Codification of European Private International Law!

Abstract

The term "framework of European private international law" covers all EU instruments in force, dealing with the problem of jurisdiction, applicable law, recognition and enforcement of law, foreign judgments and authentic instruments. Private international law has traditionally been, and in part still is, a matter of national law. Each state has its own rules to deal with jurisdiction, applicable law, recognition and enforcement of foreign judgments. Europe has an interest in matters of private international law since the 1957 Treaty on the European Economic Community. The Treaty of Amsterdam 1997 introduced the broader concept of judicial cooperation and brought three core issues of private international law into the field of the European Community. The three core issues are now found in Article 81 (2) (a) and (c), Treaty on the Functioning of the European Union. This paper suggests a road map towards a more comprehensive codification of EU private international law. At the moment, legislative efforts should be directed to the creation of special instruments for well-defined problems in European private international law. The fruits of these efforts can be long-lasting if they are combined into a code of EU private international law. The content of recent national codifications can help identify current gaps within the EU framework. Motives for national legislatures to codify private international law are also relevant for EU legislatures. A brief comparison is made of three recent codifications: Belgium, Holland and Poland. The Belgian codification contains rules on jurisdiction as well as on enforcement and recognition, while the Dutch and Polish laws decided to limit the DNPE legislation on choice of law rules. A typical characteristic of national codifications of private international law is that they may contain rules on the principles of private international law, or general provisions of private international law. Motives for codification vary, from a desire to increase transparency and make the rules adopt an open and international approach, to a desire to make the rules more easily accessible to legal practitioners. Private international law is also influenced by developments within the internal (national) framework. New rules of private international law will be necessary to adapt to the new legal institutions of national systems. Another way in which developments in substantive law can change private international law is that values considered important at the national level find their way into private international law. Private international rules that provide additional protection for employees and consumers serve as an example of this process. The gaps in the current framework can be divided into three main categories. First, loopholes which are the desired result of territorial limitations to the scope of EU legislation. Second, systemic gaps occur when the current framework is compared to those particular problems that, taken together, constitute the traditional problems of private international law. The current framework fixes most of these particular problems, but not all. Thirdly and finally, there are shortcomings when EU legislation provides for those certain questions that are deliberately left out of the scope of an accession instrument, even though from a systematic perspective these questions are part of the matter regulated in the instrument, e.g. . contractual obligations. In addition to these three main categories, it should be noted that as a result of various factors, the community instrument may contain rules that refer to notions which by their nature are open to interpretation. For the time being these open notions are best left to the case law or legal writing to determine their meaning. The truly necessary insertions would address the gaps that have been defined as 'systematic' omissions, as there is no rule that can be applied. The lack of harmonized or unified rules has an immediate effect on citizens and businesses in the EU. In the discussion on the codification of private international law, attention should be paid to the differences between the national concept and the 'codification' of European private international law. In principle, it means a procedure by which the acts to be codified are repealed and replaced by a single act that does not contain substantial changes in those acts (Interinstitutional Agreement of December 20, 1994, point 1). An important aspect of codification at the EU level is the reduction of the volume of legislation. The EU legislature could consider dividing its attention and efforts into three separate areas of private international law that fall within the framework: civil procedure, civil and commercial cases in general (an almost complete area); choice of law (applicable law) in non-family cases (raising issues that have a strong connection with the internal market); private international law for family law cases (which will require unanimity in the Council). Directing its attention to these specific areas can assist the European legislature in progressing the completion of this framework.

Received: 25 December 2023 / Accepted: 25 February 2024 / Published: 23 April 2024