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Harmonising European Private International Law: A Replay of Hannibal's Crossing of the Alps?

Published online by Cambridge University Press:  28 February 2019

Extract

In 218 BC, the Carthaginian general Hannibal (247-182) achieved a most extraordinary feat: he crossed both the Pyrenees Mountains and the Alps with an army of about 38.000 soldiers, 8.000 Cavalry and 37 elephants, aiming to win the Second Punic War by a bold invasion of Italy before the Romans were prepared. Even if his attempts to defeat the Roman legions failed in the end, common lore stills tells the story of the elephants crossing the Col du Mont Genevre in deep snow, setting thus an example of a near impossible achievement for generations to come.

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Copyright © 2006 by the International Association of Law Libraries 

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References

1 But also Polybius 3.50-55 and Livy 21.32.6-37.6.Google Scholar

3 Katharina Boele-Woelki, Unification and Harmonization of Private International Law in Europe, in Private International Law in the International Arena, From National Conflict Rules Towards Harmonization and Unification, Liber amicorum Kurt Siehr, TMC Asser Press 2000, p. 61.Google Scholar

4 The following explanations have been taken from the Green Paper on the conversion of the Rome Convention of1980 on the law applicable to contractual obligations into a Community instrument and its modernisation, COM (2002) 654 final, p. 8.Google Scholar

5 Bernard DUTOIT, Le droit international privé ou le respect de l'altérité, Coll. Quid Juris?, Schulthess 2006, p. 6.Google Scholar

6 Art. 5.1 Bruxelles I Regulation. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 12, 16.1.2001, p. 123.Google Scholar

7 Articles 3 and 4 of the Rome Conflicts of Law Convention.Google Scholar

8 Bernard Dutoit, op. cit., Coll. Quid Juris?, Schulthess 2006, p. 7.: a bilateral conflicts rule can lead to applying either the lex fori or a foreign law.Google Scholar

9 Gian Paolo Romano, Le retrait de la règle bilatérale classique face à l'intervention d'une autorité, to be published in RCDIP 2006.Google Scholar

11 A sister treaty was signed with the European Free Trade Association: the Lugano Convention, of the 16th September 1988, OJ 1988, L 319 p. 9;Google Scholar

12 1980 Rome Convention on the law applicable to contractual obligations (consolidated version), Official Journal C 027, 26/01/1998 p. 0034 – 0046. – Richard Plender, The European Contracts Convention, The Rome Convention on the Choice of Law for Contracts, Sweet and Maxwell 1991.Google Scholar

13 See the Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations (“Rome II”), COM (2003) 427 final. At http://europa.eu.int/eur-lex/en/com/pdf/2003/com2003_0427en01.pdf Google Scholar

14 See in particular: 95/401/JHA: Joint Action of 25 September 1995 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on measures implementing Article K.l of the Treaty (OJ L 238, 6.10.1995, p. 1–1) – 2001/470/EC: Council Decision of 28 May 2001 establishing a European Judicial Network in civil and commercial matters, (OJ L 174, 27.6.2001, p. 2531). – Christian Kohler, Interrogations sur les sources du droit international privé européen après le traité d'Amsterdam, RCDIP 1999, p. 1 et ss. – Jürgen Basedow, The Communitarization of the Conflict of Laws under the Treaty of Amsterdam, Common Market Law Review 2000, pp. 687.Google Scholar

15 A. Fuchs, H. Muir-Watt, E. Pataut (sous la dir. de), Les conflits de lois et le système juridique communautaire, Dalloz, col. Thèmes et commentaires, 2004.Google Scholar

16 This situation should be distinguished from the coexistence in certain fields of international law rules applied in each Member State and European law rules laid down by the European Community. See on this question, Jean- Sylvestre Berge, L'enchevětrement des normes internationales et européennes dans l'ordre juridique communautaire: contribution à l'étude du phénomène de régionalisation du droit, LPA, 5 octobre 2004, n° 199, p. 32. – Droit international et droit communautaire – perspectives actuelles, Colloque Bordeaux 1999, éd. Pédone 2000. Our purpose here is to show how the use by the European Community of various legal norms in the same field of law can be confusing.Google Scholar

17 David Lefranc, La spécificité des règles de conflit de lois en droit communautaire dérivé (aspects de droit privé), Rev. crit. DIP, 2005, p. 412, 415.Google Scholar

18 M. Wilderspin, A.-M. Rouchaud-Joët, La compétence externe de la Communauté européenne en droit international privé, RCDIP 2004, p. 1, spec. p. 27 et suiv.Google Scholar

