Everything You Always Wanted to Know about Conflit Mobile in EU PIL

This post was written by Felix M. Wilke (Full Professor at the EBS University Law School, Oestrich-Winkel, Germany). He was granted prior access to the book reviewed here.

Just recently, German publishing house Nomos made available “Statutenwechsel und Gerichtsstandswechsel” by Christoph Gramlich-Altenburg, a book on the conflit mobile under Rome I, Rome II, and Brussels Ibis. It is based on the author’s PhD thesis accepted by the University of Konstanz (Germany) and is also available open access here. Non-German speakers will be delighted to learn that it comes with a sizeable English summary (pp. 691–722).

A Tome of Substantial Proportions

Already from the page numbers just mentioned it should be obvious that this is an extensive tome: 722 pages plus bibliography. It comes with a table of contents comprising a whopping 42 pages –  an indication of just how detailed and nuanced Gramlich-Altenburg’s treatment of the topic is. The book formally has three main parts: one on the conflit mobile under Rome I and Rome II, one on the conflit mobile under Brussels Ibis, and one providing a comparative summary. The third part is relatively short, however; underwhelming even. But that verdict must be seen against the background of the very impressive rest of the book.

Mapping the Dynamics of Change

Gramlich-Altenburg comes up with a persuasive theoretical framework for his topic. He starts off with the usual tripartite structure of (independent) conflict-of-laws rules and then refines it to highlight the importance of personal and temporal elements usually not mentioned explicitly (p. 59 et seq.). He stresses that a conflit mobile generally can occur when there are changes to the subject matter, connecting factor, or “connecting person” over time. He goes on to distinguish different scenarios. First, a conflit mobile can be excluded where any change to the pertinent element is impossible (e.g., changing the location of immovable property). Apart from that, connecting elements can (or cannot) change due to an express rule or an implicit norm. The author’s initial model treats these two options as distinct categories (see p. 81), but they are actually a question of degree – a realization that quickly becomes apparent once he dives into the concrete application of Art. 8(3) Rome I (p. 85 et seq.).

I originally intended to give a (traditional) overview of everything that follows. But everything follows. If there is a potential conflit mobile with regard to any provision of Rome I, Rome II, and Brussels Ibis, chances are very high that the author covers it. Suffice it to highlight two particularly in-depth parts. For one, there is the author’s extensive and (as always) methodically sound analysis of Art. 19(3) Rome I (p. 105 et seq.); for another, there is his equally detailed discussion of the requirement of “directing activities” under Art. 17(1)(c) Brussels Ibis (p. 445 et seq.), to which he later adds a very close look at how changes of the consumer’s domicile affect this requirement (p. 539 et seq.). In the latter context (but of course also passim), readers of this blog will encounter familiar CJEU case law such as mBank and Commerzbank (covered here).

The author ultimately proposes four rules with which the EU legislator could codify the conflit mobile as he has expounded it: one for each regulation analysed in the book (p. 347 et seq.; p. 414 et seq.; p. 661 et seq.) and an additional one for a potential “General Part” / “Rome 0” Regulation (p. 416 et seq.). They do not quite roll off the tongue, and while this is no prerequisite for a statutory rule, it certainly would have made them more attractive for the EU.

Unwavering Style and Uncompromising Length

Just like many connecting elements, so is Gramlich-Altenburg’s approach: unchangeable – always meticulous, always thorough. It makes the book generally easy (but not always fun) to read. In somewhat of a contrast to the rather mechanical style stands the author’s liberal use of the first person singular. I do not find this objectionable per se, because German legal authors tend to hide behind the use of the passive voice too much. Still, he deploys this device too frequently, especially in instances where no emphasis on the subjective nature of a statement is needed.

In some way, the book clearly is too long. More than 700 pages on the conflit mobile? Come on! Yet, on the other hand, I readily admit that I could not say which parts he could or should have significantly shortened or even left out. It is probably best to consider it more as a handbook than a typical monograph. I would not recommend to the readers of this blog to take the book with them on their summer vacation. But they simply must consult it when writing about changes over time in the context of European private international law.