EUROPEAN PRIVATE INTERNATIONAL LAW Ester di Napoli LUMSA University, Rome 9 and 10 October 2019 dnpstr@unife.it

EUROPEAN PRIVATE INTERNATIONAL LAW? WHY EUROPEAN PRIVATE INTERNATIONAL LAW? European Private International Law and (substantial) European Law Sources of Private International Law: 1. International Law (international treaties / conventions) 2. National Law 3. European Private International Law / supranational law (EU regulations and directives)

1. International Law International convention dealing with PIL in civil and commercial matters take precedence over national law: a) International (bilateral and multilateral) conventions (database ATRIO – Archivio dei Trattati Internazionali Online: itra.esteri.it) e.g. 1968 Brussels Convention; 1980 Rome Convention; 2007 Lugano Convention b) Commission Internationale de l’état Civil: http://ciec1.org c) Hague Conference on Private International Law (HCCH): www.hcch.net

2. National Law - Statutory systems: e.g. Legge 31 maggio 1995, n. 218 di riforma del sistema italiano di diritto internazionale privato (Italy); Loi 16 juillet 2004 portant le Code de droit international privé (Belgium); the Serbian Act on The Law on Resolution of Conflict of Laws with Regulations of Other countries (1982/2006); German Introductory Act to the Civil Code (EGBGB); new Hungarian Private International Law Act (Act XXVIII of 2017, in force on 1 January 2018); Spanish Civil Code - Chapter IV (Rules of private international law) - Non-statutory systems: e.g. France

3. EUROPEAN PRIVATE INTERNATIONAL LAW / SUPRANATIONAL LAW Primacy of EU Law over national law Coordination with international conventions dealing with the same topic Where we were: 1968 Brussels Convention (art. 220 TEC) 1980 Rome Convention (outside the scope of art. 220 TEC) «parallel» Lugano conventions (1988 and 2007) From the Treaty of Amsterdam (1997) ... The so-called process of «Europeanization» of Private International Law Title IV Articles 61-67 of the EC Treaty 

3. EUROPEAN PRIVATE INTERNATIONAL LAW … where we are (specific competences attributed to the EU in civil and commercial matters): the Treaty of Lisbon (2009): Title V, «Area of Freedom, Security and Justice» (AFSJ), Article 67 of the Treaty on the Functioning of the European Union (TFEU): ”1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States. 2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals. For the purpose of this Title, stateless persons shall be treated as third-country nationals. 3. The Union shall endeavour to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation between police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws. 4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters”.

3. EUROPEAN PRIVATE INTERNATIONAL LAW Article 81 of the TFEU: «1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States. 

3. EUROPEAN PRIVATE INTERNATIONAL LAW  2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: (a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; (b) the cross-border service of judicial and extrajudicial documents; (c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; (d) cooperation in the taking of evidence; (e) effective access to justice; (f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States; (g) the development of alternative methods of dispute settlement; (h) support for the training of the judiciary and judicial staff.

3. EUROPEAN PRIVATE INTERNATIONAL LAW  3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament. The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament. The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision».

3. EUROPEAN PRIVATE INTERNATIONAL LAW European legislative instruments adopted in the field of judicial cooperation in civil and commercial matters (which has a broad meaning, comprehensive of the field of family law with cross-border implications): - regulation (EC) n. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters («Bruxelles I»), now «subsituted» by regulation (EU) n. 1215/2012 («Bruxelles I bis»); - regulation (EC) 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters; - regulation (EC) n. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility («Bruxelles II bis»); - regulation (EC) n. 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents); - regulation (EC) n. 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations ;

3. EUROPEAN PRIVATE INTERNATIONAL LAW - regulation (EC) n. 861/2007, establishing a European Small Claim Procedure; - regulation (EC) n. 805/2004, creating a European Enforcement Order for uncontested claims; - regulation (EC) n. 1896/2006 creating a European Order for Payment procedure; - regulation (EC) n. 593/2008 on the law applicable to contractual obligations («Rome I»); - regulation (EC) n. 864/2007 on the law applicable to non-contractual obligations («Rome II»); - regulation (EU) n. 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession; - regulation (EU) n. 606/2013 on mutual recognition of protection measures in civil matters; - regulation (EU) n. 655/2014 establishing a European Account preservation order procedure to facilitate cross-border debt recovery in civil and commercial matters («EASO») - regulation (EU) 2015/848 on insolvency proceedings; - regulation (EU) 2016/1103 on matrimonial property regimes; - regulation (EU) 2016/1103 on the property consequences of registered partnerships - regulation (EU) 2016/1191 on promoting the free movement of citizens by simplifying the requirements for presenting certain public documents in the European Union.

