Original scientific paper
International agreements - sources of private international law in the territory of the European Union
Vilim Bouček
; Faculty of law, University of Zagreb, Zagreb, Croatia
Abstract
International agreements as sources of private international law (PIL) in the territory of E(E)C/EU perform their general function of unification of the provisions on governing law and of international civil procedural law.
In the stage of European integration of PIL lasting from 1 January 1958 to 30 April 1999, an international agreement was the principal unifying legal act. In this period, at the instigation of E(E)C and as a product of intergovernmental co-operation of the Member States, only the Brussels Convention of 1968 and the Rome Convention of 1980 were adopted, which, in terms of efforts in the domain of private international law,
was inadequate for encouraging the building of a common market, let alone an internal market, a higher degree of European integration.
Apart from the said Conventions, which (only) contributed to a regional unification of PIL at E(E)C/EU level, in the said period, within e.g. the Hague Conference, UNIDROIT, UNCITRAL and the Council of Europe, international agreements were adopted which possibly had a universal unifying effect, i.e. had a universal scope of application. However, as only some E(E)C/EU were party to them, these international agreements failed to realise their universal or even the regional European dimension. In the next period of European integration of PIL, between 1 May 1999 to 30 November 2009, marked by the Treaty of Amsterdam of 2 October 1997 and the
Treaty of Nice of 26 February 2002, the EC gains the authority to regulate PIL and European private international law technically became EC law. The principal unifying instrument of PIL in the territory of the EU was the regulation. Twelve new regulations and a smaller number of international agreements were adopted in this ten-year phase of
European integration of PIL, which goes to show that international agreements lost their principal function, but rather acquired a complementary unifying one. This stage of development of international agreements as sources of PIL in the territory of the EU is also marked by the practice of the European Court regarding the
competence of the EC to conclude international agreements with third countries. Issuing an opinion on the new Lugano Convention in 2006, and in the context of an important source of international (civil) private law in the territory of the EU and EFTA, the European Court reaffirmed and extended its AETR doctrine of 1971, thus establishing exclusive competence of the EC for concluding this international agreement to be applied in the European Economic Area. Communitarisation of international agreements as sources of IPL in the territory of the EU is particularly evidenced in the fact that on 3 April 2007 the EC acceded to
the Hague Conference on Private International Law. This position, brought about by the EC in the growing communitarisation trend of expanding external competence in the conclusion of international agreements as sources of PIL, both within the EU (e.g. Treaty between the EC and Denmark of 2005) and with third parties (e.g. the new Lugano Convention of 2007), was in the later EU law stage taken over by the EU. In the EU law stage of private international law, i.e. from 1 December 2009 to the present (2011), marked by the Treaty of Lisbon of 13 December 2007, the EU gains the authority to regulate PIL, so that European private international law has technically become EU law. The regulation remains the main unifying instrument of PIL in the EU, while international agreements continue to have (only) a complementary unifying function. So, even though the Lisbon Treaty does not contain any explicit provisions on the competence of the EU for concluding international agreements concerning PIL, the post-Lisbon EU has the competence to enter into contractual obligations/relations with
third countries, as did the EC in the past. The provisions of the Treaty on the Functioning of the EU (TFEU) are in force as of 1 December 2009, containing a general clause giving authority to the EU to conclude international agreements with third countries (Article 216 TFEU), and for the first time codifying the implicit competence of the EU for concluding international agreements. According to this provision, the EU can conclude an agreement with one or more third countries… if so provided by the Treaty establishing the European Union and TFEU, or if the conclusion of the agreement is necessary for achieving an objective envisaged in the Treaties, within the EU policies or if envisaged by a binding legal act of the EU, or if it could affect common rules or change the scope of their application (paragraph 1). In these cases, the exclusive implicit competence of the EU applies (arg. per analogiam
ex 3/2. TFEU). Therefore, in principle, the EU Member States lose the authority to enter into international agreements (arg. a contrario 216. TFEU). This negative regulation also pertains to international agreements as sources of PIL in the territory of the EU. It also confirms the positive regulation of the authority of Member States, according to which “Member States exert their authority in the extent not exerted by the EU” (Article 2, paragraph 2, sentence 2 TFEU). This means that Member States may conclude international agreements with third countries concerning areas of law not regulated in EU law, or, if they are, do not affect the importance of the agreement. In addition, Member States may reaffirm their competence in the extent relinquished by the EU (Article 2, paragraph 2, sentence 3 TFEU). We can observe two types of international agreements – the “European” IAs, to which the EU is a party, and the “interstate” IAs, concluded between two or more EU Member States or a Member State and a third country. Their position in the hierarchy of sources of PIL in the EU is as follows: the European agreements come second, between primary and secondary EU legislation, while the interstate agreements as unifying acts come fourth, after the EU sources. Exceptionally, though, under certain
conditions, especially if so regulated by EU legal acts or the provisions of international (contract) law contained in an interstate agreement, international agremeents may have precedence over EU regulations. This exception is supported by the favor executionis principle contained in the construction of sources of European PIL given by the European Court within the framework of Article 71 of the Brussels I regulation, as regards the recognition and enforcement of foreign judgments in civil and commercial disputes. If we add to this the communitarisation properties of international agreements as sources
of PIL in the EU, according to which the EU affects interstate agreements in a specific way (e.g. by regulations governing the procedure and conditions under which Member States may exceptionally negotiate and conclude international agreements with third countries individually, on specific matters from a certain area of law, or by granting explicit authorisation to Member States to conclude a certain international agreement), it becomes evident that international agreements as sources of PIL in the EU only have a complementary, yet important unifying role.
Keywords
Conventions; Sources of Private International Law; European Union; Treaty of Lisbon
Hrčak ID:
75506
URI
Publication date:
20.12.2011.
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