Cases and Materials on EU Private International Law

1336 Pages·2011·9.97 MB·English

by  Stefania Bariatti

CASES AND MATERIALS ON
EU PRIVATE INTERNATIONAL LAW
Since the Amsterdam Treaty of 1997 empowered the EC to adopt rules in the fi eld of
confl icts of laws, legal instruments have been adopted that provide common rules on
issues that touch upon the day-to-day life of European citizens. Th ere are now instruments
covering jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters, family matters and maintenance obligations, and the law applicable
to contractual and non-contractual obligations, legal separations and divorces. Th ere
are also acts establishing swift procedures for recovering claims abroad, ie the European
Enforcement Order, the European Order for Payment Procedure and the European Small
Claims Procedure, and acts regulating cross-border insolvency proceedings and judicial
assistance in the fi eld of service of documents, taking of evidence and access to justice.
Th is long list of EU legislation is not exhaustive of EU confl icts of laws rules: numerous
further provisions are scattered among other EU legislation, eg directives on consumer,
labour and insurance contracts; company law; IP rights; securities; privacy; and so on.
Besides this the European Court of Justice has issued many judgments addressing relevant
aspects of the confl ict of laws found in the acquis communautaire in this fi eld. Th is book,
which assembles all the relevant EU legislation and ECJ decisions in one place, provides a
guide to the maze of legal instruments now in place, supplemented by brief commentaries
identifying the leading principles and anticipating future developments.
Volume 4 in the series Studies in Private International Law
Studies in Private International Law
Volume 1: Electronic Consumer Contracts in the Confl ict of Laws
Sophia Tang
Volume 2: Foreign Currency Claims in the Confl ict of Laws
Vaughan Black
Volume 3: Jurisdiction and Judgments in Relation to EU Competition Law Claims
Mihail Danov
Volume 4: Cases and Materials on EU Private International Law
Stefania Bariatti
Cases and Materials
on EU Private
International Law
Stefania Bariatti
Published in the United Kingdom by Hart Publishing Ltd
16C Worcester Place, Oxford, OX1 2JW
Telephone: [phone]
Fax: [phone]
E-mail: [email protected]
Website: http://www.hartpub.co.uk
Published in North America (US and Canada) by
Hart Publishing
c/o International Specialized Book Services
920 NE 58th Avenue, Suite 300
Portland, OR 97213-3786
USA
Tel: [phone] or toll-free: (1) 800 944 6190
Fax: [phone]
E-mail: [email protected]
Website: http://www.isbs.com
© Stefania Bariatti 2011
Stefania Bariatti has asserted her right under the Copyright, Designs and Patents Act 1988, to be identifi ed as
the author of this work.
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any means, without the prior permission of Hart Publishing, or as expressly
permitted by law or under the terms agreed with the appropriate reprographic rights organisation. Enquiries
concerning reproduction which may not be covered by the above should be addressed to Hart Publishing
Ltd at the address above.
British Library Cataloguing in Publication Data
Data Available
ISBN: 978-1-84946-027-9
Typeset by Columns Design XML Ltd, Reading
Printed and bound in Great Britain by
TJ International Ltd, Padstow, Cornwall
Studies in Private International Law
Series Editors’ Preface
For even the most dedicated private international law scholar or practitioner, it has become
increasingly diffi cult to keep up in recent years with the tidal wave of EU legislation and
judgments of the ECJ that impact upon the discipline. Ever more fi elds are the subject of
harmonised rules of private international law in the European Union, or proposals for
harmonisation. As the ambit and infl uence of those harmonised rules develops, so the
role of national rules of private international law is diminished.
In compiling this volume, Professor Stefania Bariatti, a leading fi gure in the fi eld
of private international law, has performed an outstanding service for those engaged in
the study and practice of private international law. Professor Bariatti has assembled and
catalogued a remarkable range of cases and materials covering the panoply of private
international law matters which have been subject to harmonisation at a European
level. Beginning with a most interesting chapter in which Professor Bariatti charts the
development of EU private international law and refl ects upon its future directions, the
author goes on skilfully to organise, present and analyse a vast array of materials in a
format that is extremely accessible to the reader.
Professor Bariatti includes extremely helpful summaries and extracts of ECJ
judgments, including the numerous rulings on the interpretation of the Brussels I
Regulation, which are organised by reference to the Article or Articles to which they
relate. Th ere are also chapters covering such matters as: the law applicable to contractual
obligations; the law applicable to non-contractual obligations; insolvency; companies;
rights in rem, securities and intellectual property; social security; personality rights, status
and family relations; succession; and judicial assistance in civil matters.
Th e book addresses other initiatives that may infl uence the application of European
rules of private international law. It includes Regulations and Directives in relation to
particular matters that aff ect the operation of European rules of private international law.
It also incorporates international conventions to which Member States are parties and
which aff ect the application of European rules of private international law. Th e author
also considers in some detail the impact of general principles of European law, such as the
concept of citizenship, the protection of fundamental rights and the role of public policy
and overriding mandatory provisions.
Th e author has incorporated recent developments in European private international
law, including, most notably, the Commission Proposal of 14 December 2010 to reform
the Brussels I Regulation. Th e author refl ects that the proposed extension of the Brussels
I Regulation generally to defendants domiciled in non-Member States, coupled with the
universal scope of other recent harmonisation initiatives, suggests that, in the future, all,
or almost all, aspects of private international law will be the subject of European rules.
v
vi Series Editors’ Preface
Professor Bariatti has produced an indispensible resource and we are delighted to
welcome Cases and Materials on EU Private International Law to the Studies in Private
International Law series.
Paul Beaumont (University of Aberdeen)
Jonathan Harris (University of Birmingham)
21 March 2011
Preface
Th is book aims primarily to provide a support for university courses on private
international and EU law, as well as an instrument for practitioners who face confl icts of
laws issues in their day-to-day legal practice. Th e development of EU legislation in this
fi eld has aff ected the competence of national legislatures and has substantially reduced
the scope of domestic law. A considerable number of provisions have been adopted and
are scattered throughout many legislative instruments based upon Article 81 TFEU
or on other provisions of the Treaty (directives on consumer, labour and insurance
contracts, company law, IP rights, securities, privacy, and so on). Moreover, the European
Court of Justice has issued many interpretative judgments that concur with the acquis
communautaire in this fi eld.
Th e cases and materials are presented in chapters, devoted to specifi c issues or
relationships. An introduction provides an overview of the development of the competence
of the European Union, from Article 220 of the EEC Treaty to Article 81 of the Treaty
on the Functioning of the European Union, and of its external dimension, as well as a
preliminary tentative assessment of the principles and solutions adopted in respect of the
general issues of private international law for further discussion.
I wish to express my gratitude to the team of young scholars who – aft er two Italian
editions in 2002 and 2009 – have helped me in preparing this English edition, Professor
Carola Ricci, PhD Serena Crespi, PhD Giuseppe Serranò and Dr Eva De Goetzen.
Comments and suggestions by readers will be most welcome and will help in limiting
errors and gaps in a new edition.
Stefania Bariatti
Milan, 20 December 2010
vii

