Pregledni rad
Legislative framework for European private international law according to the Treaty establishing a Constitution for Europe of 2004
Vilim Bouček
Sažetak
In this article the author gives a presentation of the provisions of the Treaty establishing a Constitution for Europe of 2004 which determine the legal basis for regulation of European private international law. Although the analyzed provisions of this “third Treaty of Rome” of 29 October 2004 did not come into force on 1 November 2006 as it had been originally planned, it was expected that they would not be, in the author’s opinion, even in the case of the revised and/or enlarged provisions of the present Treaty establishing a Constitution for Europe, essentially changed in the part regulating European private international law.
The same as in Article 65 of the EC Treaty, the Treaty establishing a Constitution for Europe of 2004 determines European private international law as an important component of judicial cooperation in civil matters (Article III-269, paragraph. 2, item c), whose provisions do not have universal application but are limited to the measures necessary “for the proper functioning of the internal market” (Article III-269. paragraph 2). By this, European private international law has been reduced to the conflict of laws of the internal market of the EU and it would not be applicable to legal relations with third countries.
The general legal basis for “the adoption of measures for the approximation of laws and regulations of the Member States” (Article III-269, paragraph. 1, sentence 2) enables, the same as the interpretation of Article 65 of the EC Treaty in force, adjustment of legal regulations of the Member States which should be potentially harmonized and which are not contained in paragraph 2, Article III-269 of the Treaty establishing a Constitution for Europe of 2004. This, of course, also refers to autonomous private international law of the Member States of the EU.
Although future European private international law is to be based on “the principle of mutual recognition of judgments and decisions in extrajudicial cases” (Article III-269, paragraph 1 and Article I-42, paragraph 1, item b) of the Treaty establishing a Constitution for Europe of 2004), only the future case law will show whether this principle should be interpreted narrowly: as the principle of affirmation of the abolition of the need to conduct special recognition proceedings of foreign court decisions in civil law matters and as the principle of minimization of the reasons for the rejection of recognition of foreign court decisions, and therefore reducing evaluation of the importance of public order as a negative presumption for recognition, or widely: as the principle which may(?) substitute for private international law.
For future as well as for European private international law in force, the role of the supplementing and moderating function of the European Court is also important, which is, (particularly) in the sense of systematic and teleological interpretation, realized by the
interpretation of European law in case law.
The last, but not the least important, possible reconsideration of the provisions of the Treaty establishing a Constitution for Europe of 2004 could, in the optimistic variant, stimulate the creators of the European integration process to show greater readiness to regulate European private international law, as a component of judicial cooperation in civil matters in European law, more systematically.
Ključne riječi
European private international law; Treaty establishing a Constitution for Europe of 2004
Hrčak ID:
9826
URI
Datum izdavanja:
15.2.2007.
Posjeta: 2.307 *