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The harmonization of choice of law rules of private international law
in the European Union
L. Hurná, H. Martyniv
Abstract: The aim of this paper is to provide a general overview of the convergence of choice of law rules, belonging to the private international law, within the European Union. During the last decade the European Union has undertaken a broad process of harmonisation of choice of law rules. So far, there were adopted common conflict of law rules applicable to contractual obligations, non-contractual obligations, divorce and legal separation and maintenance obligations. In addition, some other legal documents are under negotiation, for instance, in the fields of succession and matrimonial property.
Key words: European Union, harmonization, private international law, choice of law
rules.
Introduction
This paper discusses issues of private international law from a European perspective. It mainly introduces the convergence of European choice of law rules belonging to the legal system of the European Union.1
Private international law deals with legal relationships between private persons, natural or legal, arising out of situations having a significant connection or connections to more than one country. Private international law covers three basic types of rules: jurisdictional rules (which country's courts can hear a case); choice of law rules (which country's law will the court which hears the case apply); rules relating to the recognition and enforcement of judgments of foreign courts (when will a court in one country enforce the decision of a court in another country).
Whenever a private law issue must be solved in an international context the question arises which substantive rule of decision should be selected. There is no world-wide system of private international law and the choice of law rules (or conflict of law rules) vary from State to State. Each State has its own choice of law rules for deciding which system of law will apply to cases having a foreign element and the courts of each State apply their own national choice of law rules. Since the concept of applicable law varied from one Member State of the European Union to another, the adoption of common Union-wide choice of law rules was important for the development of unified private international law in the European Union and integration of the legal systems of Member States. Over the past decade, building common European private international law rules has become a primary goal for Union institutions.
1 This paper belongs to the research project VEGA no. 1/1083/12 "Selected aspects of the European Private International Law development".
2 De Boer, Th. M. 2009. The purpose of uniform choice-of-law rules: The Rome II Regulation. Netherlands International Law Review, Volume 56, Issue 3, December 2009. p. 301.
Under the original Treaty establishing the European Economic Community (EEC Treaty),3 the former Community4 did not have direct competence in the field of private international law. The work on harmonisation in this area was achieved by conventions5 agreed upon by all Member States pursuant to the ex Article 220 of the EEC Treaty6. The Maastricht Treaty7 established an intergovernmental competence of the Union in Justice and Home Affairs matters, including judicial
o
cooperation in civil matters , which made up the so-called third pillar of the European Union.9 Later the Amsterdam Treaty10 opened up new perspectives for the European legislation of private international law rules. There was created the concept of an "area of freedom, security and justice" and competence in the field of judicial cooperation in civil matters was transferred from the former third pillar of the European Union to the first pillar, which thus afforded the Union institutions the competence to legislate in the area of private international law. Ex Article 65 of the EC Treaty authorised to adopt measures in the field of judicial cooperation in civil matters having cross-border implications, in so far as necessary for the proper functioning of the internal market, including measures promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction. Since the Amsterdam Treaty, new regulations covering the law applicable to contractual and non-contractual obligations and maintenance obligations, had been adopted. The Lisbon Treaty11 opened the way towards deeper integration and cooperation in the field of private international law in the European Union. The previous legal framework was replaced with Title V "Area
of freedom, security and justice" of the Treaty on the Functioning of the European
12
Union (TFEU). While ex Article 65 of the EC Treaty required that any measures in the field of judicial cooperation in civil matters having cross-border implications had to assist with the proper functioning of the internal market, the Lisbon Treaty
3 Treaty establishing the European Economic Community was signed on 25 March 1957 and entered into force on 1 January 1958. The Maastricht Treaty renamed the EEC Treaty to the Treaty establishing the European Community (EC Treaty).
4 Under the Lisbon Treaty the European Community no longer exists under this name but has been replaced and succeeded by the European Union.
5 For example the Convention on the law applicable to contractual obligations (Rome Convention). It was signed in Rome on 19 June 1980 and entered into force on 1 April 1991.
6 "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 simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards."
7 Treaty on European Union (TEU), informally called the Maastricht Treaty, was signed on 7 February 1992 and entered into force on 1 November 1993.
8 According to the ex Article K.1 of the Treaty on European Union, judicial cooperation in civil matters belonged to the list of matters of common interests of Member States „for the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community".
