Izvorni znanstveni članak
Directive as a source of European private international law
Vilim Bouček
; Pravni fakultet Sveučilišta u Zagrebu, Hrvatska
Sažetak
In the context of the main characteristics of European law on the one hand, and private international law on the other, and in the light of twenty years' application of the EC directives as a source of European private international law, the author considers specific features of directive as an unwritten (hidden) conflict of law rule in the ruling of the European Court in Ingmar case and its relation to the Rome Convention on the Law Applicable to Contractual Obligations of 1980, Rome I Regulation of 2008 and other sources of private international law in the EU. The author points out that the special importance of the directive is expressed in the Ingmar case of the European Court of Justice. In this case the Court has given the conflict of law significance to substantive law provisions of the directive by interpreting the directive lacking a conflict of law rule by adding an unwritten conflict of law rule. Thus in the Ingmar case the Court has determined that European mandatory protective regulations in favor of commercial agent or, in the future, potentially, in favor of a customer, will be taken into account separately from other regulations of applicable law chosen by contracting parties. European law which contains mandatory protective regulations is applied independently of regulations of national private law and its application is ensured by the unwritten conflict of law rule contained in substantive law regulations of the directive. Summing up the importance of directives as a source of European private international law, the author concludes that they marked the beginning of harmonization of European law by harmonizing conflict of law rules. However, the development of EC/EU as a legal community and prevention of „atomization“ of European private international law in the EU has been made possible today only by means of EC regulation as a prevalently used legal instrument. Within this framework, directives have become a recessive source of European private international law. The author concludes that in spite of its diminished importance, directive continues its legal existence as a source of European private international law which will additionally contribute to the creation of „European judicial area“). (Article 62 of the EC Treaty)
Ključne riječi
European private international law; directives; Ingmar – ruling of the European Court of Justice
Hrčak ID:
30721
URI
Datum izdavanja:
15.12.2008.
Posjeta: 4.325 *