Private international law and EU external relations:
Think local act global, or think global act local?
Alex Mills
*
Forthcoming, International and Comparative Law Quarterly (2016)
Author’s final manuscript, March 2016
Abstract
In the European Union, private international law has almost exclusively been developed through the
adoption of internal acts (particularly EU Regulations) in the pursuit of internal goals (principally,
enhancing the efficient functioning of the internal market, and more recently and broadly the construction
of an area of freedom, security and justice). This focus has and must come under challenge in light of two
developments. The first is the apparent establishment of EU exclusive external competence in the field of
private international law, creating the opportunity for external action by the EU. The second is the
increased recognition that internal action by the EU has external effects, which should be viewed not
merely as incidental but also as potentially instruments of external policy. In conjunction, these
developments demand consideration of what role private international law could and should play as part
of EU external relations. This article critically examines a range of possible techniques which might be
adopted in relation to this new external dimension of EU private international law. These methods are
not necessarily unique to private international law or the EU, and thus this article also provides a case
study of the range of legal techniques which can be used by international actors to project policies
externally.
I. Introduction
In the European Union, private international law has almost exclusively been developed
through the adoption of internal acts (particularly EU Regulations) in the pursuit of
internal goals (principally, enhancing the efficient functioning of the internal market, and
more recently and broadly the construction of an area of freedom, security and justice).
1
This article analyses the policy options open to the EU in terms of the ‘external’
dimension of private international law, looking at the potential role of private
international law in EU external relations. While it is focused entirely on EU private
international law, the methods examined are not necessarily unique to private
international law or the EU, and thus this article also presents a case study of the range of
*
Reader in Public and Private International Law, Faculty of Laws, UCL, a.mills@ucl.ac.uk. An early version of this
article was presented at a conference at the University of Ferrara in February 2015, and thanks go to Pietro Franzina
and the other organisers of and participants in that conference, and to Piet Eeckhout and Joanne Scott for
comments on a later draft.
1
Articles 67(1) and 81(2), Consolidated version of the Treaty on the Functioning of the European Union (2012) OJ
C 326/47, 26 October 2012 (henceforth, TFEU). See infra n 39 and n 84.
Private international law and EU external relations: Think local act global, or think global act local? 2
legal techniques which can be used by international actors to project policies
extraterritorially. There are, however, two main justifications for providing this analysis in
relation to EU private international law in particular, which correspond with two distinct
aspects of the analysis presented in this article.
First, in Opinion 1/13, a Grand Chamber decision issued on 14 October 2014, the
European Court of Justice confirmed that the European Union has exclusive external
competence in the field of private international law, at least in subject areas in which the
EU has exercised internal competence. While this Opinion related specifically to civil
aspects of international child abduction, the logic of the Opinion is (as argued in section
II below) just as (if not more) forcefully applicable in the general field of civil and
commercial disputes covered by the Brussels I Regulation (in relation to jurisdiction and
the recognition and enforcement of judgments) and the Rome I and II Regulations (in
relation to choice of law in contractual and non-contractual obligations). If it is accepted
that the EU has a broad exclusive external competence in this field, the next question
which arises is: what (if anything) should the EU do with this competence? Should the
EU now pursue its internal goals externally (aiming to increase the efficiency of the
‘external’ market, or to extend the area of freedom, security and justice beyond the
boundaries of the EU), or should it simply use its external competence as a further means
to pursue these goals internally, or should it pursue other goals altogether?
Second, it has become increasingly recognised that the internal rules of private
international law adopted in the EU may themselves have ‘external’ effects through their
impact on disputes or relationships which have connections with non-Member States.
These external effects have traditionally tended to be viewed as marginal or incidental
because of the focus on internal policy goals in the development of EU private
international law, but it will be argued that they are themselves potentially significant.
Understanding these effects opens up the possibility of using them intentionally through
careful design of private international law rules and exceptions. For example, the EU
might use private international law as a means of projecting policies extraterritorially by
limiting access to EU recognition unless a foreign law or judgment complies with certain
standards – a regulatory technique used (somewhat controversially) by the EU in other
contexts such as trade and environmental law.
2
Even the exercise of internal competence
thus involves the same policy questions and concerns noted above – while this exercise
should of course be primarily addressed to internal policy goals, it must also be asked
what external policy goals could or should the EU aim to achieve through the external
effects of its internal rules of private international law?
In summary, there are a variety of possible external policies which the EU might pursue
through private international law – a range of potential purposes for which private
international law may be used. This could involve ‘acting globally’, through participation
in the development of international law governing rules of private international law (as
explored in section III below), or it could involve ‘acting locally’, through the
2
See further section IV.B below.
