Unification and Harmonization of Private International Law in Europe Katharina Boele-Woelki* 1. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 2. Article 65 EC as Inserted by the Treaty of Amsterdam . . . . . . . . . . . . . 62 3. European Private International Law: the Current State of Affairs . . . . . . . . 66 3.1 The Brussels I and Lugano Conventions. . . . . . . . . . . . . . . . . . . . . 67 3.2 Rome I. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 3.3 Authentication of legal instruments . . . . . . . . . . . . . . . . . . . . . . . 69 3.4 Recovery of maintenance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 3.5 Insolvency proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 3.6 The service of (extra-)judicial documents . . . . . . . . . . . . . . . . . . . . 71 3.7 Brussels II (Procedural divorce law). . . . . . . . . . . . . . . . . . . . . . . 71 3.8 Rome II (Non-contractual obligations). . . . . . . . . . . . . . . . . . . . . . 72 3.9 Rome III (Conflict law with respect to divorce) . . . . . . . . . . . . . . . . . 73 3.10 Brussels III and Rome IV (Law of matrimonial property and the law of succession). . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 4. The Future Role of the Hague Conference for Private International Law . . . . 75 5. Concluding Remarks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76 1. Introduction Private international law is merely private law and is thereby, in principle, national law. As a result of the Treaty of Amsterdam, this description of private international law as a legal field which emanates from days of old will require modification, as far as the Member States of the EU are concerned. In the future, Community private international law will assume a more important position than that of private international law with a national tint. In the years to come, private international law in Europe will, first and foremost, have its origins in European law and only in the second instance will it emanate from national law. In this contribution we shall briefly dwell on the changed nature of private inter * Professor of Private International Law and Comparative Law, University of Utrecht. J. Basedow et al., eds., Private Law in the International Arena – Liber Amicorum Kurt Siehr © 2000, T.M.C.Asser Press, The Hague, The Netherlands 62 katharina boele-woelki national law. Which consequences are associated therewith? Is the position of the Hague Conference on Private International Law – which has been in existence for more than 100 years – thereby threatened now that legislation in the field of private international law can be implemented not only by way of treaties between the Member States, but also by the European Commission by means of directives and regulations? How will the Member States of the European Union form their positions in the negotiations concerning a particular convention at the Hague Conference on Private International Law? 2. Article 65 EC as Inserted by the Treaty of Amsterdam The Amsterdam Treaty of 18 June 1997 entered into force for the 15 Member States on 1 May 1999.1 The Treaty amends the Treaty on the European Union (Treaty of Maastricht of 7 February 1992)2 and the three Community Treaties (European Coal and Steel Community (ECSC), European Atomic Energy Community (EAEC) and the European Community (EC)). The amendments primarily concern the Treaty on European Union (TEU) and the EC Treaty.3 Although the Titles of the TEU are not equivalent, in describing the structure of the Treaty three pillars are generally referred to for which the Union provides the necessary supportive “cover”. The First Pillar – also referred to as the Community Pillar – contains the three Communities (ECSC, EAEC and EC). The Second Pillar is concerned with the common foreign and security policy of the Member States while the Third Pillar contains provisions concerning cooperation between the Member States in the area of justice and home affairs. With the Treaty of Amsterdam the judicial cooperation in civil matters, more specifically private international law and procedural law,4 has been transferred from the Third to the First Pillar. After the entry into force of the Treaty of Amsterdam this Third Pillar is now also called “Provisions concerning police and judicial cooperation in criminal matters”. 1 The ratification procedures took place successfully. See the description thereof on a country by country basis by R. Barents, Het Verdrag van Amsterdam in werking (Kluwer-Deventer 1999) pp. 19 30. 2 Entry into force 2 November 1993. 3 Cf., exhaustively Barents (supra n. 1) pp. 3-11. 4 Cf., G. Betlem & E.H. Hondius, “Europees privaatrecht na Amsterdam”, Nederlands Juristenblad (1999) pp. 1137-1147 (1140); I. Tarko, „Ein Europäischer Justizraum: Errungenschaften auf dem Gebiet der justitiellen Zusammenarbeit in Zivilsachen“, Österreichische Juristenzeitung (1999) pp. 401-407 (403-405); D. Besse, „Die justitielle Zusammenarbeit in Zivilsachen nach dem Vertrag von Amsterdam und das EuGVÜ“, Zeitschrift für Europäisches Privatrecht (1999) pp. 107122 (108-117); B. Heß, „Die ‚Europäisierung‘ des internationalen Zivilprozessrechts durch den Amsterdamer Vertrag – Chancen und Gefahren“, Neue Juristische Wochenschrift (2000) pp. 23-32. unification and harmonization of pil in europe Whereas the Second and Third Pillars may be qualified as “inter-governmental” because the influence of the Member States directly, or through the Council, is still very strong, in the First Pillar use is made, firstly, of primary law provisions which have direct effect, and, secondly, of secondary law provisions enacted upon the recommendation of the Commission as an independent institution and concerning which the Court of Justice in Luxembourg offers legal protection and legal unity.5 The Community authority to legislate in matters