On European PIL, Codification and (Simple) Better Law-Making
On 4 March 2025, Prof. Thomas Kadner-Graziano presented publicly on line the project of research and the achievements to date of the EAPIL’s Working Group on the Feasibility of a European Private International Law Act (to which I belong).
A few days earlier, the EAPIL blog had informed about an article of Prof. K. Boele-Woelki available on SSRN entitled The next step in the unification of private international law in Europe: should it be codification?, published in November last year. Further references can be found there to recent publications on the topic, such as Prof. C. González Beilfuss’s Reflexiones en torno a una eventual codificación del Derecho internacional privado europeo (Cuadernos de Derecho Transnacional, 2024). It can be claimed that, at least for the ‘invisible college’ of PIL scholars, the topic is recovering momentum.
The EAPIL project is the only ongoing attempt to draft a wide-ranging European Private International code (rather: act), understood as something different to a simple structured compilation of unchanged law.
Still, according to the Working Group’s name, the final goal of the project is not necessarily to produce a code (act). The key word is ‘feasibility’: the possibility that something can be made, done, or achieved, or is reasonable. In this regard, one could say that the Group follows the European Parliament resolution of 7 September 2010 on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. There, the Parliament encouraged the Commission ‘to review the interrelationship between the different regulations addressing jurisdiction, enforcement and applicable law’; it considered that ‘the general aim should be a legal framework which is consistently structured and easily accessible’ and that ‘for this purpose, the terminology in all subject-matters and all the concepts and requirements for similar rules in all subject-matters should be unified and harmonised (e.g. lis pendens, jurisdiction clauses, etc.).’ Eventually, it posited that ‘the final aim might be a comprehensive codification of private international law’ (italics added).
It is indeed known that no proposal for a binding EU PIL code or act, even partial or restricted, will be put forward by the Commission any time soon.
The reason does not lie with it rejecting ‘codification’ as a law-making method. Codification, as well as consolidation and simplification of legislation figure expressly in the Political Guidelines for the next European Commission 2024-2029, of 18 July 2024. ‘Codes’ exist in other areas of EU law, such as those regulating medicinal products for human use, or the movement of persons across borders. In principle, this kind of codification appears to be related to amendments to the original legislative measure: after a number of amendments by way of new acts, the whole is assembled in a single document ‘in the interests of clarity and rationality’. The word ‘code’ is sometimes used, though, to designate the outcome of a recast of an act in need of amendment, as it happened with the Union customs code.
As things stand, coming up with a text like the one the EAPIL Working Group has in mind would prove that codification of European PIL is feasible. A second step to bring such a code or act into being would be to convince the legislator that it is not only convenient, but also needed and worth the effort and the investment. An impact analysis of non-economic and, above all, economic advantages would be required. Such analysis falls outside the remit of the EAPIL Working Group and , to the best of my knowledge, has not yet been done. Neither the study commissioned by the European Parliament ‘A European Framework for Private International Law: Current Gaps and Future Perspectives’ (2012) nor the workshop organized for the JURI committee ‘Towards a European Code on Private International Law? In -Depth Analysis for the Committee on Legal Affairs of the European Parliament’ (2014) addressed the point.
A report drawn up in 2013 by the European Added Value Unit of the Directorate for Impact Assessment and European Added Value, aimed at quantifying the cost of not having a Code on Private International Law. However, this ‘Cost of non-Europe’ report, based on a study by Nick Bozeat, mainly identified areas directly related to the citizens’ day-to-day lives which, at the time (and today), were still unregulated at European, in order to provide an estimation of the related costs for said citizens – around €138 million a year.
Assuming numbers confirmed that a codification of EU PIL is a sound policy option, there would be other obstacles to surmount for it to become a reality. The transactions and legal relationships falling under the scope of PIL rules are not a priority focus for the second half of this decade, neither at the political level nor for the lawmaker. Concern for cross-border civil and commercial matters, particularly those related to family, fits probably better with periods of calm and stability.