9 The pillar structure of the European Union was legally introduced by the Maastricht Treaty and was formally abandoned by the Lisbon Treaty. The European Union consisted of three pillars: the European Communities (first pillar), the Common Foreign and Security Policy (second pillar) and cooperation in the fields of Justice and Home Affairs (third pillar).
10 Amsterdam Treaty was signed on 2 October 1997 and entered into force on 1 May 1999.
11 Lisbon Treaty was signed on 13 December 2007 and entered into force on 1 December 2009.
12 Lisbon Treaty renamed the EC Treaty to the Treaty on the Functioning of the European Union.
modified this requirement. According to the new Article 81 of the TFEU, the European Union institutions may adopt such measures "particularly when necessary for the proper functioning of the internal market", it means the internal market criterion is no longer absolute requirement. The list of areas of potential action also includes the adoption of measures aimed at ensuring compatibility of Member States' rules on jurisdiction and conflicts of law.
Up to the present day, as part of ongoing efforts by the European Union to create a genuine European area of freedom, security and justice, the Union has adopted several legal instruments which deal with issues of applicable law for cases having a foreign element. The application of these legal instruments is restricted to situations involving a conflict of laws it means situation linked to at least two different States. They lay down uniform rules to determine which national law should apply to issues in cases with an international dimension. They do not apply to what is called a purely domestic situation having connecting factors with one single country.
In the recent years, the choice of law rules have been developed and harmonized in the European Union legislation in the form of regulations. The term "harmonisation" is commonly used to denote all efforts to achieve an approximation of the laws of the European Union Member States, either by directives or regulations. Since a regulation does not leave any room for different implementations, it results in the creation of uniform law. So far, all measures promoting the compatibility of the rules concerning the conflict of laws were
13
geared to unification rather than harmonization. Due to their self-executing nature, the regulations dealing with issues of applicable law can be seen as a single set of uniform rules which apply directly to Member States and replace their domestic law in those situations where there is a conflict of law. The rules are a coordinated whole and aim to synchronise the laws applicable to legal relationships irrespective of the country of the court in which an action is brought.
Although regulations in general are binding and directly applicable in all European Union Member States without any further transformation needed, this is not true of regulations based on Title V "Area of freedom, security and justice" of the TFEU. Special arrangements (opt outs) enable some Member States in relation to Title V, namely, Denmark, Ireland and the United Kingdom to remain outside Title V but allow the latter two to opt in to individual measures adopted under Title V. It means such regulations do not automatically apply to these three Member States.
Adopted documents
An important step in the development of unified private international law in the European Union was the adoption of uniform European conflict of law rules governing the process by which the law applicable to contractual and to noncontractual obligations is selected.
13 De Boer, Th. M. 2009. The purpose of uniform choice-of-law rules: The Rome II Regulation. Netherlands International Law Review, Volume 56, Issue 3, December 2009. p. 299.
The Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome14 I Regulation) harmonises the rules of conflict of laws applicable to contracts in civil and commercial matters. By way of background, the Rome I Regulation has reformed and replaced the 1980 Rome Convention in the Member States of the European Union. Besides the change of legal nature into a Union instrument, the original intention was to take advantage of this transformation in order to modernise some of its provisions.15 With this document significant parts of the private international law relevant to international business transactions have been unified within Member States of the European Union except Denmark.16 The Rome I Regulation has universal application because it also applies in case the law of a Non-Member State is made applicable. The regulation applies to contracts
17
concluded after 17 December 2009.
In principle Rome I Regulation endeavours to establish clear cut rules on the applicable law. Legal certainty is expressly labelled to be the general objective of the regulation. Conflict of law rules are shaped to be highly foreseeable and this goal is reached first by allowing parties to choose the applicable law, and second by fixing the relevant criterion on which to rely for a comprehensive catalogue of contracts.
International contracts under Rome I Regulation are preferentially governed by the law chosen by the parties. The parties' freedom to choose the applicable law is one of the cornerstones of the system of conflict of law rules in matters of
contractual obligations. The freedom available to the parties is considerable: they
18
may choose any State law (whether or not it is the law of a Member State ), even if it is unrelated to the subject of the contract, and they may also anytime change their original choice.19 Recital 13 of the Rome I Regulation clarifies that the parties are always allowed to incorporate by reference in their contract to a non-State body of law or an international convention. Hence, parties can refer to a non-State law as lex contractus. However, this incorporation by reference takes place within the
limits of the domestic mandatory provisions of the State law applicable to the
20
contract, as determined under the conflict of laws rules of the Rome I Regulation. Besides the restriction to State law, there are no additional restrictions as to which law parties may choose. There is no requirement of the chosen law to bear some "reasonable" or "substantial" relationship to the parties or the transaction. Choice of law can be made expressly by a choice of law clause either in writing or orally.