concerning cooperation in civil matters having cross-border implications is set out in Articles 65-69 EC. The transfer of Community authority into legislation in the field of private international law will gradually expire according to Article 67 EC. During a transitional period of five years after the entry into force of the Treaty of Amsterdam (this period ending on 1 May 2004), the Council shall act unanimously on a proposal from the Commission, or upon the initiative of a Member State and after consulting the European Parliament. According to a specific procedure, preliminary questions may be sent to the Court of Justice. These questions must be concerned with the interpretation of this Treaty’s provisions and the interpretation and the validity of the institutions’ actions based on the Title referred to above.6 Article 65 EC is embodied in Title IV: visa, asylum, immigration and other policy areas concerning the free movement of persons. This provision reads as follows: “Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and insofar as necessary for the proper functioning of the internal market, shall include: (a) improving and simplifying: – the system for cross-border service of judicial and extrajudicial documents; – cooperation in the taking of evidence; – the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases; (b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction; (c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.” [Emphasis added – K. B.-W.]. The formulation of Article 65 EC and the relationship of this provision with Article 5 Cf., Barents (supra n. 1) pp. 7-8. 6 On the regulation determining the power to pose preliminary questions as amended by the Treaty of Amsterdam cf. Betlem/Hondius (supra n. 4) pp. 1143-1144. 64 katharina boele-woelki 293 EC [ex Article 220] gives rise to many questions.7 The first question concerns the legal instrument in question. Article 65 EC uses the notion of “measures”. This term is generally employed in the Treaty (see, for example, Article 95 EC)8 so as to inidicate that diverse legal instruments are possible: binding (regulation, directive) or non-binding (resolution, recommendation) instruments.9 Based on this provision a treaty cannot be concluded.10 That it should concern, among other things, binding measures may be deduced from Article 68, first paragraph, EC. The term “acts of the institutions” is the collective term for “measures” which are subject to appeal and which may be nullified by the Court of Justice (see Article 230 EC). Secondly, the weight of the measures varies depending on whether they fall under Article 65 (a), (b) or (c). While (a) speaks of “improving and simplifying”, the measures taken under (b) must be concerned with “promoting compatibility”, and (c) finally speaks of “eliminating obstacles”, once more with the addition “if necessary by promoting the compatibility”. What does a measure based on Article 65 EC look like and when are the criteria satisfied? The competence to promote the compatibility of regulations excludes harmonising and unifying measures, according to Kohler. These measures, which are limited to “promoting” a certain policy, fall within the category of the least far-reaching competences which European law possesses. This category of measures can only lead to the emergence of soft law as far as the “regulations for collision and jurisdiction disputes” are concerned.11 This explanation is not completely self-evident, however. Article 65 EC refers to “measures” in the general sense which European law, especially Article 95 EC, attributes to them. Included under measures are not only regulations and directives but also the non-binding decisions, although Article 65 EC does not in fact differentiate between these instruments. 7 On this point see exhaustively and extremely critically Chr. Kohler, « Interrogations sur les sources du droit international privé européen après le traité d’Amsterdam », Revue critique de droit international privé (1998) pp. 1-30. 8 On the scope of this provision, R.H. van Ooik, De keuze der rechtsgrondslag voor besluiten van de Europese Unie (diss. Utrecht, Kluwer-Deventer 1999) pp. 73-77. 9 On the question of which form of harmonisation may be chosen, cf. Van Ooik (supra n. 8) pp. 296-300. 10 Cf., also F.J.A. van der Velden, “Artikel 65 en het Verdrag van Amsterdam”, Contracteren (1999) pp. 23-24. 11 In this sense Kohler, (supra n. 7) pp. 19-21. According to S. Leible, „Kollisionsrechtlicher Verbraucherschutz im EVÜ und in EG-Richtlinien“, in: H. Schulte-Nölke & R. Schulze (eds.), Europäische Rechtsangleichung und nationale Privatrechte (Baden-Baden, Nomos 1999) pp. 353-392 (387-389), Article 65(b) EC can only be used as a basis for Directives and not for Regulations because the measures which must be taken within the framework of the promotion of compatibility merely look towards harmonisation and not towards unification. unification and harmonization of pil in europe 65 Thirdly, the relationship between Article 65 EC and Article 293 EC [ex Article 220 ECT] is important. In spite of the transfer of powers from the Third to the First Pillar, the latter provision has remained in place.12 The Member States still have the power to conclude treaties with one another, as is the case with the Convention on the Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters and the Convention on the Law Applicable to Contractual Obligations, whereover the national parliaments have a say in the form of Acts of Approval. Considering the fact that this competence of the Member States under Article 293 has remained in place13 and that the wording of Article 65 EC can only be termed as vague, Kohler has come to the conclusion that the latter provision does indeed confirm the national authority to determine private international law regulations. According to him, Article 65 EC does not provide the Council with horizontal authority but, rather, with only sectoral powers as regards those fields named in the provision. Kohler regards this provision as having a number of constitutional drawbacks and he concludes, among other things:14 “Il est pourtant plus que douteux que, avec ces handicaps, la compétence communautaire prévue à l’article 65 puisse faire évoluer le droit international privé européen de manière substantielle. Le maintien intégral de l’article 220 du traité CE [now Article 293 EC, K. B.