Changing balances of PIL theories in a Europeanized Private International Law
| Author | Klea Vyshka |
| Published date | 01 October 2018 |
| Date | 01 October 2018 |
| DOI | http://doi.org/10.1177/1023263X18806481 |
| Subject Matter | Articles |
Article
Changing balances of PIL
theories in a Europeanized
Private International Law
Klea Vyshka*
Abstract
This article offers a reading of the case law of the Court of Justice of the European Union (CJEU)
from a privateinternational law perspective(PIL). The developmentsthat the CJEU thus gave start to
in the field of company law, and especially in EU citizenship, invites for a reshaping of the balances
between Union lawand Member State private international laws, especiallyin the field of methods of
application.This article aims to shed light intothe question ‘To what extent hasthe EU citizenship as
a connecting factor in the context of a Europeanized PIL changed the PIL traditional methods of
application?’ The host Member State is obliged to recognize the duly created rights in the original
Member State, with respect to the mutual recognition principle. The return of the vested rights
theory as opposed to the use of the traditional conflict-of-law approach seems on its way.
Keywords
European citizenship, private international law, Europeanization, connecting factor, methods of
application, vested rights theory, conflict of laws
1. Introduction
This article discusses the maturity of European citizenship as an institution alongside the Europea-
nization in private international law matters (PIL). The uprising of European citizenship has been
regarded as a factor that leads to the decline of national sovereignty on matters that were strictly
regarded as state prerogatives,
1
and as an external influence that has led national PILs of Member
*D´
epartement d’´
etudes politiques et territoriales, Jean Monnet University, France.
Corresponding author:
Klea Vyshka, D´
epartement d’´
etudes politiques et territoriales, Jean Monnet University, Rue Michelet, Saint-Etienne, 42100,
France.
E-mail: klea.vyshka.95@gmail.com
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(5) 533–550
ªThe Author(s) 2018
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DOI: 10.1177/1023263X18806481
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States into a bumpy road of changes and a daptation, as this article will suggest, that lead to
different methods of application.
We will thus carry out a private international law reading, not only to the concept of European
citizenship as pertaining to natural persons but also to other concepts that can be considered as
‘connecting’ the specific persons or situations to the Union’s legal order, such as in the case of
‘companies or firms formed in accordance with the law of a Member State [which have ...] their
registered office, central administration or principal place of business within the Union’.
2
Here we
are talking about the lex societatis,
3
or in other words, the personal law of legal persons (companies
and firms). According to the TFEU these ‘shall ( ...) be treated in the same way as natural persons
who are nationals of Member States’.
4
As such, these factors will be our starting point to then
analyse to what extent we can consider them becoming a decisive connecting factor in the Eur-
opeanized PIL within the EU legal order. This growing importance of a European connecting
factor suggests the development of different methods of application of PIL.
A connecting factor refers to a link between the person and the legal system and rules that will
apply in specific contexts. In this framework, private international law has traditionally been built
upon the clear distinctions between domestic and foreign laws, whereas the existence of a common
European reality inserts a third dimension,
5
which does not necessarily aim to bring the first two
closer together. Cases in private law such as Garcia Avello and Grunkin-Paul as well as cases on
company law will be discussed, keeping in mind though that the citizenship case law developed by
the Court of Justice of the European Union (CJEU) cannot fully be extended by analogy to the case
law on companies, the first one having greater influence in guaranteeing the free movement of
natural persons in this regard.
6
Long thought as neglected by the EU legal order, the discipline of private international law has
had its own path towards Europeanization. The extended Union competences in the field of PIL
7
have been in place since the Treaty of Lisbon, and there has been, as a consequence, a growing
degree of legislative unification, which can also be described as a major step towards the Europea-
nization of PIL.
As further Europeanization in the PIL processes and contents is coming along the way, a new
concept is emerging into the PIL case law of CJEU: a type of new connecting factor that respec-
tively would be European citizenship
8
for natural persons and the lex societatis, or else the creation
in accordance with the laws of Union Member States of companies and firms (legal persons), under
Article 54 TFEU.
9
This article will specifically focus on the question: ‘To what extent has the EU
citizenship as a connecting factor in the context of a Europeanized PIL changed the PIL traditional
methods of application?’
2. Article 54 TFEU.
3. G. Van Calster, European Private International Law (Hart Publishing, 2010), p. 342.
4. Ibid.
5. J.P. Berg ´e, ‘The Gap between Legal Disciplines, Blind Spot of the Research in Law: Remarks on the Operation of
Private International Law’, XXX Working Paper DOI: 10.13140/RG.2.2.36091.72486 (2017), p. 3. https://papers.ssrn.
com/sol3/papers.cfm?abstract_id=2913418.
6. See section 2.2.1 of this article. See also C. Barnard, The Substantive Law of the EU (Oxford University Press, 2016),
p. 382.
7. See G-R. de Groot and J.J. Kuipers, ‘The New Provisions on Private International Law in the Treaty of Lisbon’, 15
Maastricht Journal of European and Comparative Law (2008), p. 109-114.
8. Article 20 TFEU.
9. Article 54 TFEU.
534 Maastricht Journal of European and Comparative Law 25(5)
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