European Private Law and External Relations Law
Prof. Marise CREMONA and Prof. Hans MICKLITZ
Short seminar (five sessions)Thursday/Friday, 8.45-10.45, Sala Triaria
Sessions: 20th Oct, 4th Nov, 17th Nov, 1st Dec and 2nd Dec.
Administrative Assistant: Eleonora Masella
This short course (5 sessions) will explore the increasing salience of EU external relations law and private law. The Stockholm Programme of December 2009 includes a section on ‘Increasing the EU’s international presence in the legal field’.
“The Community is working towards the establishment of a common judicial area based on the principle of mutual recognition of judicial decisions”
This phrase appears in the Preamble of a number of Council decisions in the field of private international law. It tells us something already visible in the Court of Justice’s Opinion 1/2003 on the Lugano II Convention: that in this field the EU is moving beyond cooperation between Member States and towards a common area or an area of common rules – even if those rules are establishing mutual recognition rather than harmonisation. This has implications for the international dimension of those rules. The Lugano I Convention already reflected the need to provide for extended international relationships alongside the Brussels Convention (now the Brussels Regulation). Since then the EU has acceded to the Hague Conference on Private International Law, Article 81 TFEU provides a substantive competence and increased internal legislation carries further external implications.
Issues covered will include:
- The basis for EU external competence in private (international) law: Article 81 TFEU and other substantive competences (eg consumer protection); implied powers. What happens when the EU cannot accede to a Convention although it may have (exclusive) competence in the field?
- The AFSJ is a field of shared competence (Article 4(2)(j) TFEU): what are the conditions under which EU competence becomes exclusive? We will also explore the implications of this including the practice of re-authorising Member States to conclude international agreements.
- EU law and the Member States’ international obligations in the field of private law: (i) without prejudice, non-affect and disconnection clauses; the rationale for disconnection clauses; their legal effect, within the international and EU legal orders; how do they differ from ‘without prejudice’ and ‘non-affect’ clauses? Are they needed in mixed agreements?
- EU law and the Member States’ international obligations in the field of private law: (ii) the interpretation of international conventions. How will the Court of Justice interpret an international convention in the field of private law to which the EU is not a party? How will it deal with a potential conflict between such a convention and an EU legislative act? How will it decide whether the convention or EU law should apply? What difference does it make if the EU is a party to the international convention? What are the effects of the Brussels Regulation on Member States’ private international dispute settlement regimes?