-W.] reflète cet état des choses, et l’action intergouvernementale, loin de pouvoir être qualifiée d’anachronique, renaîtra, renforcée, des cendres du troisième pilier, mais sans l’encadrement institutionnel de celui-ci.” A different view is expressed by Barents,15 a specialist in European law. He submits that Article 293 EC imposes upon the Member States “so far as is necessary” an obligation to negotiate as far as the subjects referred to therein are concerned.16 According to him, from this wording it follows that treaties between the Member 12 Article 293 EC [ex 220 ECT] reads as follows: “Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals: -the protection of persons and the enjoyment and protection of rights under the same conditions as those accorded by each State to its own nationals; -the abolition of double taxation within the Community; -the mutual recognition of companies or firms within the meaning of the second paragraph of Article 48, the retention of legal personality in the event of transfer of their seat from one country to another, and the possibility of mergers between companies or firms governed by the laws of different countries; -the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards.” 13 Betlem/Hondius (supra n. 4) pp. 1137-1147 determine that this important circumstance is not a problem. 14 Ibid., p. 29. 15 Ibid., pp. 370-371. 16 For the text see note 12. 66 katharina boele-woelki States can only be concluded whenever the EC Treaty does not provide any basis for the necessary measures. Considering the fact that Article 65 EC has introduced a similar legal basis, this provision may be considered as a lex specialis compared to Article 293 EC. Article 65 EC also makes use of the phrase “insofar as necessary” and links these words to “for the proper functioning of the internal market”. This has as a consequence that the treaties which are concluded between the Member States as a result of the Article 293 EC obligation to negotiate “can now be Communitarised”. Barents welcomes this development considering the laborious and lengthy negotiations which are necessary before treaties can be entered into.17 In Brussels – as will hereafter be apparent – the Barents’ interpretation of Article 65 EC is being followed. In the meantime the Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam was adopted on 3 December 1998 by the Council (Justice and Home Affairs).18 This is a concrete plan by which to implement, in a workable system, the changes brought about by the Treaty of Amsterdam in the areas covered by the First Pillar and also by which to be able to designate the necessary priorities. In the following section that part of the plan which is relevant from a private international law perspective will be evaluated while describing the various instruments for its implementation. 3. European Private International Law: the Current State of Affairs Having been made subject to the influence of the progressive European integration process, the legal sources of European private international law are now in a transformation phase. A number of conventions are due to be changed, others will be converted into regulations and directives. For the purpose of new legislation use will be made of the Community powers. Changes will gradually occur but the influence of the Member States will remain strong by means of the unanimity rule (and, during the initial period, by means of the Member States’ right of initiative). We must further consider the special position which Denmark, Ireland and the United Kingdom have taken by making reservations to the newly introduced Title IV. For these countries the new private international law legislation which has now emerged, and the legislation that will be transformed by the effect of Article 65 EC 17 In a similar sense, B. von Hoffmann, “The Relevance of European Community Law”, in: B. von Hoffmann (ed.), European Private International Law (Nijmegen, Ars Aequi Libri 1998) pp. 1937 (32). 18 OJ (EC) [1999] C 19/1. The relevant passages from a private international law point of view are reproduced in German and English in IPRax (Praxis des internationalen Privat-und Verfahrensrechts) (1999) pp. 288-290. unification and harmonization of pil in europe 67 following the entry into force of the Treaty of Amsterdam, will not apply.19 Apart from the possibility of the opt-in declaration,20 which may be made by the three countries in question,21 the possibility exists that the European Union will enter into seperate agreements with Denmark, Ireland and the United Kingdom in order to reach agreement on the Community’s private international law legislation. 