1. EUROPEAN PRIVATE INTERNATIONAL LAW
Ester di Napoli
LUMSA University, Rome
19-20 March 2019

2. OTHER EU PIL MEASURES
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. 861/2007 establishing a European Small Claims Procedure
[Regulation (EU) n. 655/2014 establishing a European Account Preservation Order (EAPO) procedure to facilitate cross-border debt recovery in civil and commercial matters]
At the claimant’s choice
These three Regulations put into practice the principle of mutual recognition of judgments in civil matters. Their main aim is to simplify and speed up the cross-border recognition and enforcement of creditors’ rights in the European Union. In this respect they contribute both to building a genuine area of justice in the European Union, and to implementing the Single Market

3. Regulation (EC) n. 805/2004 creating a European Enforcement Order for uncontested claims
«Uncontested Claims Regulation» It applies from 21 October 2005 in then 24 existing MSs The Regulation applies between all Member States of the European Union with the exception of Denmark (no one can apply to a Danish Court for an EU enforcement order, and that an EU enforcement order will not be enforced in Denmark). The principle of mutual recognition is the cornerstone of judicial co-operation in civil matters within the Union. Regulation (EC) No 805/2004 of the European Parliament and of the Council created the European Enforcement Order for uncontested claims. The European Enforcement Order permits the use of judgments, court settlements and authentic instruments throughout all Member States. It abolishes intermediate proceedings (“exequatur”) in the Member State of enforcement

4. Regulation (EC) n. 805/2004 creating a European Enforcement Order for uncontested claims
It dispenses, under certain conditions, with all intermediary measures in the Member State in which enforcement is sought that have been necessary so far for decisions delivered in another Member State in the verifiable absence of a dispute over the nature or extent of a debt. Those conditions mainly concern the service of documents in the case of judgments by default. Abolishing exequatur enables creditors to obtain quick and efficient enforcement abroad without involving the courts in the Member State where enforcement is applied for in time-consuming and costly formalities.

5. Regulation (EC) n. 805/2004 creating a European Enforcement Order for uncontested claims
A claim is considered to be uncontested when: - the debtor has expressly agreed to it by admission (article 3(1)(a)); - the debtor has never objected to it, in compliance with the relevant procedural requirements under the law of the Member State of origin, in the course of court proceedings (article 3(1)(b)); - the debtor has not appeared or been represented at a court hearing regarding that claim after having initially objected to the claim in the course of the court proceedings, provided that such conduct amounts to a tacit admission of the claim or of the facts alleged by the creditor under the law of the Member State of origin (article 3(1)(c)).

6. Regulation (EC) n. 1896/2006 creating a European order for payment (EOP) procedure
The Regulation applies between all Member States of the European Union with the exception of Denmark ( no one can apply to a Danish Court for an EOP, and that an EOP will not be enforced in Denmark). The procedure does not require presence before the court. The claimant only has to submit his application, after which the procedure leads its own life. It does not require any further formalities or intervention on the part of the claimant. If a statement of opposition is filed within the time limit of 30 days automatic transfer of the case to ordinary civil proceedings (unless the claimant has explicitly requested that the proceedings be terminated in that event)

7. Regulation (EC) n. 1896/2006 creating a European order for payment procedure
The EOP procedure is optional, to the extent that it is up to the claimant to chose to use it rather than any of the other available ways in which the same claim could be made. The decision to reject an application does not prevent the claimant from pursuing the claim again in any appropriate proceedings, including the EOP and also before the same court that rejected the application.

8. Regulation (EC) n. 861/2007 establishing a European Small Claims Procedure
The Small Claims Regulation seeks to improve and simplify procedures in civil and commercial matters where proceeding do not exceed a certain amount. Initially, the value of a claim did not have to exceed 2000 € at the time when the claim form is received by the court or tribunal with jurisdiction. Then, Regulation (EU) 2015/2421 amended Regulation (EC) No 861/2007, increasing the ceiling as regards the value of a claim to 5000 €, excluding all interest, expenses and disbursements. Area of claims of low value especially those made by individuals against businesses or other individuals where the time, effort and cost involved can often be grossly disproportionate to the value of the claim. The Regulation applies between all Member States of the European Union with the exception of Denmark. The Small claims procedure operates on the basis of standard forms. It is a written procedure unless an oral hearing is considered necessary by the court. The Regulation also establishes time limits for the parties and for the court in order to speed up litigation. The Regulation provides for four standard forms.

9. Regulation (EC) n. 861/2007 establishing a European Small Claims Procedure
The procedure sets forth in the regulation places emphasis on the need for relative simplicity of the proceedings, notably that the procedure should largely be written. The role of the court is strengthened significantly as regards managing the progress of the case and in determining the issues between the parties in relation to the claim and the potential for parties to make use of the procedure without the need for, and attendant expense of, legal advice.

10. Lowest common denominators: claimant’s choice no exequatur/simplicity/speed Standard forms

11. introduction to EU conflict-of-law rules: regulation (EC) no 593/2008 on the law applicable to contractual obligations (Rome I)
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (“Rome II” Regulation) It lays down conflict-of-law rules for torts and restitutionary obligations; it is designed to complement EU measures (1980 Rome Convention and its «successor», Rome I Regulation)

12. Regulation (EC) n. 593/2008 on the law applicable to contractual obligations (Rome I)
Material scope: It applies to situation, involving a conflict of laws, to “contractual obligations” (independent meaning) in civil and commercial matters  The concept shall have the same meaning as in Article 7, para. 1 of Brussels I bis Regulation. Territorial scope: The Regulation is binding for the courts of the Member States for which it has entered into force. ( see next) Note: Recital (11): The parties' freedom to choose the applicable law should be one of the cornerstones of the system of conflict-of-law rules in matters of contractual obligations.

