the Member States concerning conflict of laws”, pertains to rules that determine the applicable law. As a measure adopted on the basis of this article is not required to be necessary for the proper functioning of the internal market anymore, it can also encompass civil matters (arguably) without relevance for the internal market, such as family law. This statement finds further support in Article 81(3) TFEU – and found it in Article 67 TEC – that sets forth special rules for the establishment of measures concerning family law. That a lack of unanimity in the Council would entail that an area of private international law in family matters remains for the member states to deal with, does not mean that the EU does not have the competence in that area as a matter of principle; it just means that the EU was not able to make use of it in a certain matter yet. In sum, the EU can tackle all areas of private international law as a subject matter.

COMPETENCE FOR UNIFIED PRIVATE INTERNATIONAL LAW

Some scholars called into question whether Article 65 TEC gave the EU the competence to make unified provisions of private international law. They mainly relied on the wording of said provision as it only pertained to “promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws”. As it is well known, EU legislative practice did not seem much concerned. It was not necessary, either, to read Article 65 TEC this narrowly.

Type
Chapter
Information
A Conceptual Analysis of European Private International Law
The General Issues in the EU and its Member States
, pp. 303 - 318
Publisher: Intersentia
Print publication year: 2019

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Send book to Kindle

To send this book to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle.

Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

  • Law
  • Felix M. Wilke
  • Book: A Conceptual Analysis of European Private International Law
  • Online publication: 30 March 2019
  • Chapter DOI: https://doi.org/10.1017/9781780688121.007
Available formats
×

Send book to Dropbox

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Dropbox.

  • Law
  • Felix M. Wilke
  • Book: A Conceptual Analysis of European Private International Law
  • Online publication: 30 March 2019
  • Chapter DOI: https://doi.org/10.1017/9781780688121.007
Available formats
×

Send book to Google Drive

To send content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about sending content to Google Drive.

  • Law
  • Felix M. Wilke
  • Book: A Conceptual Analysis of European Private International Law
  • Online publication: 30 March 2019
  • Chapter DOI: https://doi.org/10.1017/9781780688121.007
Available formats
×