3.1 Brussels I and the Lugano Convention The cornerstone of European international procedural law is the Convention on the Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968 (hereinafter, Brussels I). This convention has been revised on a number of occasions, most recently by the Accession Convention for Spain and Portugal on 26 May 1989. The (then) six Member States accomplished Brussels I within the framework of Article 220 part 4 EC which was applicable at that time. It is generally accepted that Brussels I, as is the case with the EC Convention on the Law Applicable to Contractual Obligations, can be considered as a multilateral convention between the Member States themselves and that it does not form an integrated element of Community law. As a consequence of Article 65 EC Brussels I in its revised version22 will be transposed into a regulation.23 The Convention on the Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters of 16 September 1988 (hereinafter, the Parallel or Lugano Convention), however, will still remain as a convention in its revised version. The variety of sources in the field of international procedural law can only increase. Reduction cannot be expected in this respect. Now that Brussels I will be embodied in a regulation, there will also be no ex 19 See the Protocols to the Treaty of Amsterdam concerning the position of the United Kingdom and Ireland, and concerning the position of Denmark (4 and 5). See also Article 69 EC. 20 Cf., Besse (supra n. 4) pp. 111-112. 21 For Ireland and the United Kingdom, their participation in a measure which belongs to Title IV EC is simply regulated. They may send a written notification to the Council wherein they declare that they consider themselves to be bound (Article 3 of the Protocol in question). For Denmark it is much more complicated. Article 7 of the relevant Protocol determines that Denmark can notify the other Member States at any time that it no longer wishes to rely on the Protocol in its entirety or as regards a part thereof. Doubt arises as to whether a certain measure can fall within the ambit of the last phrase “a part thereof”. 22 On this cf. Chr. Kohler, „Die Revision des Brüsseler und des Luganer Übereinkommens über die gerichtliche Zuständigkeit und die Vollstreckung gerichtlicher Entscheidungen in Zivil-und Handelssachen“, Tagung der Wissenschaftlichen Vereinigung für Internationales Verfahrensrecht (Berlin 1999). 23 On the reasons for transposition see Besse (supra n. 4) pp. 118-120. On the problem of attuning the Brussels I Regulation with the activities of the Hague Conference within the framework of a worldwide jurisdiction and enforcement convention, cf. Betlem/Hondius (supra n. 4) p. 1143. They advocate an “inverted subsidiarity” because the recognition and enforcement of civil judgments could perhaps be better regulated on a worldwide scale. 68 katharina boele-woelki planatory memorandum drawn up as is usually the case with international conventions. If an explanation of the provisions of the Brussels I Regulation is necessary, this may be found in the revised Lugano Convention which will contain the same provisions. The explanatory memorandum, which will be written for the latter convention by Professor Fausto Pocar from Italy, may serve as a source of inspiration in explaining the Brussels I Regulation. Who would have ever thought so? The special position of Denmark,24 Ireland and the United Kingdom promises additional problems in converting the convention into a regulation because these countries are also signatories to the Lugano Convention. The exclusion of one or more countries from the scope of the Brussels I Regulation could not only create obstacles to the free movement of trade within the internal market, but could also lead to discrimination against the subjects of the countries in question or the persons already residing there. This result, however, is in itself contrary to Article 11 part 1 (c) and (e) EC which corresponds to the prohibition of discrimination.25 It is only to be hoped that these “special position” countries will, as far as possible, participate simultaneously in measures which safeguard the alignment towards each other and towards the countries for which the Brussels I Regulation will apply without any further decision making on the part of the national Parliaments. 3.2 Rome I The Convention on the Law applicable to Contractual Obligations of 19 June 1980 (hereinafter, Rome I)26 is a cornerstone of of European conflicts law.27 This convention, based on Article 220 EC, will, it is expected, remain as a convention. Whether there are any plans to transpose this convention into a Community act is not yet known. Proposals to make use of the regulation as an ideale Rechtssetzungsform for the unification of private international law had already been put forward in German legal literature in 1993. Such proposals are now being specifically propagated with respect to the international law of contracts.28 24 According to Barents (supra n. 1) p. 335 “this modest expression alluding to the stubborn refusal on the part of this country, which indeed belongs to the Schengen group, precludes its submission to any Community or Union authority from the very start”. 25 Cf., exhaustively Besse (supra n. 4) p. 121. 26 After the accession of Spain, Portugal, Finland, Austria and Sweden a consolidated version was published in OJ (EC) [1998] C 27/34. 27 Cf., D. Martiny, „Europäisches Internationales Vertragsrecht – Ausbau und Konsolidierung“, Zeitschrift für Europäisches Privatrecht (1999) pp. 246-270 (246); A. Junker, „Empfiehlt es sich, Art. 7 EVÜ zu revidieren oder aufgrund der bisherigen Erfahrungen zu präzisieren?“ IPRax (2000) pp. 6573 (65). 