diritto internazionale privato

Verso una codificazione europea del diritto internazionale privato?/Towards a EU PIL Codification? (2) Some Thoughts on a EU Code of Private International Law

Ángel Espiniella Menéndez is a senior lecturer in Private International Law at the University of Oviedo.

1. Presentation

When we talk about codification, it is necessary to give priority to what the practitioners need, not the academics. The practitioners, including the courts, are recently undergoing a high degree of professional specialization. They face specific issues concerning family matters, successions, contracts or company law, irrespective of their cross-border implications. For instance, if they usually deal with contract law, they probably prefer that the aspects of cross-border contract law are regulated in the same instrument containing rules on contracts. Private International Law (PIL) is clearly connected with private law.

Nevertheless, this approach is not convincing in EU law because harmonization of private law has only partially occurred. From the point of view of the EU legislator, it is clear that a potential codification would be restricted to PIL. Maybe that is not the best solution, but, in accordance with the principle of subsidiarity, it is the best “possible” solution. A EU Code of Private International Law, as proposed in the volume Quelle architecture pour un code européen de droit international privé?”, edited by M. Fallon, P. Lagarde and S. Poillot-Peruzzetto, probably fits with the idea of neo-modernism based on systematization and rationalization of a fragmentary set of rules, breaking the avant-garde idea of dynamical law outside the codes.

2. Some Advantages

In this sense, a EU PIL Code could be deemed to present the following advantages:

2.1. A Code would require a reflection about matters which have not been yet regulated: a thorough consideration about the material scope of the EU PIL would be particularly needed (see the Note of the European Parliament’s Directorate-General for Internal Policies: Current gaps and future perspectives in European private international law: towards a code on private international law). Think, for instance, about how EU has worried about the free movement of decisions on divorce, legal separation or marriage annulment, but not about the free movement of marriage. For these reasons, Rome III Regulation expressly excluded this matter. That strategy causes false premises: shall an Italian decision of annulment of a same sex-marriage be recognized with retroactive effects in Spain, where the marriage was validly celebrated? Italy, where the judgment was rendered ‑it should be borne in mind that, according to article 3 of Brussels II.a Regulation, we have seven grounds of jurisdiction- may discard Spanish law under public policy grounds and thus legitimately consider that the marriage is invalid under Italian law. But it does not make sense that this decision is intended to be recognized abroad.

Another interesting example: I wonder if, in order to improve the free movement of goods, it is time to set forth uniform rules concerning the applicable law to property and the effects of the principle of origin. The risk of courts in applying the law of the State of destination might cause dysfunctions: in some cases, the movement of goods might provoke the application of a more favorable law, causing “reverse discriminations”; in others, movement might harm parties’ legal expectations, causing an obstacle to the free movement of goods.

2.2. A Code would unify concepts: probably the hypothetical codification would harmonize some categories, which nowadays diverge from State to State. We can think, for instance, about the concept of habitual residence or the definition of consumers in several regulations. Focusing on the latter, a wider definition is given by the Regulation creating a European enforcement order for uncontested claims and by the Regulation creating a European order for payment procedure. A stricter definition is provided by Rome I Regulation, which focuses on the consumers when the professional pursues or directs his activities to the country where the consumer has his habitual residence. In between these definitions, Brussels I Regulation refers to consumers “caught” by the professionals but also to consumers who conclude contracts for the sale of goods on instalment credit terms or for a loan repayable by instalments.

2.3. A Code would unify legal solutions: this is one of the most relevant strengths of the codification, as we can confirm with the brilliant proposal of a Rome 0 Regulation, contained in the volume edited by S. Leible and H. Unberath (Brauchen wir eine Rom 0-Verordnung?, Sellier, 2013), concerning issues of characterization, renvoi, local conflicts, preliminary questions, public policy or application of foreign law. But we could also refer to a Brussels 0 Regulation. Let me focus on jurisdiction and recognition and enforcement. In matters of jurisdiction, I wonder if we need four different provisions for lis pendens (Brussels I.a, Brussels II.a, Brussels III and Regulation on successions), considering also the silence of the European Insolvency Regulation, or maybe we need a general rule allowing for some adjustments for specific matters.

We can think also about rules on recognition and enforcement. I wonder if the current framework is justified. We can find very different solutions, ranging from the declaration of enforceability requiring an examination of grounds for refusal from the first phase (Brussels II.a Regulation), to the direct enforcement, without any declaration of enforceability (Articles 17-22 Brussels III Regulation). In between these models, we can find a declaration of enforceability, but without controls in the first phase (Articles 23-38 Brussels III Regulation and Regulation on matters of succession), or direct enforcement with possibility of anti-enforcement procedure (Brussels I.a Regulation), or direct enforcement of judgment certified by the court of origin (Regulation on European Enforcement Order). In other words, all models of enforcement procedure differ from each other and I wonder if that plurality of models is strictly justified ratione materiae.

2.4. A Code would remove gaps: the codification would probably eliminate gaps which have arisen out of the rigid separation among regulations. I think that the relations between Rome I and Rome II Regulation is a very interesting testing bench (R. Arenas García in AEDIPr, 2006). Firstly, let us focus on the direct action against the insurer. Rome II Regulation provides clear rules in order to bring a direct action in cases of non-contractual liability, but Rome I Regulation does not provide for any rule for the direct action against insurer in cases of liability derived from the contracts of provision of professional services (P. Jiménez Blanco in AEDIPr, 2007). Secondly, the question of whether an agent is able to bind a principal in relation to a third party is excluded from Rome I Regulation. But it is not regulated by Rome II Regulation, unless we apply its rules on negotiorum gestio, which is very doubtful.