14 The commonly used abbreviation "Rome" indicates that the European Union instrument contains conflict of law rules.
15 Garcimartín Alférez, F. J. 2008. The Rome I Regulation: Much ado about nothing? The European Legal Forum, 2/2008. p. I-61.
16 Denmark is bound by the Rome Convention.
17 Rome I Regulation, Article 28.
18 Rome I Regulation, Article 2.
19 Rome I Regulation, Article 3.
20 Garcimartín Alférez, F. J. 2008. The Rome I Regulation: Much ado about nothing? The European Legal Forum, 2/2008. p. I-67.
Choice of law can be made as well implicitly, it means it can be derived from the terms of the contract or the circumstances of the case.
Where the parties have not determined which law shall be applicable to their contract, Rome I Regulation first of all lists a catalogue of eight specific contracts (for instance, contracts for the sale of goods, contracts for the provision of services, contracts concerning immovable property, franchise and distribution contracts,
contract for the sale of goods by auction) for which it directly specifies the
21
applicable law. Most of the specifically addressed contracts are presumed to be
connected with the country where the party who is to provide the characteristic
22
performance is habitually resident. If none, or more than one of the specified rules apply to a contract, the applicable law will be determined based on the country of residence of the principal actor carrying out the contract. If, however, the contract is related more closely to another country than provided by these rules, the law of that country will be applied (so-called "escape clause" which allows a departure from the specific rules). The same applies when no applicable law can be
23
determined. In addition, in the absence of choice of applicable law, the Rome I Regulation expressly lays down special conflict of law rules with regard to four
24
different types of contracts: contract for the carriage of goods and passengers , consumer contracts25, insurance contracts26 and individual employment contracts27.
The Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II Regulation) harmonises the conflict of law rules for non-contractual obligations in civil and commercial matters. The Rome II Regulation complements the Rome I Regulation by specifying harmonized choice of law rules for torts and restitutionary obligations. Uniform regulation detailing the governing law for non-contractual obligations is an absolute novelty for European countries. It applies in all European Union Member States, except Denmark. The Rome II Regulation is to have
universal application so the uniform conflict rules laid down in the regulation can
28
designate the law of European Union Member State or of a third country. The regulation is applicable to events giving rise to damage occurring on or after 11 January 2009.29
The Rome II Regulation divides non-contractual obligations into two major
30
categories, those arising out of a tort or delict and the second category includes quasi-delictual or quasi-contractual obligations, including in particular unjust
21Rome I Regulation, Article 4 (1).
22 Rome I Regulation, Article 4 (2).
23 Rome I Regulation, Article 4 (3), (4).
24 Rome I Regulation, Article 5.
25 Rome I Regulation, Article 6.
26 Rome I Regulation, Article 7.
27 Rome I Regulation, Article 8.
28 Rome II Regulation, Article 3.
29 Rome II Regulation, Articles 31 and 32.
30 Rome II Regulation, Articles 4 - 9.
enrichment (including payment of amount wrongly received), negotiorum gestio (agency without authority), and culpa in contrahendo (the notion of culpa in contrahendo includes not only the breakdown of contractual negotiations but also the violation of a duty of disclosure and any other non-contractual obligations
31
directly linked to the dealings preceding the conclusion of a contract).
Pursuant to the Rome II Regulation, parties are entitled to submit noncontractual obligations to the law of their choosing32 provided that such choice of law is made in an agreement entered into after the event giving rise to the damage (a post-tort agreement) or in an agreement concluded before the event giving rise to the damage (a pre-tort agreement) provided that the pre-tort agreement has been freely negotiated by the parties pursuing a commercial activity.