Private international law and EU external relations: Think local act global, or think global act local? 3
development of EU private international law rules with targeted external effects (as
explored in section IV below). Each of these deserves careful analysis and consideration.
II. EU external competence in private international law
It has become increasingly difficult to resist the contention that the European Union has
exclusive external competence in at least most of the field of private international law.
The principle has long been laid down that exclusive external competence for the EU
may be derived from the exercise of internal competence, where the (potential or actual)
external rules ‘are of such a kind as to affect the Community rules’.
3
This is the case even
if those external rules are not directly inconsistent with Community (now European
Union) rules, but merely diminish uniformity by going further than those rules.
4
The ECJ
has emphasised, in fact precisely in the field of private international law (but setting out a
rule which is applicable more generally), that for external competence to arise, all that is
necessary is that the conclusion of an international agreement ‘is capable of affecting the
Community rules’.
5
For this to be the case, ‘it is not necessary for the areas covered by
the international agreement and the Community legislation to coincide fully’
6
; ‘the
assessment must be based not only on the scope of the rules in question but also on their
nature and content’
7
; and ‘[i]t is also necessary to take into account not only the current
state of Community law in the area in question but also its future development, insofar as
that is foreseeable at the time of that analysis’.
8
These principles have now been partially codified in the Treaty on the Functioning of the
European Union, Article 3(2) of which provides (in relevant part) that:
The Union shall also have exclusive competence for the conclusion of an
international agreement … in so far as its conclusion may affect common rules or
alter their scope.
9
Article 3(2) has recently been analysed by the ECJ in two decisions, each of which has
confirmed that the earlier case law continues to be relevant to its interpretation.
3
ECJ Opinion 2/91 on Convention No 170 of the International Labour Organization concerning safety in the use
of chemicals at work, at [26]; developing the principle established earlier in Commission v Council (‘ERTA Case’)
(1971) ECR 263, Case 22/70. See generally Geert de Baere, ‘Constitutional Principles of EU External Relations’
(Oxford University Press, 2008), p.43ff; Piet Eeckhout, ‘EU External Relations Law’ (Oxford University Press, 2
nd
edition, 2011), p.70ff.
4
ECJ Opinion 2/91, at [25], noting that ‘there is no contradiction between these provisions of the Convention and
those of the directives mentioned’.
5
ECJ Opinion 1/03 on the Competence of the Community to conclude the new Lugano Convention on
jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (henceforth, ‘Lugano
Opinion’), at [124]. See generally Fausto Pocar (ed), ‘The External Competence of the European Union and Private
International Law: The EC Court’s Opinion on the Lugano Convention’ (Wolters Kluwer Italia, 2007).
6
Ibid., at [126].
7
Ibid.
8
Ibid.
9
Article 3(2), TFEU.
Private international law and EU external relations: Think local act global, or think global act local? 4
First, in relation to the negotiation of an international agreement relating to broadcasting
rights, the ECJ emphasised that exclusive external competence is justified by ‘a risk that
common EU rules might be adversely affected by international commitments, or that the
scope of those rules might be altered’
10
, which ‘does not presuppose that the areas
covered by the international commitments and those covered by the EU rules coincide
fully’
11
, but may arise ‘within an area which is already largely covered by such rules’,
12
even if ‘there is no possible contradiction between [potential Member State]
commitments and the common EU rules’.
13
The second case in which Article 3(2) of the TFEU has recently been interpreted by the
ECJ is Opinion 1/13, which directly relates to the field of private international law. The
Court held that the EU must have exclusive competence to decide whether to accept the
accession of a third state (a non-EU Member State) to the 1980 Hague Convention on
the civil aspects of international child abduction, otherwise ‘there would be a risk of
undermining the uniform and consistent application’
14
of the Brussels IIbis Regulation.
15
Pursuant to this decision, the EU has recently exercised this competence by authorising
certain Member States to accept the accession of Singapore and Andorra to the
Convention.
16
These developments in the rules governing EU exclusive competence are controversial,
both legally and politically. But on the basis of these authorities, there is a clear case that
the EU must have exclusive external competence in other areas of private international
law.
17
In the context of jurisdiction and the recognition and enforcement of judgments,
for example, at present the EU rules set out in the Brussels I Regulation
18
do not
(generally
19
) govern jurisdiction regarding claims against non-Member State defendants or
the recognition and enforcement of non-Member State judgments. Those matters are left
10
Commission v Council (Judgment) [2014] EUECJ C-114/12 (04 September 2014), at [68].
11
Ibid., at [69].
12
Ibid., at [70].
13
Ibid., at [71].
14
ECJ Opinion 1/13 (14 October 2014), at [89].
15
Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and
enforcement of judgments in matrimonial matters and the matters of parental responsibility, OJ L 338/1, 23
December 2003.