A «TWO-SPEED EUROPE» - The position of UK and Ireland (opting in) – Protocol n. 21 - The position of Denmark (opting out) – Protocol n. 22 - Family matters - The enhanced cooperation mechanism (article 326 ff.): Regulation (EU) n. 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation («Rome III») Regulation (EU) 2016/1103 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes; Regulation (EU) 2016/1104 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in the matters of the property consequences of registered partnerships.

EU private international law: specific questions - Article 288 of the TFEU: regulations - general application, binding in its entirety and directly applicable in all Member States; - Uniform / autonomous interpretation (characterization) given by the CJEU (article 267 TFEU); Incidence of the EU Charter on fundamental rights (mainly in the field of family law); Towards a «European» public policy? Towards a «system» of EU PIL?

EU PRIVATE INTERNATIONAL LAW The expressions contained in EU instruments adopted in the field of civil and commercial matters need to be interpreted in a uniform way and consistently among EU regulations («inter-textual interpretation») Example: recital 7of Rome I Regulation «The substantive scope and the provisions of this Regulation should be consistent with Council Regulation (EC) n. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) and Regulation (EC) n. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II)»

The european e-justice portal https://e-justice.europa.eu / https://beta.e-justice.europa.eu/home?action=home The Portal is maintained by the EU Commission, and it provides information on Member States’ legal systems, case law, in 23 languages. You may also find a lawyer / a notary in another Member State. The Portal is the outcome of the European Judicial Network in civil and commercial matters (EJN-civil), which is a flexible, non-bureaucratic network which brings together national judicial authorities. It aims to simplify and strengthen judicial cooperation between Member States. In operation since 2002, the EJN-civil improves the practical application and implementation of EU civil justice instruments. In such way, it contributes to building bridges between the different justice systems of the Member States and thereby creating mutual trust

The european e-justice portal https://beta.e-justice.europa.eu/home?action=home In particular, the European Judicial Atlas in civil matters: conceived to be a future one-stop-shop in the area of practical information concerning judicial cooperation in civil matters List of regulations adopted according to Article 81 of the TFEU Practical summary of all the regulations Standard («dynamic») forms

In particular: the hague conference on private international law (125th Anniversary) The World Organization for Cross-Border Co-operation in Civil and Commercial Matters 83 members, 82 States + the European Union (REIO – Regional Economic Integration Organization): https://www.hcch.net/en/states/hcch-members The European Community became a member of the Hague Conference on 3 April 2007. With the entry into force of the Treaty of Lisbon on 1 December 2009, the European Union replaces and succeeds the European Community as from that date Coordination between EU PIL instruments and the “Law of the Hague” (example: regulation 4/2009; and reg. 1215/2012 and the 2005 Hague Convention)

PRIVATE INTERNATIONAL LAW AS A DROIT SAVANT Doctrine Hague Academy of International Law (Recueil des cours) PIL blogs Conflict of laws.net: http://conflictoflaws.net/ SIDIBlog: http://www.sidiblog.org/ Conflictus legum: http://conflictuslegum.blogspot.com/ CROSSBORDER: https://crossborder.live/

THE “BRUSSELS SYSTEM” Regulation (EU) n. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (“Brussels I bis” or “Brussels I recast”) Regulation (EC) n. 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (“Brussels I”) Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (“Brussels Convention”)

THE 1968 BRUSSELS CONVENTION Art. 220 TEEC: «Member States shall, in so far as necessary, engage in negotiations with each other with a view to ensuring for the benefit of their nationals: - the protection of persons as well as the enjoyment and protection of rights under the conditions granted by each State to its own nationals; - the elimination of double taxation within the Community; - the mutual recognition of companies within the meaning of Article 58, second paragraph, the maintenance of their legal personality in cases where the registered office is transferred from one country to another, and the possibility for companies subject to the municipal law of different Member States to form mergers; and - the simplification of the formalities governing the reciprocal recognition and execution of judicial decisions and of arbitral awards».

THE 1968 BRUSSELS CONVENTION Five versions of the Convention (accession conventions); Still applicable: - between overseas territories - transitional cases (where recognition/enforcement is sought of a judgment given before the entry into force of Brussels I Regulation) The preliminary rulings of the Court of Justice: the Luxembourg Protocol of 3 June 1971 (differences with article 267 TFEU)

THE «parallel» lugano CONVENTION(s) The 2007 Lugano II Convention repealed the previous 1988 Lugano Convention. The Brussels Convention is “supplemented” by the Lugano Convention of 20 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Between EC/Denmark and the EFTA countries (Norway, Iceland and Switzerland): scope of application

