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  • Print publication year: 2019
  • Online publication date: December 2020

A View from the Trenches on EU and Member State Private International Law

Summary

INTRODUCTION

Johan Meeusen's fascinating contribution to this volume provides a bird's eye view on the interaction between EU and Member State Private International Law. This chapter will share observations from the present author's personal experience gained in advising the German Federal Ministry of Justice and for Consumer Protection. Since 2009, the author has been a member of the German Council for Private International Law, a group of Private International Law professors who assist the German Ministry in matters of legislation related to the conflict of laws. The Council is composed of two commissions. The first commission, currently chaired by the Council's president Heinz- Peter Mansel (University of Cologne), deals with international family and succession law. The Council's second commission is chaired by the present author and responsible for the Private International Law of obligations in a wide sense.

While the core task of the Council consists in giving advice on domestic legislation, a mission that was accomplished particularly in preparing the comprehensive reform of the German Introductory Act to the Civil Code (EGBGB) in 1986, this focus must not be misunderstood as national narrow-mindedness. As early as 1953, the founding president of the Council, Hans Dölle, had emphasised that ‘the increasing cooperation between the European nations requires an external representation of German conflicts scholars that may help in preparing an international harmonisation of the various systems of private international law’’. In the course of drafting its proposals for the Private International Law reform of 1986, the Council took numerous international sources into account, particularly the Rome Convention of 1980 and the Hague Conventions. The deliberations and the legislative proposals of the Council are always based on thorough, comparative expert opinions.

The growing Europeanisation of Private International Law in the recent decade poses additional challenges for Member State legislation: first, domestic Private International Law has to fill the gaps that remain in spite of the proliferation of EU rules. Many general principles of Private International Law have not yet been conclusively settled in EU legislation. Among the pervasive issues that are still largely left to domestic Member State laws are the treatment of dual and multiple nationality, aspects of public policy and mandatory rules not covered by the EU regulations, and questions concerning the application of Private International Law rules in court proceedings (see section 2).