If the parties do not specify their choice of governing law, under the Rome II Regulation the general rule is that the law governing the non-contractual obligations arising out of a tort or delict is the lex loci damni, i.e. the law of the country in which the damage arises or is likely to arise irrespective of the country in which the event giving rise to the damage occurred or of the country or countries in which indirect consequences of that event arise.33 This rule is, however, subject to certain exceptions. When the parties (the person claimed to be liable and the person who has allegedly sustained damage) have their habitual residence in the same country, the law of this common country will apply.34 The "escape clause" allows a judge to apply in any case the law of the country that, in light of all of the circumstances of the case, is manifestly more closely connected with the tort or
35
delict in question. There are specific regimes for special types of torts or delicts, namely product liability, unfair competition and acts restricting free competition, environmental damage, infringement of intellectual property rights, and industrial actions.36 Special rules also apply to cases where damage is caused by an act other than a tort or delict (such as unjust enrichment, negotiorum gestio, and culpa in contrahendo), which cover all the types of action falling within this category.
The increasing mobility of citizens within the European Union has resulted in an increasing number of "international" family matters where the spouses and other family members are of different nationalities, or live in different Member States or live in a Member State of which they are not nationals. Many cross-border family matters are already regulated by European Union law and the number of regulations is constantly expanding. Divorce, legal separation, and parental responsibilities, including child abduction and maintenance obligations, are already covered. The property relations of international couples (spouses and registered partners) and inheritance will be added in the near future. Yet the Union
31 Rome II Regulation, Articles 10 - 12.
32 Rome II Regulation, Article 14 (1).
33 Rome II Regulation, Article 4 (1).
34 Rome II Regulation, Article 4 (2).
35 Rome II Regulation, Article 4 (3).
36 Rome II Regulation, Articles 5 - 9.
has left untouched civil status, marriage, registered partnership, cohabitation, adoption, parentage, the law on surnames and the protection of adults.37
In its 2005 Green Paper on applicable law and jurisdiction in divorce
38
matters , the Commission suggested to harmonize choice of law rules regarding matrimonial matters. This resulted in the drafting of a Rome III Regulation. However, due to the opposition of a number of Member States, the Rome III Regulation has been rejected. In 2010 the Commission announced a new proposal on the possibility of harmonizing choice of law rules regarding matrimonial matters. The objectives set out in this new proposal were similar to those set out in the 2005 Green Paper but the new proposal was based on the enhanced cooperation
39
mechanism. The decision authorizing enhanced cooperation shall be adopted only when the objectives of a Union-wide cooperation cannot be attained within a reasonable period. This last resort requirement was considered fulfilled, since after almost two years of negotiations no unanimity had been reached.
The Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (Rome III Regulation) will apply from 21 June 2012 in the fourteen European Union Member States which currently participate in the enhanced cooperation (Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia). These Member States have been authorised to participate in the enhanced cooperation by Council decision40 and are bound by the uniform rules that will determine the law applicable to divorce and legal separation. The national conflict of law rules of the fourteen participating Member States will be replaced by the conflict of law rules of Rome III Regulation. The other thirteen Member States do not participate in the Rome III Regulation for various reasons, which are based on the content of the proposed uniform conflict of law rules41 or are solely for political reasons, but may opt in at any time in accordance with the Article 328 of the TFEU.
The rules of the Rome III Regulation are applied only if the divorce or legal separation has cross-border aspects. Obviously if spouses have different nationalities or habitual residences at the time the competent authority is seized, the applicable national law must be determined.
37 Boele-Woelki, K. 2010. For better or for worse: The Europanization of international divorce law. Yearbook of Private International Law, Volume 12, p. 21.
38 Commission Green Paper on applicable law and jurisdiction in divorce matters, COM(2005) 82, 14 March 2005.
39 Article 20 of the TEU and Articles 326-334 of the TFEU lay down the conditions under which a group of Member States (at least nine Member States) can be permitted to proceed with a proposal for enhanced cooperation between them. Enhanced cooperation allows those countries of the Union that wish to continue to cooperate in particular area more closely together to do so within European Union structures but without the other members being involved. The mechanism of enhanced cooperation has never been used, although it was introduced by the Amsterdam Treaty. Thus, such form of closer cooperation between Member States has not yet proven successful. Enhanced cooperation in judicial cooperation now provides a potential precedent for enhanced cooperation in the other areas.
40 Council decision of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (2010/405/EU).
41 For example Slovak Republic still considers divorce to be a State controlled institution, which is irreconcilable with the notion of party autonomy.
The law designated by the Rome III Regulation shall apply whether or not it
42
is the law of a participating Member State. The choice of law rules can lead to the application of foreign law, including not only the law of another Member State (intra-Union situation) but also the law of third country (extra-Union situation).