BRUSSELS I and Brussels I-bis REGULATIONs Regulation n. 44/2001(Brussels I): outcome of the process of “Europeanization” of Private International Law Declaration of enforceability (exequatur): “(17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation”. Regulation n. 1215/2012: Brussels I bis Regulation Articles 67 and 81 TFEU Article 267 of the TFEU: Interpretation of the Court of Justice of the EU – after the Lisbon Treaty (first instances); function of its activity

BRUSSELS I BIS REGULATION Recital 34 of the Preamble: Continuity between the 1968 Brussels Convention, Regulation (EC) No 44/2001 and this Regulation should be ensured, and transitional provisions should be laid down to that end. The same need for continuity applies as regards the interpretation by the Court of Justice of the European Union of the 1968 Brussels Convention and of the Regulations replacing it. Elements of continuity and discontinuity with Brussels I Regulation (CJEU case-law; third States; abolition of exequatur; strengthening of choice of court agreements). Inter-textual interpretation

BRUSSELS I BIS REGULATION outline Preamble: 41 recitals 81 articles: - Scope and definitions - Rules on jurisdiction - Rules on recognition and enforcement - Common provisions - Annexes (standard forms)

BRUSSELS I BIS REGULATION scope 1. Temporal scope of application (ratione temporis) 2. Personal scope of application (ratione personae) 3. Material scope of application (ratione materiae)

1. Temporal scope of application (ratione temporis) Article 66: «This Regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015. 2. Notwithstanding Article 80, Regulation (EC) No 44/2001 shall continue to apply to judgments given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded before 10 January 2015 which fall within the scope of that Regulation»

1. Temporal scope of application (ratione temporis) Article 81: «This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It shall apply from 10 January 2015 (…). This regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties»

2. Personal scope of application (ratione personae) Domicile: the principal head of jurisdiction used by the rules on jurisdiction contained in the regulation Article 4: «1. Subject to this regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State. 2. Persons who are not nationals of the Member State in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that Member State»  Ordinary forum of the defendant

2. Personal scope of application (ratione personae) Article 5 : «Persons domiciled in a Member States may be sued only by virtue of the rules set out in Sections 2 to 7 of this Chapter» Recital 15 of the Preamble: «The rules of jurisdiction should be highly predictable and founded on the principle that jurisdiction is generally based on the defendant’s domicile. Jurisdiction should always be available on this ground save in a few well defined situations in which the subject-matter of the dispute or the autonomy of the parties warrants a different connecting factor. The domicile of a legal person must be defined autonomously so as to make the common rules more transparent and avoid conflicts of jurisdiction».

2. Personal scope of application (ratione personae) Article 6 : «1. If the defendant is not domiciled in a Member State, the jurisdiction of the courts of each Member State shall, subject to Article 18(1), Article 21(2) and Articles 24 and 25, be determined by the law of that Member State. 2. As against such a defendant, any person domiciled in a Member State may, whatever his nationality, avail himself in that Member State of the rules of jurisdiction there in force, and in particular those of which the Member States are to notify the Commission pursuant to point (a) of Article 76(1), in the same way as nationals of that Member State». See the European e-Justice Portal for Member States’ communications to the EU Commission.

2. Personal scope of application (ratione personae) Recital 16: «In addition to the defendant’s domicile, there should be alternative grounds of jurisdiction based on a close connection between the court and the action or in order to facilitate the sound administration of justice. The existence of a close connection should ensure legal certainty and avoid the possibility of the defendant being sued in a court of a Member State which he could not reasonably have foreseen. This is important, particularly in disputes concerning non-contractual obligations arising out of violations of privacy and rights relating to personality, including defamation».  Forum shopping

2. Personal scope of application DOMICILE OF INDIVIDUALS Article 62 (domicile of an individual): «1. In order to determine whether a party is domiciled in the Member State whose courts are seised of a matter, the court shall apply its internal law. 2. If a party is not domiciled in the Member State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another Member State, the court shall apply the law of that Member State». The British concept of “domicile” is contained in par. 9 of Schedule 1 to the Civil Jurisdiction and Judgment Order 2001 (SI 2001/3929): an individual is domiciled in the UK if: “(a) he is resident in the United Kingdom; and (b) the nature and circumstances of his residence indicate that he has a substantial connection with the United Kingdom”.

2. Personal scope of application DOMICILE OF LEGAL PERSONS Article 63 (autonomous definition of «domicile of a legal person»): «1. For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its: (a) statutory seat; (b) central administration; or (c) principal place of business. 2. For the purposes of Ireland, Cyprus and the United Kingdom, ‘statutory seat’ means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place. 3. In order to determine whether a trust is domiciled in the Member State whose courts are seised of the matter, the court shall apply its rules of private international law”.