28 Cf., Leible (supra n. 11) pp. 387-389, with the literature indicated therein. According to this author, however, Article 65 EC Treaty cannot form the basis for the unification of the international law of contracts by means of a Regulation. He suggests that use should be made in this respect of Art. 308 EC [ex 235 ECT]. Cf., for the scope of this “residual power” van Ooik (supra n. 8) pp. 72-73. unification and harmonization of pil in europe 69 Article 20 Rome I gives priority to Community law. The various directives, for example on unfair contract terms or time-sharing, are mainly concerned with substantive law. Yet, they mostly contain a conflicts rule, on the basis of which the harmonisation effect intended by the Directive must be guaranteed towards non-EU countries. This rule is declared to be a mandatory rule of law when the circumstances have a sufficient connection with a EU Member State. In this way private international law problems which in themselves fall within the scope of Rome I, are kept outside the convention’s reach. Concerning the unification effect of Rome I, doubts consequently arise because of the different contents of the implementation acts in the Member States. The unification effect would further suffer from the fact that national legislators do not transpose the directives on time or otherwise convert them incorrectly into national law.29 In formulating the conflicts provisions the drafters in many cases seem not to have harmonised them with Rome I, which is irritating: for the national legislator it means that the implementation of the Directive in question is not an easy matter; for the court or the lawyer, of course, it is anything but clear.30 This situation has also been recognized by the drafters of the Action Plan. Within two years a revision of Rome I should be initiated, whereby account will have to be taken of the conflicts provisions in other Community instruments.31 3.3 Authentication of Public Documents The Convention abolishing the legalization of documents in the Member States of the European Communities of 25 May 198732 emerged within the framework of European Political Cooperation (EPC). This Convention has not entered into force. 33 This may be explained by the fact that, except for Denmark and Sweden, all the other EU Member States are Contracting Parties to the Hague Authentication Convention of 5 October 196134 which is applicable worldwide. Therefore, there does not seem to be any need for any specific regulation between the Member States 29 Cf., exhaustively Martiny (supra n. 26) pp. 249-251. 30 Cf., Leible (supra n. 11) pp. 367 et seq.; C.A. Joustra, “Europese richtlijnen en internationaal privaatrecht”, Weekblad voor Privaatrecht, Notariaat en Registratie (1999) no. 6370, pp. 664-670. 31 Cf., no. 40 (c) of the Action Plan. 32 Tractatenblad van het Koninkrijk der Nederlanden 1987, 166; Bulletin (EC) [1987] 124. 33 Four countries have ratified the Convention: Belgium, Denmark, France and Italy. 34 Cf., Hague Conference on Private International Law Collection of Conventions (1951-1996),p. 42. This Convention entered into force for Ireland on 9 March 1999. As to the usefulness of the European Authentication Convention there are grave doubts, see H. Duintjer Tebbens, “De Haagse Conferentie, de Europese Gemeenschap en de subsidiariteit”, Nederlands Juristenblad (1993) pp. 671672 (672). Alongside this there are currently a few bilateral treaties in force, see J. Pirrung, „Übereinkommen zur justitiellen Zusammenarbeit“, in: H. Schulte-Nölke/R. Schulze (eds.), Europäische Rechtsangleichung und nationale Privatrechte (Baden-Baden, Nomos 1999), pp. 341-451 (343344). 70 katharina boele-woelki of the EU. Nonetheless, there have been proposals to convert the European Authentication Convention into a regulation.35 3.4 Recovery of Maintenance Practically superfluous also seems to be the second Convention which was drafted within the framework of EPC and which did not enter into force.36 The Convention between Member States of the European Community on the Simplification of Procedures for the Recovery of Maintenance Payments of 6 November 1990 emerged because Ireland was not a Party to the worldwide New York Convention on the Recovery of Maintenance Abroad of 20 June 1956.37 In the meantime this EU Member State also ratified the UN Convention in November 1995.38 Also with respect to this Convention there have been proposals to transpose it into a regulation.39 The European Convention differs from the UN Convention only in that the European regulation concerning the recovery of maintenance applies also to maintenance claims taken over by governmental bodies by way of subrogation. 3.5 Insolvency Proceedings The third Convention drafted within the framework of EPC has also not fared any better. The Convention deals with – to put it succinctly – the applicability of the universality principle, that is to say with the mutual recognition of insolvency proceedings in other Member States. It has not entered into force because the United Kingdom refuses to accept the non-applicability of the Convention’s provisions to Gibraltar. However, Spain is not prepared to allow any amendment to the explanatory report from which the limited territorial field of application is derived.40 This stalemate would now being relieved, however, by transposing the Convention into a regulation.41 Doubts may be raised as to whether insolvency law really belongs with measures concerned with the free movement of persons. Is not the recognition of insolvency proceedings really a question of the free movement of 35 Cf. Tarko (supra n. 4) p. 403. 36 Only Ireland, Italy, Spain and the UK have ratified the Convention. 37 Cf., 268 United Nation Treaty Series 32. Cf., M. Sumampouw, “The EC Convention on the Recovery of Maintenance: Necessity or Excess?”, in: M. Sumampouw (ed.), Law and Reality, Liber amicorum C.A. Voskuil (Dordrecht/Boston/London, Martinus Nijhoff 1992) pp. 315-336. 38 Ratification of the Convention was discouraged due to the complexity caused thereby, cf., Pirrung (supra n. 34) pp. 344-345. 39 Cf., Tarko (supra n. 4) p. 403. 40 Nos. 300-302 of the explanatory report by Virgos/Schmidt. 41 See the Initiative of Germany and Finland with an eye on the acceptance of the Council Regulation concerning insolvency proceedings, submitted to the Council on 26 May 1999 (C 221/6), OJ (EC) [1999] C 221/8 of 3 August 1999. unification and harmonization of pil in europe 71 companies and services? It cannot be assumed that the United Kingdom will make use of the opportunity to give up its opt-in declaration42 because the political situation concerning Gibraltar shows no signs of change despite various attempts at mediation. The transformation of the Convention into a regulation will unify the international insolvency law of the other Member States which are, at present, the victims of differences of opinion which the Convention’s provisions do not touch upon in any way whatsoever. 