16
Council Decisions 8933/15 and 8935/15, 5 June 2015. Somewhat controversially (at least in the sense that the
European Commission issued a statement objecting), the decision only applies on behalf of those Member States
which had not previously indicated (unilaterally) their acceptance of Singapore and Andorra’s accession to the
Convention, even though the ECJ concluded that such acts by Member States were contrary to EU law. The basis
for this approach is presumably (and as suggested by Recital 12 of the Decision) a concern that such acts, even if
invalid as a matter of EU law, might nevertheless have been valid as a matter of public international law, as this
limitation on the competence of Member States was not ‘objectively evident’ prior to ECJ Opinion 1/13 – see
Article 46 of the Vienna Convention on the Law of Treaties (1969).
17
On this issue, see generally Pocar (2007), supra n 5.
18
Most recently, Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December
2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ
L 351/1, 20 December 2012 (henceforth, ‘Recast Brussels I Regulation 2012’).
19
With the exception of the rules on exclusive jurisdiction under Articles 24 and 25. Article 26 does not clearly state
whether it applies regardless of the domicile of the defendant, but (although the point is somewhat debated) its
omission from mention in Article 6 would suggest that it does not. See further eg James Fawcett and Janeen M.
Carruthers, ‘Cheshire, North and Fawcett Private International Law’ (Oxford University Press, 14
th
edn, 2008), at
p.297.
Private international law and EU external relations: Think local act global, or think global act local? 5
to national law, and can evidently be amended by national law-making bodies, and so it
might be thought that Member States could equally enter into international agreements
which affected only these national rules. Although the ECJ already held in 2006 that the
EU had exclusive competence to enter into the Lugano Convention, as noted above,
20
that might be considered a special case as that Convention was intended to extend the
systemic effects of the Brussels I Regulation,
21
which would not necessarily be the case
for other private international law agreements. However, it is evident that any such
exercise of external competence would have an impact on the scope of obligations under
the Brussels I Regulation (even more so now under the Recast Brussels I Regulation
2012
22
than under the Brussels I Regulation 2001
23
), in three major ways.
First, under the Recast Brussels I Regulation 2012 (as under the Brussels I Regulation
2001) Member States are under an obligation to recognise and enforce judgments from
other Member States, subject to limited safeguards or defences. That obligation applies
irrespective of whether the judgment court took jurisdiction based on the Brussels I
Regulation rules or based on its residual national rules of jurisdiction,
24
and the
jurisdiction of the judgment Court may not be questioned (except for disputes
concerning subject matter which attracts exclusive jurisdiction under the Regulation
25
).
(As discussed further below, this has the well-known and curious side effect that those
national rules of jurisdiction have been made more powerful under the Regulation, to the
significant disadvantage of non-EU domiciled parties.
26
) As a consequence, the national
rules of jurisdiction of each Member State directly affect the ‘scope’ of the obligations of
each other Member State. For example, any change in the French national rules of
jurisdiction governing claims against non-EU domiciled parties (which might be required
if, for example, France entered into an international convention with the home state of
such parties) would affect the ‘scope’ of UK obligations (under EU law) to recognise and
enforce French judgments. The argument here is not that the obligation itself would
change, but that the extent, meaning or content of the obligation would be affected,
because it is dependent on elements of national law which could be altered through an
international commitment entered into by an individual Member State. As discussed
above,
27
the ECJ has held that it is sufficient that the ‘scope’ of an EU law obligation be
20
Supra n 5.
21
See the Lugano Opinion, supra n 5, at [152]ff.
22
Supra n 18.
23
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters, OJ L 12/1, 16 January 2001 (henceforth, ‘Brussels I Regulation
2001’).
24
See further eg Fawcett and Carruthers (2008), supra n 19, at p.224, p.599; this is now set out in Recital 27 of the
Recast Brussels I Regulation 2012.
25
See Article 45(1)(e)(ii). This does not, however, appear to permit a defence to be raised if the claim has equivalent
connections with non-Member States – a French judgment concerning title to New York immovable property
would apparently be enforceable in the English courts. This phenomenon follows from the lack of consideration of
connections with non-Member States under the jurisdictional rules, a problem highlighted in section IV.A below –
although if the rules of subject matter exclusive jurisdiction are given reflexive effect, the problem should not arise
in practice.
26
See further eg Arthur Taylor von Mehren, ‘Recognition and Enforcement of Sister-State Judgments: Reflections
on General Theory and Current Practice in the European Economic Community and the United States’ (1981) 81
Columbia Law Review 1044; Koji Takahashi, ‘Review of the Brussels I Regulation: A Comment from the Perspectives
of Non-Member States (Third States)’ (2012) 8 Journal of Private International Law 1.
27
See supra n 10.