2.5. A Code would provide stability of rules: I think that ephemeral regulations that are subject to far-reaching revisions in too short periods are not desirable. For instance, was it appropriate that, six months after the Agreement between EU and Denmark for the application of the Regulation on the service of judicial and extrajudicial documents, that Regulation was replaced? Furthermore, is it adequate that, before the second version of Lugano Convention entered into force in order to ensure its adaptation to Brussels I Regulation, the EU started to discuss the recast of Brussels I or the Regulation on maintenance obligations which, by the way, includes a rule conflicting with the Lugano Convention (Article 4.4)?

2.6. A Code would familiarize the practitioners with EU PIL rules: Certainly a Code would make the  activity of practitioners much easier. I know that it is not a scientific argument but it is a practical one. We can refer, for instance, to the negative impact of something as simple as the names of the regulations. Many times we use abbreviated expressions relating to their legal background (“Brussels I”, “Rome I”). Thus, the practitioners need to know not only the rules in force but also the historical background, being PIL considered as “droit savant”, according to the definition by B. Oppetit. Sometimes these abbreviated expressions are referred to a distant past (“Brussels I.a” and “Brussels II.a”). Sometimes these abbreviated expressions are inventions (“Brussels III” and “Rome III”). Sometimes the past is not taken into account: Regulation on insolvency proceedings is not enlisted as one of the “Brussels” regulations but it is based on the Convention of 1995, made in Brussels. And, last but not least, sometimes the short denomination is confusing because the second regulation (“Rome II” Regulation of 2007) was adopted before the first regulation (“Rome I” Regulation of 2008).

3. Some Barriers

I would like to underline that I agree with the central idea of neo-modernism based on clarification of rules. But a code on EU Private International Law should be drafted in a long term, because nowadays it faces some barriers. As EU is gaining ground in more and more matters of PIL, a dynamical law would be probably preferable for the EU legislator, preventing to petrify its regulations or to slow its progress, as has been said by E. Jayme and C. Kohler in an article whose title is very clear: “Eurozentrismus ohne Kodifikationsidee” (Eurocentrism without an Idea of Codification). Let me refer to five legal barriers:

3.1. The difficulty of reaching the same spatial scope in all matters: it is difficult to explain the reasons which justify several definitions of spatial scope, particularly, in relation with international jurisdiction. We find too many different models: for instance, a model of universal application of EU rules (Regulations on maintenance obligations and on successions), or a model of limited application (Brussels I.a Regulation or the European Insolvency Regulation). In between these models, we could refer to a model of cumulative application in the Brussels II.a Regulation, under which, in addition to the EU rules, the national rules may be applied in particular circumstances.

3.2. The difficulty of looking for “flexicurity”: in my opinion, the success of a hypothetical code requires to combine security and flexibility, so that the codification would include clear rules adapted by the courts to the circumstances of the case. It would be something similar to the “flexicurity” principle. Certainly, this aim could be reached by a code, as shown by the well-known clause concerning the more closely connected law (Rome I and Rome II Regulations or Regulation on succession). In this sense, this aim is not exactly a barrier, but an added difficulty because, in my opinion, a codification based on flexible rules is more complex. I wonder, in this sense, if it is possible to reach a general codification when, for instance, the Regulation on matters of successions includes 83 Recitals, which are very important as explanatory notes or even as “pseudo-rules” (see Recital 12 requiring to take into account the winding-up of the matrimonial property regime or, in another field, Recital 33 of Rome II Regulation requiring to take into account all the relevant actual circumstances of the specific victim of road accidents). Maybe the codification requires that some Recitals become rules or official reports. By the way, these official reports are very useful and the EU should recover this practice.

3.3. The problem of the bureaucratization of PIL:  it is difficult to imagine a EU Code due to the current process of bureaucratization of PIL, so called by B. Audit, as a result, particularly, of the large number of forms and annexes of the regulations. How could these forms be integrated in a Code? It is possible but it is not easy.

3.4. The possibility of repeating past mistakes: in general terms, material codification has looked suspiciously at lex mercatoria, maybe due to the fact that lex mercatoria represents opposite values (not codified rules, outside sovereign powers, as B. Ancel said). We could probably guess that the codification would confirm the policy of Rome I Regulation, based on the freedom of choice of national laws, but excluding the choice of lex mercatoria. It is difficult to understand this policy, because, if the parties may choose any law, even the most favorable to lex mercatoria, as J. C. Fernández Rozas and S. Sánchez Lorenzo said, why the parties may not directly choose lex mercatoria as such? Would such a choice be possible, the parties could reduce information costs about the national law more favorable to lex mercatoria.

3.5. What happens with the common law tradition?: the question is very clear: does a EU Code fit with the Irish and British system of opting-in? Moreover, the idea of a Code does not easily fit within the working methods of British and Irish practitioners. But it is also true that these practitioners are increasingly accustomed to “civil law method” of the EU PIL regulations, perhaps mediated by the role of the EU Court of Justice, as R. M. Moura Ramos highlighted. Maybe forum non conveniens rigidly adopted by Article 15 of “Brussels II.a” Regulation is the best example and marked a before and after.

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Angel Espiniella

Angel Espiniella

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