3.6 The Service of (Extra-)Judicial Documents The law concerning the service of documents will also be unified by means of a regulation. The European Service Convention of 26 May 199743 has been transposed into the Service-of-Documents-Regulation of 29 March 2000.44 The Convention emerged, within the framework of judicial cooperation in civil matters as a result of the Treaty of Maastricht,45 on 26 May 1997,46 but has not entered into force.47 Until the end of 1999 it was largely unclear why the Council had first chosen a directive rather than a regulation as a Community instrument by which to address the problem of the service of documents.48 The service of documents is expressly referred to in Article 65(a) EC. The European Service Regulation will come into force on 1 October 2000 in the Member States which are at the same time parties to the Hague Service Convention of 15 November 196549 and had also concluded bilateral agreements between themselves on this matter. The new European legislation is in general considered to be a simplification of the law because direct contacts between the concerned authorities in the various countries will now be made possible (“decentralisation”).50 3.7 Brussels II (Procedural Divorce Law) The second Convention to emerge within the framework of judicial cooperation is concerned with international family law. On 28 May 1998 the EU Member States 42 Corresponding Article 3 of the Protocol to the Treaty of Amsterdam. 43 Cf., Tarko (supra n. 4) pp. 403-404. 44 COM (2000) 75, 1999/0102 CNS. 45 Upon the proposal by the Netherlands, supported by Germany. See F.J.A. van der Velden, “Betekening binnen de Europese Unie”, in: Het NIPR geannoteerd (-’s Gravenhage, T.M.C. Asser Instituut 1996), pp. 158-162. 46 Tractatenblad van het Koninkrijk der Nederlanden 1997, 253; OJ (EC) [1997] C 261. 47 Cf., Pirrung (supra n. 34) pp. 345-347. 48 Cf., also Betlem/Hondius (supra n. 4) p. 1142. 49 Cf., Nederlands Internationaal Privaatrecht (1999) no. 49. 50 In this sense Pirrung (supra n. 34) p. 346. 72 katharina boele-woelki signed Brussels II.51 This Convention can be compared with Brussels I, by which we mean the 1968 EC Jurisdiction and Enforcement Convention. It concerns jurisdiction, recognition and enforcement of decisions in the field of the dissolution of marriages and custody after divorce.52 There has been a proposal to transpose this Convention into a regulation.53 The Hague Conventions on the recognition of divorces and on child protection considerably lose out from a European point of view. The global regulations of the Hague Conference will be applicable in considerably fewer cases. Family law relations between persons emanating from the EU Member States54 will therefore fall under a seperate private international law regime as far as jurisdiction, recognition and enforcement are concerned.55 3.8 Rome II (Non-Contractual Obligations) The Regulation on the Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters will, just like its Brussels I counterpart, apply to both contractual and non-contractual obligations.56 The system of international cooperation in civil cases will have to be complemented by an instrument whereby not only the same rules on jurisdiction and recognition will apply in the Member States, but also the same conflict regulations.57 The European Group for Private International Law has made an important first move in this respect by drafting a proposal for a Convention on non-contractual obligations.58 Once again the question arises whether on the basis of Article 65(b) EC a regulation on this matter falls under Title IV of the EC Treaty, namely the free movement of persons. A wide interpretation of this objective must in any case be provided by exhaustive justification. Finally, there is still a problem at the national level. In two Member States national legislative 51 Cf., Th. de Boer, “Brussel II: een eerste stap naar een communautair i.p.r.”, Tijdschrift voor Familie- en Jeugdrecht (1999) 244-250. 52 Cf., K. Boele-Woelki, “Waarom Brussel II?”, Tijdschrift voor Familie-en Jeugdrecht (1998) p. 125 and M. Sumampouw, “Parental Responsibility under Brussels II”, in: Liber amicorum Kurt Siehr p . 729 53 Cf., the Proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for joint children, Doc. 599PC0220. 54 The problem of the three “special position” countries also emerges here. 55 Cf., also Pirrung (supra n. 34) pp. 347-350. 56 Cf., Action Plan no. 40 (b). 57 The Member States appear to have a great interest in this project. The activities are expected to be completed at the end of 2000. Cf., Tarko (supra n. 4) p. 406. 58 The French text may be found in Praxis des internationalen Privat-und Verfahrensrechts (1999) pp. 286-288 and the English text in Netherlands International Law Review (1998) pp. 465-471. Both versions have also been published in M. Fallon, “Proposition pour une convention européenne sur la loi applicable aux obligation non contractuelles”, European Review of Private Law (1999) pp. 45-68. unification and harmonization of pil in europe 73 activities are unfolding simultaneously with the ongoing discussions in Brussels. In August 1998 the German Government submitted a bill to Parliament on supplementing the private international law provisions in the EGBGB concerning noncontractual obligations59 and in the Netherlands a bill to regulate conflicts law with regard to obligations arising from wrongful acts (Act regulating the private international law applicable to unlawful acts) was submitted to the Lower House of Parliament in June 1999.60 In both countries – or so it would certainly appear to me – it must first be awaited to see how the Brussels legislator will regulate these issues. 