EU PIL – Role Model or Hegemony?
Caroline Sophie Rapatz, Professor at the Christian-Albrecht University of Kiel, has accepted the invitation of the editors of the blog to present her recent book, titled ‘Das Internationale Privatrecht der EU – Vorbild oder Vormacht? Abgrenzungen und Wirkungen im Verhältnis zum nationalen und völkerrechtlichen Kollisionsrecht’ (European Union Private International Law – Role Model or Hegemony? Delimitations and Effects in Relation to National and International Conflict of Laws), published by Mohr Siebeck.
The relationship between the EU Regulations on private international law and the conflict-of-laws rules and instruments of other regulatory levels – national traditions and codifications on the one hand, bilateral treaties and multilateral conventions on the other – is at first glance a straightforward one. Within their scope of application, European rules take precedence with regard to national ones; the continued application of pre-existing treaties is guaranteed by exceptions in the EU Regulations. In fact, however, the interplay between the different regulatory levels is much more complicated.
This is evidenced by the increasing number of ECJ decisions which have to deal with the exact scope of application the EU Regulations and their delineation vis-à-vis national and international PIL rules. At the borderline between European and Member States’ PIL, characterisation issues are frequently solved in favour of the EU Regulations’ far-reaching application, displacing national conflicts rules (e.g. ECJ 12 October 2017 – C-218/16 (Kubicka); ECJ 1 March 2018 – C-558/16 (Mahnkopf)). However, when it comes to politically sensitive issues – for example, non-judicial divorces or non-heterosexual marriages – there is a remarkable tendency to leave more or less clearly defined gaps in the European instruments (e.g. ECJ 20 December 2017 – C-372/16 (Sahyouni)) and require the Member States to provide their own solutions. As a recent ECJ decision has demonstrated, questions of the EU Regulations’ scope of application are becoming virulent also with regard to treaty PIL (ECJ 12 October 2023 – C-21/22 (OP)). Naturally, such decisions on the scope of the European instruments can only be taken on the European level – but they leave the other regulatory level with the burden of adapting to them and solving the resulting coordination problems.
Furthermore, the influence of European PIL is not limited to the European instruments’ actual – and often broadly interpreted – scope of application. Although formally unaffected, national and international PIL rules increasingly have to adjust to the ever-growing domination of European regulatory concepts and values. Apart from the practical need for the Member States to adapt their remaining national PIL rules to their new European context in order to keep them functional, the demands of EU primary law put further pressure on the Member States. Again, the ECJ plays a central role, especially when questions of cross-border (status) recognition are at stake and national values are confronted with the fundamental freedoms (e.g. ECJ 2 June 2016 – C-438/14 (Bogendorff von Wolfersdorff); ECJ 5 June 2018 – C-673/16 (Coman)). In the interaction of treaty and convention conflict-of-laws rules with the EU Regulations, deviations from the European model prove to be practically and conceptually detrimental; combined with the political power of the EU, the development of treaty PIL is threatening to become dangerously dysbalanced.
As a German Habilitationsschrift, the monograph provides an in-depth analysis of the current state of the European harmonisation of PIL and shows that the approach to Europeanisation by individual EU Regulations has failed. EU PIL needs to reorient itself – either through self-constraint in a continued multi-level system, or through the courageous step towards a complete European Conflict-of-Laws Code.