Private international law in the European Union : from conventions to community instruments
This thesis is about the transposition of the Conventions adopted by the Member States of the Community in private international into internal Community measures. Article 65 of the EC Treaty as amended by the Treaty of Amsterdam allowed the Community to adopt general measures in private international law for the first time. This competence has been used by the Community to adopt the Brussels I Regulation on jurisdiction and recognition and enforcement of judgments in civil and commercial matters, the insolvency Regulation, the service of documents Regulation, evidence Regulation and the Brussels II and Brussels II bis Regulations on jurisdiction and recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility. All these measures have in common, apart from the Evidence Regulation, the fact that they were adopted first as Community conventions. The thesis aims to analyse the various issues arising out of the transposition of these Conventions into Community Regulations. The Brussels I Convention, which was originally adopted under Article 293(4) (ex 220(4)) EC Treaty, is the main focus of the thesis. This Convention was the only successful Convention adopted under this Treaty basis and it was adopted by the Member States in 1968. Because it has been in force for such a long time, it is possible to analyse the Convention negotiation and amendment process, to examine European Court of Justice’s approach to Community conventions and to compare the effectiveness of the convention process of adopting internal Community measures. In relation to the Community Regulations, the main question to be explored is: whether these instruments fulfil the purposes set out in the Treaty. Article 65 EC allows the Community to adopt private international law measures that are “necessary for the proper functioning of the internal market”. By looking at the substantive provisions adopted, other international instruments in the field, and other legislative options open to the Community an assessment will be made of whether the purposes of the Treaty were achieved in the best possible manner by adopting these instruments. Finally, the relationship of the Community with the Hague Conference on Private International Law is analysed. The Hague Conference is a prestigious international organisation with specialty and expertise in private international law. The effects, if any, that the communitarisation of private international law will have for the working of the Conference, and the position of the Member States in the Conference, will be examined.