3.9 Rome III (Conflict Law with Respect to Divorce) The Action Plan reports that by May 2004 the possibilities for attaining an agreement on regulations which will determine which divorce law is applicable must be investigated on the basis of a thorough study. Brussels II would unify the law of international divorce proceedings. Under this Convention, a number of courts may have the authority to dissolve a marriage, with the resulting risk of “forum shopping”.61 This plan will have important consequences for the Netherlands, for example. A brief look at the conflict regulations concerning divorce which are applicable in the EU Member States reveals that the foreign regulations still deviate from the Dutch approach. A choice of law is not possible in most legal systems and the reality test of the nationality as a connecting factor remains largely a Dutch acquisition. A further-reaching simplification of the matter, namely the application of the lex fori, is indeed being advocated with an eye on the planned codification of Dutch private international law.62 It is to be hoped that these somewhat liberal conflict rules on divorce, which have to be agreed upon between the Member States, may serve as an example. 59 BR-Drucksache 759/98. Published in Praxis des internationalen Privat-und Verfahrensrechts (1998) pp. 513 et seq., with an explanation by R. Wagner, „Der Regierungsentwurf eines Gesetzes zum Internationalen Privatrecht für außervertragliche Schuldverhältnisse und für Sachen“, Praxis des internationalen Privat- und Verfahrensrechts (1998) pp. 429-437. 60 Proceedings of the Lower House, 26 608, nos. 1-2. In the Explanatory Memorandum the Brussels activities in this field are not alluded to. 61 Cf., no. 41 (a) of the Action Plan. Cf., also Pirrung (supra n. 34) p. 349 and Tarko (supra n. 4) p. 407. 62 Cf., K. Boele-Woelki, „Der favor divortii im niederländischen Scheidungsrecht“, in: K. Boele- Woelki et al (eds.), Comparability and Evaluation (Dordrecht/Boston/London, Martinus Nijhoff 1994) pp. 167-181. katharina boele-woelki 3.10 Brussels III and Rome IV (Law of Matrimonial Property and the Law of Succession) Two new fields will likewise be taken up within a five-year period. The possibility will be investigated whether legal instruments may be formulated whereby the international jurisdiction, the applicable law and the recognition and enforcement of decisions concerning the law of matrimonial property and the law of succession may be regulated.63 With regard to procedural law problems, these instruments may be denoted Brussels III and with respect to the conflict regulation aspects one could speak of Rome IV.64 In the field of matrimonial property law and the law of succession the Hague Conference on Private International Law has to date given rise to two Conventions which have met with little success. The Hague Convention on Matrimonial Property of 14 March 1978 is only applicable to France, Luxembourg and the Netherlands,65 while the Hague Succession Convention of 1 August 1989 has not yet entered into force. Nevertheless, according to the Action Plan there is an explicit intention to take into account the activities being carried out within this framework by the Hague Conference. Whether this “taking into account” will mean that all EU Member States will ratify both Hague Conventions can only be described as doubtful now that, for example, Germany in no way seems to support these two Conventions. Agreements on the collective ratification of Conventions are not something new, however. Within the framework of judicial cooperation in civil matters, the EU Member States at the beginning of the 1980s all agreed to ratify two Child Abduction Conventions of 1980.66 This objective was attained in 1999 with the accession of Belgium to the Hague Child Abduction Convention. In this way the worldwide system put in place by the Hague Conference will be implemented and the principle of subsidiarity will be respected.67 The EU’s own private international law regulation is in this way not required. The unification of private international law in the EU Member States will indeed be achieved. 63 No. 41 (b) of the Action Plan. 64 All the instruments designated as “Brussels” have thus far concerned international jurisdiction and enforcement, while those designated as “Rome” seem to be reserved for conflicts law. The Action Plan itself has also up until now differentiated between Brussels I and II, and Rome I, II and III. 65 Nederlands Internationaal Privaatrecht (1995) no. 49. 66 This concerns the Hague Child Abduction Convention of 25 October 1980 and the Convention of the Council of Europe on the recognition and enforcement of decisions concerning the custody of children of 20 May 1980. 67 In a similar sense Pirrung (supra n. 34) pp. 42-43. unification and harmonization of pil in europe 4. The Future Role Of The Hague Conference For Private International Law The relationship of the Hague Conference with other international organisations which – as described by Duintjer Tebbens – “have the reduction of legal diversity in the world or a part thereof firmly etched on their banners”, has never been free of problems.68 Attuning its work to that of the Council of Europe, the International Commission on Births, Deaths and Marriages, UNCITRAL, UNIDROIT and the EU has, since the Second World War, become a daily ritual for the staff of the Hague Conference’s Permanent Bureau. In response to the extension of the Council’s powers in the field of judicial cooperation in civil matters in the Maastricht Treaty (Article K.1 sub. 6) Duintjer Tebbens warns of a “new treaty- making power