The parties are allowed to designate the applicable law, but spouses can select only a law with which they have a close connection.43 The spouses may choose the applicable law from the following laws: the law of the State where the spouses are habitually resident at the time the agreement is concluded; or the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or the law of the State of nationality of either spouse at the time the agreement is concluded; or the law of the forum. Once the spouses have determined the applicable law, they are bound by their choice until and unless they both agree to a modification. This may occur at any time before the court is seized. To ensure that spouses are aware of the implications of their choice, the agreement must be expressed in writing, dated and signed by the spouses.44
In the absence of such a choice, the law to be applied is objectively to be determined by the court. The following laws apply: the law of the State where the spouses are habitually resident at the time the court is seized; or the law of the State where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or the law of the State of which both spouses are nationals at the time the court is seized; or the law of the State where the court is seized.45
One of the main arguments of the Member States who chose not to engage in Rome III Regulation was that the proposed conflict of law rules might lead to the application of foreign law. Although Rome III Regulation accepts the outcome of applying foreign law, when the applicable divorce law fails to grant one of the spouses equal access to divorce or legal separation on grounds of her sex, even if that law has been chosen by the spouses, the law of the forum shall apply instead ("safety mechanisms").46 The application of lex fori safeguards the fundamental principle of equality between spouses.
Another novelty is the harmonization of choice of the applicable law as to the maintenance obligation. Council adopted Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance (Maintenance Regulation). This Regulation applies to maintenance obligations arising from a family relationship, parentage, marriage or affinity from 18 June 2011. The
42 Rome III Regulation, Article 4.
43 Rome III Regulation, Article 5.
44 Rome III Regulation, Article 7.
45 Rome III Regulation, Article 8.
46 Rome III Regulation, Article 10.
primary aim of the Maintenance Regulation is to simplify the enforcement of maintenance orders between European Union Member States as between
47
signatories to the Hague Protocol. However, the regulation contains also provisions relating to jurisdiction and applicable law which are more wide reaching. The law applicable to maintenance obligations shall be determined in accordance with the Hague Protocol in the Member States bound by that
48
instrument. The Hague Protocol has been signed by all the Member States apart from the United Kingdom and Denmark. The
The Hague Protocol applies even if the applicable law is that of a non-Contracting State.49 There is introduced party autonomy for the maintenance obligations in the Hague Protocol.50 The maintenance creditor and debtor for the purpose only of a particular proceeding in a given State may expressly designate the law of that State as applicable to a maintenance obligation. This provision favours the applicability of the law of the forum. In addition, the maintenance creditor and debtor may at any time designate one of the following laws as applicable to a maintenance obligation: the law of any State of which either party is a national at the time of the designation; the law of the State of the habitual residence of either party at the time of designation; the law designated by the parties as applicable, or the law in fact applied, to their property regime; the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation. In the absence of such a choice, there is a general rule that maintenance obligations are governed by the law of the State of the habitual residence of the creditor, save where the Hague Protocol provides otherwise. Documents under negotiation
In Member States there also exist great disparities between the applicable rules of substantive law and private international law governing the property effects of marriage or registered partnerships. In July 2006 the Commission adopted a Green Paper on the conflict of laws in matters of matrimonial property regimes, including jurisdiction and mutual recognition.51 This launched wideranging public consultations, the results of which confirmed the need for European legislation, both for matrimonial property regimes and the property consequences of registered partnerships.
In March 2011 the Commission published two draft regulations dealing with the Private international law on the effects on property rights of marriage and registered partnerships. Because of the distinctive features of marriage and
47 In the framework of The Hague Conference on Private International Law, the European Union and its Member States took part in negotiations which led to the adoption on 23 November 2007 of the Convention on the International Recovery of Child Support and other Forms of Family Maintenance (Hague Convention) and the Protocol on the Law Applicable to Maintenance Obligations (Hague Protocol). Both those instruments should therefore be taken into account in this Regulation.
48 Maintenance Regulation, Article 15.
49 Hague Protocol, Article 2.
50 Hague Protocol, Articles 7-8.
51 Commission Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition, C0M(2006) 400, 17 July 2006.
registered partnerships, and of the different legal consequences resulting from these forms of union, the Commission proposed two separate regulations, one on jurisdiction, applicable law and the recognition and enforcement of decisions in
52
matters of matrimonial property regimes, and the other on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property
53
consequences of registered partnerships. Since in only fifteen Member States same-sex couples are allowed to formalize their relationship it is to be expected that the regulation on the property consequences of registered partnerships will be adopted under the enhanced cooperation procedure.