19 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, OJ L 160, 30.6.2000, p. 3752. – 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, Official Journal L 143, 30/04/2004 P. 0015 – 0039 – Commission Regulation (EC) No 1869/2005 of 16 November 2005 replacing the Annexes to Regulation (EC) No 805/2004 of the European Parliament and of the Council creating a European Enforcement Order for uncontested claims, Official Journal L 300, 17/11/2005 P. 0006 – 0018 – Karl Beltz, Le titre exécutoire européen (TEE), Dalloz 2005, Chr. p. 2707.Google Scholar

20 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, OJ L 174, 27.6.2001, p. 124.Google Scholar

21 Certain passages of the following text have been taken out of the website www.europa.eu in respect to questions on jurisdiction and conflcts of law.Google Scholar

22 Official Journal C 189 of 28.07.1990. – The rules of the Convention were extended to the States belonging to the European Free Trade Association by the Lugano Convention, signed on 16 September 1988 and also to all new Member States. A consolidated version of the Convention was published in 1998 (OJ C 27 of 26.01.1998).Google Scholar

23 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 12, 16.1.2001, p. 123.Google Scholar

24 See Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 299, 16.11.2005, p. 6267. – Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters, OJ L 300, 17.11.2005, p. 5560.Google Scholar

25 ECJ 13 July 2000. – Group Josi Reinsurance Company SA v Universal General Insurance Company (UGIC). – – Case C-412/98. ECR 2000 Page 1-05925.Google Scholar

26 In the case of trusts, domicile is defined by the judge of the Member State whose court has been seized; the court applies its rules of private international law. See in particular, the Hague Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition.Google Scholar

27 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, (OJ L 338 23.12.2003 p. 1). This Regulation came into force on 1 August 2004 and applies from 1 March 2005.Google Scholar

28 As a general rule the Regulation replaces the existing conventions between two or more Member States that concern the same matters, and it will prevail over certain multilateral conventions on relations between Member States that concern matters governed by the Regulation: the Hague Convention of 1961 (law applicable to protection of minors), the Luxembourg Convention of 1967 (recognition of decisions on marriage), the Hague Convention of 1970 (recognition of divorces), the European Convention of 1980 (custody of children), and the Hague Convention of 1980 (civil aspects of international child abduction). Special provisions are applicable to:Google Scholar

relations of Finland and Sweden with Denmark, Iceland and Norway as regards the application of the “Nordic Marriage Convention” of 6 February 1931; relations between the Holy See and Portugal, Italy and Spain.Google Scholar

29 Cf. the Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, OJ L 48, 21.2.2003, p. 313 and 2003/93/EC: Council Decision of 19 December 2002 authorizing the Member States, in the interest of the Community, to sign the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, OJ L 48, 21.2.2003, p. 12.Google Scholar

30 With regard to relations with the Hague Convention of 19 October 1996 on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children, the EC Regulation is fully applicable if the child in question is habitually resident in a Member State. The rules on recognition and enforcement also apply if the competent court in a Member State issues a judgment, even if the child in question is habitually resident in a non-Member State that is a party to the Hague Convention.Google Scholar

31 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.Google Scholar

32 In certain cases of relocation, that is of a lawful change of residence of a child, where the courts of the Member State of the former residence of the child have already issued a judgment on parental responsibility (particularly as concerns rights of access), this matter continues to come under the jurisdiction of the courts of that State. Moreover, the spouses may accept the jurisdiction of the divorce court to also decide on matters of parental responsibility.Google Scholar

In certain cases, the parents may also agree to bring the case before the courts of another Member State with which the child has a close connection. Such a connection may, for instance, be based on the nationality of the child.Google Scholar

33 This provision applies, for instance, to cases of refugee children or children internationally displaced because of disturbances occurring in their countries of origin.Google Scholar

34 See also Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children OJ L 048, 21/02/2003 p. 0003 – 0013.Google Scholar

35 These are the following: recognition is manifestly contrary to public policy; the respondent was not served with the document which instituted the proceedings in sufficient time to arrange for his or her defence; recognition is irreconcilable with another judgment. For judgments in matters of parental responsibility there are two further grounds for non-recognition: the child was not given an opportunity to be heard; a person claims that the judgment infringes his or her parental responsibility, if it was issued without such person having been given an opportunity to be heard.Google Scholar

36 Council regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, OJ L 160 30.06.2000 p. 1.Google Scholar

37 Except where the effects of such recognition would be contrary to the State's public policy; in the case of judgments which might result in a limitation of personal freedom or postal secrecy. However, restrictions on creditors’ rights (a stay or discharge) are possible only in the case of those who have given their consent.Google Scholar