In theory, the time is ripe for a legislative proposal aimed at improving the regulatory environment for said matters. To start with, after the 2015 assessment on the implementation of the 2003 Inter-institutional Agreement on better law-making, new better regulation guidelines and a new Better regulation toolbox were respectively published in 2021 and 2023. Secondly, as already hinted, the Political Guidelines for the next European Commission 2024-2029, of 18 July 2024, proclaim the will to ‘make proposals to simplify, consolidate and codify legislation to eliminate any overlaps and contradictions while maintaining high standards’.
As a follow up, last February the Commission published its communication Simpler and Faster Europe. Communication on Implementation and Simplification. Indeed, the 2025 Commission work programme has a stronger focus on simplification than ever before. However, the Omnibus packages and the other simplification proposals listed (although non-exhaustively) in the above-mentioned Communication are meant to tackle specific priority areas, which, according to the Communication, have been identified with stakeholders over 2024.
None of them connects directly with the legal issues dealt with in the currently in force PIL regulations, or in the one(s) in the making. An indirect association is also far from evident. Only with good will, some PIL rules could be linked to the motto ‘Making business easier’ to which the quote of the Political Guidelines reproduced above corresponds.
Against this background, the task and findings of the EAPIL Working Group could be of a practical use in a different way. Code or no code, it is always legitimate to expect from the Commission, the EU Parliament and the Council that they care for consistency among the legal instruments they propose and adopt.
To this effect, formulae like (by way of example) recital 21 and Article 2, paragraph 3 of Directive 2020/1828 on representative actions for the protection of the collective interests of consumers, are clearly not enough. The interface between the Directive and the Brussels I bis regulation has been put to the test before the Court of Justice in case C-34/24, but the potential difficulties it generates do not stop there. In order to establish the exact terms of the relationship between both instruments it is necessary to consider as well the acts listed in Annex I to the Directive: while some of them express their intention to apply without prejudice to Regulation No 1215/2012, others indicate the opposite (see, for instance, recital 80 of Directive (EU) 2019/770 on certain aspects concerning contracts for the supply of digital content and digital services, and recital 147 of the GDPR).
More sophisticated solutions are viable and actually being implemented. An example is the proposed Directive to harmonise certain aspects of insolvency law. Said proposal, of 7 December 2022, aims to encourage cross border investment within the single market through targeted harmonisation of insolvency proceedings. It was published after stakeholders consultation, and is preceded by several studies, one of them (not publicly available, to the best of my knowledge) assessing abusive forum shopping practices in insolvency proceedings after Regulation (EU) 2015/848.
In principle, nothing new there. More interesting is the fact that the proposal and the impact assessment led to critical comments from the Regulatory Scrutiny Board, an independent body within the Commission that examines the quality of impact assessments, replacing the former Impact Assessment Board and being endowed with a strengthened role. The Board concluded in its first opinion on 24 June 2022 that adjustments were necessary before proceeding further with this initiative. Among other, more extensively explanations of the differences between Regulation (EU) 2015/848 and the Commission’s proposal were required.
In line with it, the Directive proposed by the Commission acknowledges the existence of Regulation (EU) 2015/848 on insolvency proceedings and connects both instruments (see recital 2, Articles 20, 45, 59, 68). It is therefore admitted that even if the Regulation has no impact on the contents of national insolvency law, it is a) possible to build on it for harmonization purposes and, b) clashes with the Directive may exist. The Partial general approach of the Council, dated November 29, 2024, insists on creating bridges between the texts, and clarifies some of the links between them (see recital 2 , Article 2, Article 36, and, in particular, recutal 58 and Article 68).
Regulation (EU) 2015/848 is not the only EU legal act which the proposed Directive takes into account. The final product and how the ‘dialogue’ among instruments will fare in practice remain to be seen. In any case, the law-making process shows already a refined and cautious attitude in that it accords relevant weight to systemic coherence.
It is in this context that I see the added value of a project such as the EAPIL one on the feasibility of a European PIL Act. Whatever its final conclusion (that is to say, even if it ends up denying the feasibility of the Act as such), it will map the areas where systemic coherence is more needed, indicate whether achieving it is or not possible, and if yes, how. Because of the wide material reach of the project and the thorougness of the research, it will fill an existing gap. It can thus provide precious support to the European lawmaker both in the drafting of new limited-in-scope PIL rules, and in producing an all-inclusive recast of the current ones, if and when, in his view, the time comes.