The Commission's proposals set out to answer the question which law is applicable to the liquidation of a matrimonial property regime or the property consequences of a registered partnership. Different approaches are proposed for marriage and for registered partnerships because of the specific features of each institution. Married spouses are given the option of choosing the applicable law. Their choice is limited, however, to prevent them from choosing a law with no connection to their marriage. The choice is between the law of their common habitual residence or that of their country of nationality. The proposal also contains a list of connecting factors to identify the applicable law in cases where no law has been chosen. If the spouses change their habitual residence from one Member State to another, they may, for example, easily change the law applicable to their matrimonial property regime. The same freedom is not however proposed for registered partners. The law applicable to the property consequences of registered partnerships is clearly defined in the proposal. It is the law of the State where the partnership was registered. This rule will have the advantage of making it clearer which law applies to a couple in a registered partnership and what the possible property consequences might be in the event of their separation.
The expansion of the European Union, and increasing mobility within it, have led to more and more people moving from one Member State to another to work or to retire, and owning property in another Member State. The laws of the Member States governing who is entitled to what of the deceased's property and how that estate is to be administered differ fundamentally. This makes dealing with a succession with cross-border implications potentially very complex. The difficulties facing those involved in a transnational succession mostly flow from the divergence in substantive rules, procedural rules and conflict rules in the Member States. To simplify these matters, there is a clear need for the adoption of harmonised European rules. In 2005 the Commission issued a Green Paper on
52 The proposal for a Council Regulation of 16 March 2011 on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, COM(2011)126.
53 The proposal for a Council Regulation of 16 March 2011 on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships, COM(2011)127.
succession and wills.54 In October 2009 the Commission brought forward their proposal for a regulation to simplify the rules on cross-border succession.55
The proposal includes rules which prescribe that the same law should be applicable to a given succession as a whole, irrespective of the nature and the location of the assets belonging to the estate. According to the proposal, the criterion of the deceased's habitual residence at the time of his or her death will determine which law will be applied to the succession case, unless the deceased has indicated another decision. Although the choice of law in succession matters is not found in the laws of most Member States, the proposal introduces the possibility for individuals to stipulate in their wills that the law of their own nationality should apply to their succession when they die.
Conclusion
For over a decade, European private international law has been under construction. Some parts of this legislative edifice are completed and in use, some parts are in the midst of construction, and others are still on the drawing board.56 The existing European Union law and the instruments under negotiation provide the necessary consistency for judicial cooperation in civil matters within Union. All European choice of law measures of the private international law do not affect the Member States' substantive law. In accordance with the founding Treaties, substantive law remains a matter of national competence. The main objective of these measures is to ensure that a given legal situation is adjudicated under the substantive law of the same country, irrespective of the fact which court and in which European Union Member State decides the matter, and thus contribute to establishing a genuine European area of justice. The introduction of a set of uniform European choice of law rules should be welcomed by all parties engaging in international legal relationships. The main purpose of uniform choice of law rules is to reduce uncertainty as to the law governing international legal relationships. Uniform conflicts rules ensure the stability of cross-border legal relationships, they reduce the practice of "forum shopping" (in case claimants try and litigate their claims in countries whose courts will, they believe, apply the law most favourable to them), and they enable prospective litigants to predict the choice of law outcome of their lawsuit. Decisional harmony is the principal aim of European choice of law unification.
Bibliography
54 Commission Green Paper on succession and wills, COM(2005) 65, 1 March 2005.
55 The proposal for a Regulation of the European Parliament and of the Council of 14 October 2009 on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession, C0M(2009) 154.
56 Boele-Woelki, K. 2010. For better or for worse: The Europanization of international divorce law. Yearbook of Private International Law, Volume 12, p. 20.
1. Boele-Woelki, K. 2010. For better or for worse: The Europanization of international divorce law. Yearbook of Private International Law, Volume 12, p. 17-41.
2. Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance.
3. Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation .
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7. Proposal for a Council Regulation of 16 March 2011 on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, C0M(2011)126.
8. Proposal for a Council Regulation of 16 March 2011 on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships, C0M(2011)127.
9. Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations.
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11. Treaty on European Union. URL:http//europa.eu
12. Treaty on the Functioning of the European Union. URL:http//europa.eu
