The EU Civil Justice Framework and Private Law

Published date01 October 2015
AuthorMihail Danov,Paul Beaumont
Date01 October 2015
Subject MatterArticle
706 22 MJ 5 (2015)
‘Integration through (Private International) Law’*
P B and M D**
e diverse nature of substantive private law systems a cross Europe has ampli ed the
development of an EU Civil Justice system ba sed on harmonized EU private international
law (PIL) mechanisms.  e authors argue that the problems of jurisdiction , choice of law
and recognition and enforcement of judgments w ill be recurrent for courts and litigants in
a cross-border context, which may adversely a ect the le vel of litigiousness. A er analysing
several types of PIL cases brought before the English courts, the authors make the case
that there is a need for an appropriately cond ucted comparative study to collect empirical
evidence which explain s the cross-border litigation pattern and a ssesses the e ectiveness
of the EU PIL instruments. It is concluded that d evising an appropriate institutional
architecture for the interpretation and application of PIL legislative instruments is key
* e title is in uenced by the EUI major research proje ct on ‘Integration t hrough Law’. See M.
Cappellet ti, M. Seccombe and J. H.H. Weiler (eds.), Integration  rou gh Law: Europe and the Ameri can
Federal Expe rience (Walter de Gruyter, 1986). See al so, D. Augenstein (ed.), Integration through Law’
Revisited:  e Making of the European Pol ity (Ashgate , 2012).
** Respectivel y, Professor of Europ ean Union and Private Internationa l Law and Director of the Centre
for Private Internat ional Law of the Universit y of Aberdeen; and Assoc iate Professor in Law, University
of Leeds.  is paper is w ritten within t he framework of research projec t JUST/2013/JCIV/AG/4635 on
‘Cross-Border Litigat ion in Europe: Private I nternational Law Leg islative Framework, Nat ional Courts
and the Cour t of Justice of the European Union’.  e project, w hich includes also Professor Ste fania
Bariatti (Uni versity of Mila n, Italy), Professor Jan von He in (University of Freiburg , Germany),
Professor Carm en Otero (Universidad Complut ense de Madrid, Sp ain), Professor  alia Kruger
(University of Antwer p, Belgium) and Dr A gnieszka Fr ąckowiak-Adamsk a (University of Wroclaw,
Poland), attracte d over € 730,00 0.00 in  nancial support from the EU Com mission Civil Ju stice
Programme . Some of the presented ideas were also dis cussed at a Jean Monnet Series of Workshops
which were funded by the EU Lifelong Learning Programme.  e aut hors are very thank ful indeed to
all workshop pa rticipants. Many th anks are due in part icular to Professor Stefa nia Bariatti, Profe ssor
Michael Hellne r, Professor  alia K ruger, Professor Carme n Otero, Dr. Katarina Tri mmings, Dr. Ivana
Kunda, Dr. Burcu Yük sel and Jayne Holl iday.  e usual disc laimers, includ ing the discla imer excluding
the Commiss ion’s responsibility, apply.
e EU Civil Justice Fr amework and Private Law
22 MJ 5 (2015) 707
to the creation of a genuine European area of justice as there cannot be rights without
appropriate remedies.
Keywords: EU law; cross-border litigation; civ il and commercial matters; fam ily matters;
Private International Law
e European Union has changed over the yea rs1 – it has signi cantly grown to cover a
diverse body of legal orders. It is now well establ ished that ‘in the Europea n Union, there
is a diversity of legal cu ltures, of legal traditions, of lang uages (…)’.2 Private international
law (PIL) instruments may be seen as an appropriate legislat ive tool which may be used
to preserve the inherent char acteristics of the diverse legal system s within the EU.3 Hay,
Lando and Rotunda have submitted t hat ‘[a] uni cation of substantive law may be a very
distressing change for societies which have widely di erent concepts and techniques; it
may, therefore, lag behind the economic integration’.4 In other words, the diverse nature
of the legal systems across Eu rope indicates that private law in Europe would be di cult
to harmonize in so fa r as ‘[o]nly in legal  elds where considerable harmonization had
taken place already would it be productive to implement the uni cation or uniformity
of positive law ’.5 Hence, the Treaty free movement provisions6 and the diverse nature of
substantive private law systems across Europe have a mpli ed the development of an EU
Civil Justice system ba sed on harmonized EU PIL mechanisms.7
1 J.H.H. Weiler, ‘Epilogue’, in D. Augenste in (ed.), Integration through Law’ Revisited:  e Making of the
European Polity, p.175. Compare, for example, M. Cappelletti, M. Seccombe and J.H.H. Weiler (eds.),
Integration  ro ugh Law: Europe and the Ameri can Federal Experie nce.
2 R. Se on-Green, ‘Cult ural diversity and the id ea of a European Civil Code’, in M .W. Hesselink (ed.),
e Politics of a European Civil C ode (Kluwer Law Inter national, 20 06), p.71, 72. See a lso, M. Van
Hoecke, ‘ e harmonisation of pr ivate law in Europe: Some misundersta ndings’, in M. Van Hoecke
and F. Ost, e Harmoni sation of European Private Law (Hart Publishi ng, Oxford 20 00), p.1, 3–5;
H. Collins, e European Code:  e Way Forward (CUP, 2008), p.124–145. J. Hendr y, ‘ e double
fragmentat ion of law: Legal System-Intern al Di erentiation and the proces s of Europeanization’ in D.
Augenstein (ed.), Integration throug h Law’ Revisited:  e Making of t he European Polity, p.157, 165.
3 H. Muir Watt, ‘Integr ation and diversit y:  e con ic t o f la ws a s a r eg ul ato ry t ool ’, in F. Ca fa ggi (ed .), e
Institutional Frame work of European Private Law (OUP, 2006), p.107; L. Tichy, ‘A new role for private
international l aw and procedural law in Eu ropean Integration? A cr itical comment’, in R. Brow nsword
et al. (eds.), e Foundation s of European Private Law (Hart Publi shing, 2011), p.393– 412. See als o,
European Council,  e Stockholm Prog ramme – An open and secure E urope serving and protec ting
the citizen s, [2010] OJ C 115/1, p.15.
4 P. Ha y, O. La ndo an d R . Ro tu nd a, ‘ Co n ict of laws as a techniqu e for legal integrat ion’, in M. Cappelletti ,
M. Seccombe and J.H.H. Weiler (eds.), Integration  rough Law: Europe and the Americ an Federal
Experience, p. 161, 256.
5 D.J. Gerber, ‘Sculpti ng the agenda of comparative law : Ernst Rabel and the Faca de of Language’, in A.
Riles (ed.), Rethinking the Ma sters of Comparative Law (Ha rt Publishing, 20 01), p.190, 216.
6 See more, R. Babayev, ‘Equa l treatment on the grounds of movement and choice- of-law rules unde r
Article81 TFEU ’, 19 Maastricht Journal of Europ ean and Comparative Law (2012), p.63.
7 See Article81 TFEU. Comp are, R.H. Graveson, ‘P roblems of Private Internat ional Law in Non-Uni ed
Legal System s’, in R.H. Graveson, Comparative Con ict of Laws: Se lected Essays Volume 1 (Nort h-

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