13. Regulation (EC) n. 593/2008 on the law applicable to contractual obligations (Rome I)
Article 12 - Scope of the law applicable: “1. The law applicable to a contract by virtue of this Regulation shall govern in particular: (a) interpretation; (b) performance; (c) within the limits of the powers conferred on the court by its procedural law, the consequences of a total or partial breach of obligations, including the assessment of damages in so far as it is governed by rules of law; (d) the various ways of extinguishing obligations, and prescription and limitation of actions;(e) the consequences of nullity of the contract. (…)”. Territorial scope: The Regulation is binding for the courts of the Member States for which it has entered into force. ( see next) Note: Recital (11): The parties' freedom to choose the applicable law should be one of the cornerstones of the system of conflict-of-law rules in matters of contractual obligations.

14. Regulation (EC) n. 593/2008 on the law applicable to contractual obligations (Rome I)
Territorial scope: Article 2 establishes Rome I Regulation’s universal application, as “Any law specified by this Regulation shall be applied whether or not it is the law of a Member State”. Temporal scope: Article 28 (Application in time) establishes that the regulation applies to contracts concluded after 17 December Article 29 “This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union. It shall apply from 17 December 2009 (…)”.

15. Rome i regulation its coordination with other eu measures
Article 23: «With the exception of Article 7 [insurance contracts], this Regulation shall not prejudice the application of provisions of Community law which, in relation to particular matters, lay down conflict-of-law rules relating to contractual obligations»
For example, it gives way to the explicit conflict-of-law rules contained in Directive 93/13 on unfair terms in consumer contracts.
Recital 14: A situation where conflict-of-law rules are dispersed among several instruments and where there are differences between those rules should be avoided. This Regulation, however, should not exclude the possibility of inclusion of conflict-of-law rules relating to contractual obligations in provisions of Community law with regard to particular matters. This Regulation should not prejudice the application of other instruments laying down provisions designed to contribute to the proper functioning of the internal market in so far as they cannot be applied in conjunction with the law designated by the rules of this Regulation. The application of provisions of the applicable law designated by the rules of this Regulation should not restrict the free movement of goods and services as regulated by Community instruments, such as Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce)

16. coordination with international conventions
Article 25: «1. This Regulation shall not prejudice the application of international conventions to which one or more Member States are parties at the time when this Regulation is adopted and which lay down conflict-of-law rules relating to contractual obligations. 2. However, this Regulation shall, as between Member States, take precedence over conventions concluded exclusively between two or more of them in so far as such conventions concern matters governed by this Regulation». Hague Convention of 15 June 1955 on the law applicable to international sales of goods ( Hague Convention of 14 March 1978 on the Law Applicable to Agency (

17. Rome i regulation – Choice of law agreements
Express choice of law /tacit choice of law (?) Article 3 - Freedom of choice “1. A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract (…)”.

18. Rome i regulation – Choice of law agreements
Article 4 - Applicable law in the absence of choice: “1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3 and without prejudice to Articles 5 to 8, the law governing the contract shall be determined as follows: (a) a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence; (b) a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence; … (f) a distribution contract shall be governed by the law of the country where the distributor has his habitual residence; 2. Where the contract is not covered by paragraph 1 or where the elements of the contract would be covered by more than one of points (a) to (h) of paragraph 1, the contract shall be governed by the law of the country where the party required to effect the characteristic performance of the contract has his habitual residence. 3. Where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. 4. Where the law applicable cannot be determined pursuant to paragraphs 1 or 2, the contract shall be governed by the law of the country with which it is most closely connected.

19. Rome i regulation – Choice of law agreements
 Habitual residence is defined in article 19: 1. For the purposes of this Regulation, the habitual residence of companies and other bodies, corporate or unincorporated, shall be the place of central administration. The habitual residence of a natural person acting in the course of his business activity shall be his principal place of business. 2. Where the contract is concluded in the course of the operations of a branch, agency or any other establishment, or if, under the contract, performance is the responsibility of such a branch, agency or establishment, the place where the branch, agency or any other establishment is located shall be treated as the place of habitual residence. 3. For the purposes of determining the habitual residence, the relevant point in time shall be the time of the conclusion of the contract

20. General provisions
Article 9: Overriding mandatory provisions “… provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organisation, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation. 2. Nothing in this Regulation shall restrict the application of the overriding mandatory provisions of the law of the forum. 3. Effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed, in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to those provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.

21. General provisions
Article 20: Exclusion of renvoi The application of the law of any country specified by this Regulation means the application of the rules of law in force in that country other than its rules of private international law, unless provided otherwise in this Regulation Article 21: Public policy of the forum The application of a provision of the law of any country specified by this Regulation may be refused only if such application is manifestly incompatible with the public policy (ordre public) of the forum

22. Practical case
Facts: Thomas, domiciled in Lisboa, has a contract with Andrés, who is domiciled in Rome: the latter is a self- employed commercial agent, who carries out his activity on Thomas’ behalf, in Italy, Germany and France. Thomas terminates the contract relying on the breach of Andrés’s contractual obligation. Andrés does not understand the reasons of such termination and decides to start legal proceedings against Thomas. Premises: Thomas and Andrés did not agree neither the competent court nor the law applicable to their contract.