Table of contents
Series Editors’ Preface v
Preface vii
Table of EU Cases (Chronological) xlix
Table of EU Cases (Alphabetical) lv
Table of Legislation lxi
Th e Development of EU Private International Law: Instruments,
Principles, Rules 1
1. Cooperation in the Field of Justice and Home Aff airs Under the Treaty of
Maastricht 1
2. Th e Area of Freedom, Security and Justice in the Treaty of Amsterdam 3
3. Judicial Cooperation on Civil Matters in the Treaty of Lisbon 5
4. Th e Type of Acts to be Adopted on the Basis of Article 81 TFEU 6
5. Th e Procedure for the Adoption of Acts Based upon Article 81 TFEU 7
6. Th e Judicial Control over Acts Based upon Article 81 TFEU 8
7. Th e Position of Certain Member States and Enhanced Cooperations 10
8. Th e Scope of Judicial Cooperation on Civil Matters: Actions Already
Performed and Plans for the Future 12
8.1. Th e Vienna Action Plan of 1998 13
8.2. Th e Conclusions of the European Council at Tampere (1999) 14
8.3. Th e Draft Programme of 2000 16
8.4. Th e Hague Programme of 2004 19
8.5. Th e Stockholm Programme of 2009 20
9. Th e Relationship of Article 65 EC and Article 81 TFEU with other
Provisions of the Treaty 22
9.1. Th e Relationship with Article 293 EC 22
9.2. Th e Relationship with Article 114 TFEU (Formerly Article 95 EC) 23
10. Th e Confl ict-of-Law Rules Set Out in Acts Based upon Other Provisions of the
TFEU 25
11. Th e ‘Cross-Border Implications’ of Judicial Cooperation in Civil Matters 29
12. Th e External Dimension of EU Activities in the Field of Private
International Law: Th e Relationships with Th ird Countries 31
12.1. Th e ECJ Case-Law on External Powers 31
12.2. Th e Vienna Action Plan of 1998 32
12.3. Th e Hague Programme and the ECJ Opinion Concerning the Lugano
Convention 35
12.4. Th e New Procedures for the Negotiation and Conclusion of Agreements
between the Member States and Th ird Countries 37
12.5. Th e Extent of EU External Powers in case of Treaties on
Confl icts-of-Laws and on Judicial Assistance 38
12.6. Th e Accession to the Hague Conference on Private International
Law and Declarations of Competence 40
ix