Syllabus
The course consists of 4 lectures each of 2 hours (March 18 - 21, 2024 from 12:00 - 14:00, Room 213)
* Lecture 1
The first lecture will: i) recapitulate the basic principles of private international law (Jurisdiction - which court is competent to hear the case? Applicable law - what national law applies? Is national court obliged to apply rules on applicable law even if neither party pleads a foreign law, how is content of foreign law proved? Recognition, declaration of enforceability (exequatur, Vollstreckbarkeitserklärungsverfahren) and enforcement (exécution, Zwangsvollstreckung) (distinction between these concepts, gradual abolition of intermediate stage of declaration of enforceability; ii) trace the development of the powers in the EEC, EC and EU Treaties to adopt legislation in this field (from Rome to Lisbon, via Maastricht, Amsterdam and Nice).
* Lecture 2
The second lecture will: i) give a bird’s eye view of the legislation in this field, how it has developed under the various regimes and the way in which it is still evolving; ii) examine the common themes, such as mutual trust/mutual recognition, compliance with fundamental rights (and the tension between these two themes), parallelism (i.e. interpreting identical expressions used in different Regulations in a consistent way), access to justice, the protection of weaker parties, non-interference with Member States’ pre-existing obligations vis-à-vis third countries and co-existence within wider international context (in particular relationship with Conventions of the Hague Conference on Private International Law and other widely applied multilateral conventions)
* Lectures 3 and 4
The second group of lectures will focus on the role of the CJEU in interpreting the acquis in this field.
Lecture 3 will: i) recapitulate the role of the preliminary reference procedure under Article 267 TFEU and the importance of that procedure in the context of interpreting EU law generally; ii) look at the themes that underlie the acquis in this field (which have been covered in lecture 2) and analyse how the CJEU interprets them in particular cases.
Lecture 4 will focus on the family law acquis and analyse common themes.
It will examine the approach of the CJEU to interpretation in the field of family law, which is scattered among various Union law instruments (mainly the Brussels II Regulations, the Rome III Regulation and the Maintenance Regulation, but also the Matrimonial Property Regime and Registered Partnership Regulations) and international conventions (mainly the 1980 Abduction Convention and the 1996 Child Protection Convention).
It will pay particular attention to the following themes, namely the habitual residence of spouses and of children (which is the most widely used connecting factor in this field), the best interests of children (which is the underlying theme of the Brussels IIb Regulation and the 1996 Convention), the definition of civil matters as opposed to public law matters (important where coercive measures are taken for the child’s protection against the will of the parents or child) and the interrelationship between parental responsibility matters and child abduction.
The preliminary reference procedure, Article 267 TFEU, authorises all national courts to refer questions of interpretation of EU legislation to the CJEU. The CJEU has given judgment in around 500 cases of interpretation of the EU acquis in this field.
The course will examine the following themes that appear in the case law, namely the parallelism of the interpretation of related instruments, the predictability of application of the rules, the concept of “court” entitling judgments to system of simplified recognition and party autonomy.
Annotation
The European Union, and before it the European Community, has been active in the field of private international law since the signing of the 1968 Brussels Convention on jurisdiction and enforcement in civil and commercial matters which came into force into 1973. There is a link between this convention in the internal market in that it facilitates legal redress and the enforcement of judgments in cases of cross-border disputes.
Prior to the ratification of this convention, Member States adopted very different approaches to the recognition and enforcement of foreign judgments. At one extreme, some Member States would enforce foreign judgments only if a recognition agreement with the relevant foreign State, others were more liberal and enforced such judgments provided that there was an objective link between the judgment debtor and the foreign jurisdiction (e.g. habitual residence, prior agreement as to or submission to the foreign jurisdiction). As regards the content of the judgment, some States would enforce only if their courts would have come to the same conclusion on the same facts (thus reviewing the substance of the judgment) whereas others were more liberal and would enforce the content subject to a verification that the enforcement of the judgment would not infringe public policy.
The Convention was, for its time, extremely liberal. In the first place, it introduced uniform rules on international jurisdiction where defendant is domiciled in a Member State and outlawed exorbitant jurisdiction against such defendants). In the second place, it provided for virtually automatic recognition of judgments of a court of another
Member State and a simplified method of declaring such judgments enforceable (exequatur), with very few possibilities of refusing enforceability. It is forbidden to examine whether the court of origin had jurisdiction or to review the judgment as to substance. The Convention thus embodies the principle of mutual trust, which now underlies all the acquis in this field.
Subsequent changes to the Convention, including converting it into a Regulation and some changes of substance have left the basic structure intact; however, the intermediate stage of exequatur has been abolished, albeit the grounds that could have been invoked against exequatur can now be invoked at the stage of enforcement.
Since the entry into force of the Amsterdam Treat in 1999, more general powers have existed to enact instruments in the field of private international law. Those powers were expanded and clarified in the Lisbon Treaty. The Union has also enacted rules on the law to be applied by courts having jurisdiction and has expanded the area of legislation beyond the civil and commercial field to embrace procedural law, family law and successions.
The course will be taught by Michael Wilderspin, a former legal adviser to the European Commission (2002-2021) with special responsibility for private international law since 2008, handling numerous cases on private international law issues to the European Court on behalf of the Commission.