38 Fausto Pocar, La codification européenne du droit international privé: vers l'adoption de règles rigides ou flexibles vers les États tiers? in Le droit international privé: esprit et méthodes, Mélanges en l'honneur de Paul Lagarde, Dalloz 2005, p. 697705 spéc. p. 700.Google Scholar

39 Jean-Sylvestre Berge, Le droit d'une « communauté de lois »: le front européen, in Le droit international privé: esprit et méthodes, Mélanges en l'honneur de Paul Lagarde, Dalloz 2005, p. 113136.Google Scholar

40 Convention on the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the Convention on the law applicable to contractual obligations opened for signature in Rome on 19 June 1980, and to the First and Second Protocols on its interpretation by the Court of Justice of the European Communities, Official Journal C 169, 08/07/2005 p. 0001 – 0009.Google Scholar

41 1980 Rome Convention on the law applicable to contractual obligations (consolidated version), Official Journal C 027, 26/01/1998 P. 0034 – 0046.Google Scholar

42 With the exception of: questions involving the status or legal capacity of natural persons; contractual obligations relating to wills, matrimonial property rights or other family relationships; obligations arising under negotiable instruments (bills of exchange, cheques, promissory notes, etc.); arbitration agreements and agreements on the choice of court; questions governed by the law of companies and other corporate and unincorporate bodies; the question of whether an agent is able to bind a principal to a third party (or an organ to bind a company or body corporate or unincorporate); the constitution of trusts and questions relating to their organisation; evidence and procedure; contracts of insurance which cover risks situated in the territories of the Member States (re-insurance contracts are covered, however).Google Scholar

43 These rules do not apply to contracts of carriage or contracts for the supply of services in a country other than that in which the consumer has his habitual residence.Google Scholar

44 David Lefranc, La spécificité des règles de conflit de lois en droit communautaire dérivé, Rev. crit. DIP, 2005, p. 412.Google Scholar

45 Norbert Reich, EG-Richtlinien und internationales Privatrecht, in L'européanisation du droit international privé, Série de publications de l'Académie de Droit Européen de Trèves Vol. 8, 1996, p. 109126.Google Scholar

46 Directive on the return of cultural objects unlawfully removed from the territory of a Member State (1993/7, 15.3.1993); Directive on unfair contract terms (1993/13, 5.4.1993); Directive on time-sharing (1994/47, 26.10.1994); Directive concerning the posting of workers in the framework of the provision of services (1996/71, 16.12.1996); Directive 97/7, 20.5.1997 on the protection of consumers in respect of distance contracts; Directive 1999/44, 25.5.1999 on certain aspects of the sale of consumer goods and associated guarantees; Second non-life insurance Directive (1988/357, 22.6.1988) as supplemented and amended by Directive 1992/49 and 2002/13; Second life assurance Directive (1990/619, 8.11.1990) as supplemented and amended by Directives 1992/96 and 2002/12Google Scholar

47 It covers the following online sectors and activities in particular: newspapers, databases, financial services, professional services (solicitors, doctors, accountants, estate agents), entertainment services (video on demand, for example), direct marketing and advertising and Internet access services.Google Scholar

48 The Directive applies solely to service providers established in the European Union (EU). However, to avoid affecting global electronic commerce, the Directive seeks to avoid incompatibilities with legal trends in other parts of the world.Google Scholar

49 M. Fallon, Variations sur le principe d'origine, entre droit communautaire et droit international privé, in Mélanges rigaux, Bruylant, 1993, p. 183.Google Scholar

50 Jürgen Basedow, Spécificité et coordination du droit international privé communautaire, in Les travaux du comité français de DIP 2005, p. 275305.Google Scholar

51 David Lefranc, La spécificité des règles de conflit de lois en droit communautaire dérivé, Rev. crit. DIP, 2005, p. 412, 415.Google Scholar

52 Pierre-Yves Gautier, Inquiétudes sur l'interprétation du droit uniforme international et européen in Le droit international privé: esprit et méthodes, Mélanges en l'honneur de Paul Lagarde, Dalloz 2005, p. 327342.Google Scholar

53 Catherine Kessedjian, La Convention de Rome du 19 juin 1980 sur la loi applicable aux obligations contractuelles – vingt ans après, in Private International Law in the International Arena, From National Conflict Rules Towards Harmonization and Unification, Liber amicorum Kurt Siehr, TMC Asser Press 2000, p. 336 – Michael Wilderspin, The Rome Convention – Experience to date before the Courts of the Member States, in L'européanisation du droit international privé, Série de publications de l'Académie de Droit Européen de Trèves Vol. 8, 1996, p. 47, p. 50.Google Scholar