to which the Hague Conference cannot be indifferent”.69 He advocates a healthy subsidiarity, that is to say that regulation by the EC will only be considered after it has become clear, after consultation with the Conference, that a need for such regulation exists and no other way remains open in this respect.70 The EU Member States, which are all members of the Hague Conference,71 did not act accordingly in the realisation and ratification of the Treaty of Amsterdam, however. The transfer of judicial cooperation in civil matters from the Third Pillar to the First Pillar will have far-reaching consequences for the Hague Conference. Until now, the delegates from the European countries have had a heavyweight influence on the preparation and negotiation of private international law conventions. In all their diversity they have formed the “hard core” in The Hague. If these countries must henceforth only speak with one voice, then the quality of the Hague legislation would be at issue. Two reasons for concern may here be voiced: firstly, we can only wait and see who exactly will determine the content of the EU standpoint and, secondly, the task of the Dutch State Commission for Private International Law as the administrative body of the Hague Conference will find itself in considerable difficulties if attuning to the EU has to take place beforehand. This all boils down to a loss of influence by the Netherlands, which is after all the Conference’s birthplace. The question then arises whether the EU, for reasons of efficiency, should not itself become a member of the Hague Conference. Apart from the discussion on whether the EU indeed satisfies the international legal requirements for the posses 68 Cf., Duintjer Tebbens (supra n. 34) p. 671. 69 Ibid., p. 672. 70 Ibid. Cf., also K. Boele-Woelki, Internationaal privaatrecht, Ars Aequi section 63, pp. 2996 2997. 71 See the Statute of the Hague Conference on Private International Law, 31 October 1951, Nederlands Internationaal Privaatrecht (1999) no. 2. 76 katharina boele-woelki sion of legal personality,72 this could give rise to an amendment of the Hague Conference’s statute, with the added consequence that the position of the Dutch State Commission for Private International Law would be the subject of discussion. Finally: there is indeed a great need to attune the activities of the EU and the Hague Conference. Rome II (the applicable law in the case of non-contractual obligations) provides an illustrative example. A number of EU Member States are also bound by the Hague Conventions concerning traffic accidents and products liability.73 All these views are voiced by apprehensive colleagues who have great concern for the many successful conventions emanating from the Hague Conference. The regional unification of private international law must not lead to the situation where universal unification would become dominated and thereby hampered by the EU. This danger does exist because the EU Member States in this field, which is covered by Article 65 EC, have allowed their own autonomy to slip. 5. Concluding Remarks The ratification of the Treaty of Amsterdam, as far as legislative competence in the field of private international law is concerned, has not given rise to any undue commotion in this respect. In the European literature, too, comparatively little attention has been devoted to the consequences of this treaty for European private international law. It is somewhat astonishing that the radical change with regard to the powers of the European Union concerning legislation in the field of private international law has been received more or less silently. The involvement of experts and politicians has not taken place. National Parliaments and also the European Parliament itself appear to have received little information on the changes in private international law legislation. The consequences cannot be immediately examined and therefore there is still a difference of opinion concerning the interpretation of Article 65 EC. This state of affairs can only be regretted. However, the question is whether the Treaty of Amsterdam would produce negative consequences for private international law? The answer to this question depends largely on the quality of future legislation. If European private international law legislative instruments should prove to be efficient, effective, 72 As confirmed by R.A. Wessel, The European Union’s Foreign and Security Policy, A Legal Institutional Perspective (diss. Utrecht 1999), pp. 242-318. He concludes the following: “Through the establishment of a new legal person with an international capacity to act, the states created – most problably unintentionally – a new legal entity, which not only cannot be disregarded by them in their legal practices as members of the Union, but which seems to be as increasingly accepted as such by them as well as by third states” (318). 73 In this sense also J. Sonnenberger, „Europäisches Internationales Privatrecht im Dienst freien Personenverkehrs“, Recht der internationalen Wirtschaft (1999) part 4, editorial. unification and harmonization of pil in europe clear and well attuned among themselves as well as to the existing Hague Conference Conventions, then overall acceptance and approval may be expected. However, the non-positive experience thus far with private international law legislation emanating from Brussels does not provide a sound basis for optimism. This does not apply to the conventions which the Member States entered into before the conclusion of the Treaty of Amsterdam, such as Brussels I and Rome I. The legislative competence of the EU Member States has in any case been allowed to slip. A heavy burden rests on the shoulders of the officials in Brussels who in the future will be charged with preparing and agreeing upon private international law legislation.