Equal Treatment on the Grounds of Movement and Union Choice-of-Law Rules under Article 81 TFEU
| Published date | 01 March 2012 |
| DOI | 10.1177/1023263X1201900106 |
| Date | 01 March 2012 |
| Subject Matter | Article |
19 MJ 1 (2012) 63
EQUAL TREATMENT ON THE GROUNDSOF
MOVEMENT AND UNION CHOICE-OF-LAW
RULES UNDER ARTICLE 81 TFEU
R B*
ABSTRACT
Union choice-of-law rules adopted pursuant to Article 81 TFEU aim to promote the
exercise of the Treaty free movement rights by provi ding certainty over the applicable law
and predictability of litigation in the context of c ross-border contractual, non-contractual
or other civil law relationships. At the same time , due to the territorial connecting factors
that these choice-of-law rule s are based upon, any possible di erence in treatment in terms
of the applicable law imposed in light of them cannot be excluded. In this respect, it is not
clear whether such a di erenc e in treat ment coul d also be c ontrary to Article 18 TFEU and
the Treaty free movement provisions that prohibit discrimin ation, not only on the grounds
of nationality, but also on the grounds of moveme nt.
Keywords: applicable law; Ar ticle 81 TFEU; choice-of-law rule; equal treat ment on the
grounds of movement; legal cert ainty
§1. IN T RODUCT IO N
With the entry into force of the A msterdam Treaty, the European Union acquired a n
express competence under Art icle 65 EC (now Article 81 TFEU) to adopt measures
unify ing national choice-of-law rules concerning civil matters. Severa l regulations
enshrining un i ed choice-of-law rules have so far been adopted under this provision.1
* Durham Doctor al Fellow, Durham Law S chool. I am gratef ul to Eleanor Spaventa , Robert Schütze ,
Michael Dougan a nd Catherine Taroni for thei r invaluable comments . e usua l disclaimer applies .
1 Regulation 86 4/2007 of the E uropean Parli ament and of the Cou ncil of 11July 2007 on the law applicable
to non-contractu al obligations (Rome II), [2007] OJ L 199/40; Regulation 593/20 08 of the European
Parliament and of t he Council of 17June 2008 on the l aw applicable to contract ual obligations (Rome I),
[2008] OJ L 177/6; Regulation 1259/2010 of 20December 2010 implementing enhanced cooperation in
Rufat Babayev
64 19 MJ 1 (2012)
In addition, a number of uni ed choice-of-law rules are also embodied in the Union
secondary legislat ion enacted under other Treaty provisions.2 Choice-of-law rules
determine what national substa ntive law is applicable to a given cross-border (or inter-
state) relationship. If choice-of-law rules vary from Member State to Member St ate, it
might lead to a situation where the same cros s-border relationship is regulated according
to di erent national substantive rules depending on t he forum. Such an outcome would
certainly a ect cross-border activ ities in the internal ma rket. With divergent national
choice-of-law rules one could hardly predict the outcome of litigation or be certain
over the applicable law. Uni ed choice-of-law rules adopted under Ar ticle 81 TFEU aim
to solve this problem. ese rules promote the exercise of the Treaty free movement
rights in the interna l market by providing cert ainty over the law applicable to cross-
border contractual, non-contractual or other civi l law relationships and predictabil ity
of litigation.
Uni ed choice-of-law rules adopted under Ar ticle 81 TFEU determine the applicable
law based on so-called con necting factors, which so far are main ly territorial in nature.3
For instance, among others, one could mention the place of employment, the place of
a company’s establishment, the place where an immovable property is located or the
place where a disputed event takes place. A possible di erence in treatment in terms of
the applicable law in accordance wit h territorial connecting factors ca nnot be excluded.
In this respect, one mi ght question how such an e ect pursuant to Union choice-of-law
rules adopted under Article 81 TFEU would be characterize d in light of the principle
of equal treatment enshri ned in Article 18 TFEU and i n the Treaty free movement
provisions. It is certainly less likely that these Union choice-of-law rules could be held
to be discrimi natory on the grounds of nationality because of the neutral nature of the
connecting factors t hey are premised upon. However, the principle of equal treatment
the area of the law appl icable to divorce and lega l separation (Rome III), [2010] OJ L 343/10; Regulat ion
4/2009 of 18Decembe r 2008 on jurisdict ion, applicable law, recognition and en forcement of decisions
and cooperation i n matters relating to mai ntenance obligations, [200 9] OJ L7/1. e latter refers to the
Hague Protocol of 23Novemb er 2007 on the Law Applicable to Ma intenance Obligation s.
2 Regulation 1408/71 on t he application of socia l security sc hemes to employed persons, to sel f-employed
persons and to members of t heir fami lies moving w ithin the Com munity, [1971] OJ L 149/2. is
Regulation h as been replaced and repe aled by Regulation 8 83/2004 of the Europea n Parliament and of
the Cou nci l of 29 Apr il 20 04 on th e coo rdi nat ion o f soc ial sec uri ty s yst ems , [20 04] OJ L 166 /1; Di rec tive
93/13/EEC of 5April 1993 on unfa ir terms in consumer cont racts, [1993] OJ L 095/29; Directive 94/47/
EC of the European Pa rliament and the Counc il of 26October 1994 on the protec tion of purchasers in
respect of cert ain aspects of cont racts relating to t he purchase of the right to u se immovable propertie s
on a timeshare ba sis, [1994] OJ L 280/83; Directive 1999/44/EC of the Europe an Parliament and of the
Council of 25 May 1999 on certain aspec ts of the sale of consumer goods and a ssociate gua rantees,
[1999] OJ L 171/12.
3 So far a Union choice-of-law r ule based on nationa lity as a conne cting fact or is only enshri ned in
Articles 5 and 8 of the Rome III Regulat ion. As one of the options provided, spouse s can choose the
lawof astateof which one of t hem is a national as governing t heir divorce or legal separat ion. In the
absence of a choice made, t he law of the State of which both s pouses are nationals at t he time the court
is seized cou ld be the applicable law.
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