European Private Law after the Treaty of Amsterdam

Abstract

The communitarization of the private law of the Member States has been given a significant impetus by the transfer of EC competence regarding judicial cooperation in civil matters from the third to the first pillar of the European Union. That is to say, under a new title of the EC Treaty, a single judicial area will be established; in terms of private law, the fields of private international law is involved to a large extent, whereas the civil procedure of the Member States will be affected to a lesser extent. In particular, the Community is in the process of transforming a number of conventions into secondary EC law, the most important one is the conversion into a Regulation of the Brussels Jurisdiction and Judgement Convention. Although the measures (to be) adopted in this context are ‘real’ acts of Community law – being based on the EC Treaty rather than the Treaty of European Union, the ‘normal’ regime for references for preliminary rulings does not apply. A more restricted regime is applicable. Also, the unity of Community law has been fragmented in that the measures are not binding on Denmark (the UK and Ireland are also not bound by acts adopted under this new Title but have opted in insofar as civil law measures are concerned). Harmonisation of substantive private law, unlike the conflicts of law and civil procedure, has not been affected significantly by the Treaty of Amsterdam. Private initiatives such as the Commission of European Contract Law (Lando Commission) are still the primary focus for proposals involving large scale harmonisation of private law, such as a systematic approximation of the whole of the law of obligations or even a European Civil Code.