54 Another source of divergent interpretations is that certain Member States have chosen to incorporate the provisions of the Convention in their national legislation by statute, sometimes amending the original text.Google Scholar

55 The concept of consumer, for example.Google Scholar

56 De Vareilles-Sommières Pascal, Un droit international privé européen?, in Le droit privé européen, Economica, p. 136, spec. p. 145.Google Scholar

57 This was the case, for example for the Directive on unfair terms adopted in 1993. This directive provides that a “consumer does not lose the protection of the Directive by virtue of the choice of the law of a non-member country as the law applicable to the contract if the latter has a close connection with the territory of the Member States”. Yet, if the same contract were subjected to the Rome Convention, it is not at all improbable that the law of the said third country would apply. In other terms, the consumer victim of unfair contract terms benefits from a better protection than a consumer whose contract is considered to be normal.Google Scholar

58 Uwe Blaurock, Vermutungen und Ausweichklausel in Art. 4 EVÜ – ein tauglicher Kompromiss zwischen starren Anknüpfungsregeln und einem flexible approach?, Festschrift Hans Stoll, Mohr Siebeck 2001, S. 463. – Jonathan Hill, Choice of Law of Contract under the Rome Convention: The Approach of the UK Courts, ICLQ Vol. 53, April 2004, p. 325. – Simon Atrill, Choice of Law in Contract: The Missing Pieces of The Article 4 Jigsaw?, ICLQ, Vol. 53, July 2004, p. 549.Google Scholar

59 Hans Ulrich Jessurun d'Oliveira, « Characteristic Obligation » in the Draft EEC Convention, Am. J; Comp. L (Vol. 25) 1977, p. 303, p. 330. – Jolanta Kren Kostkiewicz, Das Verhältnis zwischen dem engsten Zusammenhang und der charakteristischen Leistung (Art. 117 Abs. 1 und 2 IPRG) – dargestellt anhand ausgewählter Innominatverträge, in Private International Law in the International Arena, From National Conflict Rules Towards Harmonization and Unification, Liber amicorum Kurt Siehr, TMC Asser Press 2000, p. 361, p. 363. – Marie-Elodie Ancel, La prestation caractéristique dans les contrats, Economica, 2002.Google Scholar

60 This should change in the future with the Proposal for a Regulation of the European Parliament and the Council on the law applicable to contractual obligations (Rome I)/* COM/2005/0650 final – COD 2005/0261 */ see the proposed Article 4 – Applicable law in the absence of choice Google Scholar

1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3, the contract shall be governed by the law determined as follows: Google Scholar

(a) a contract of sale shall be governed by the law of the country in which the seller has his habitual residence; Google Scholar

(b) a contract for the provision of services shall be governed by the law of the country in which the service provider has his habitual residence; Google Scholar

(c) a contract of carriage shall be governed by the law of the country in which the carrier has his habitual residence; Google Scholar

(d) a contract relating to a right in rem or right of user in immovable property shall be governed by the law of the country in which the property is situated; Google Scholar

(e) notwithstanding point (d), a lease for the temporary personal use of immovable property for a period of no more than six consecutive months shall be governed by the law of the country in which the owner has his habitual residence, provided the tenant is a natural person and has his habitual residence in the same country; Google Scholar

(f) a contract relating to intellectual or industrial property rights shall be governed by the law of the country in which the person who transfers or assigns the rights has his habitual residence; Google Scholar

(g) a franchise contract shall be governed by the law of the country in which the franchised person has his habitual residence; Google Scholar

(h) a distribution contract shall be governed by the law of the country in which the distributor has his habitual residence.Google Scholar

2. Contracts not specified in paragraph 1 shall be governed by the law of the country in which the party who is required to perform the service characterising the contract has his habitual residence at the time of the conclusion of the contract. Where that service cannot be identified, the contract shall be governed by the law of the country with which it is most closely connected.Google Scholar

61 For example see, Green Paper on applicable law and jurisdiction in divorce matters {SEC(2005) 331}/* COM/2005/0082 final */ – Proposal for a Council Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations {SEC(2005) 1629} /COM/2005/0649 final – CNS 2005/0259 */Google Scholar

62 Sylvette Guillemard, Alain Prujiner, La codification internationale du droit international privé: un échec?, (2005) 46 Les Cahiers de droit 175.Google Scholar

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