Groupe Européen de Droit International Privé

From Max-EuP 2012

by Kurt Siehr

1. Development and aims

The Groupe européen de droit international privé (GEDIP) was founded at a conference which took place in Louvain-la-Neuve from 3–5 October 1991. Since then, it has become an association under Luxembourg law. The internal organization and purpose of the GEDIP was fixed as follows at the Louvain-la-Neuve conference.

(1) The aim of the GEDIP is that European scholars of private international law (PIL) should regularly observe the developments in European PIL, exchange information and make proposals during annual sessions. At these sessions European PIL is to be accurately promoted, especially by critical analysis of the Brussels Convention of 1968 as well as the Rome Convention of 1980.

(2) For this reason, the GEDIP will observe the entire field of PIL, including the law of aliens, and will contribute to the activities of the European Commission through discussion and proposals and promote the uniform interpretation of European PIL by national courts and the ECJ. In so doing, the GEDIP will be mindful of the relations with non-member states.

(3) Lectures and special study programmes are to contribute to a better understanding of and effective research in the field of European PIL.

(4) The group is to be called the Groupe européen de droit international privé and is to be composed of two or three members of each EU Member State as well as of Switzerland. Sessions will be held every year in September. English and French are the working languages and translations will not be used. After thorough discussion of the appropriate publication policy it was finally agreed that the results of the sessions will be sent to the European Commission. A secretariat shall exist to coordinate the Group’s activities. Also discussed at the founding conference was the matter of financing of the sessions and the possibility of the EC Commission acting as a sponsor. For a number of years all members of the GEDIP have paid travelling expenses out of their own budget.

At the first conference in Louvain-la-Neuve in 1991 the following countries were represented by the individuals respectively named: Belgium: Marc Fallon (Louvain-la-Neuve), François Rigaux (Louvain-la-Neuve) and Michel Verwilghen (Louvain-la-Neuve); France: Catherine Kessedjian (Paris II) and Paul Lagarde (Paris I); Germany: Christian von Bar (Osnabrück) and for Erik Jayme (Heidelberg) his assistant Oliver Furtak; Italy: Laura Forlati Picchio (Venice/ Padova), Andrea Giardina (Rome) and Fausto Pocar (Milan); Luxembourg: Fernand Schockweiler; Netherlands: Hans Ulrich Jessurun d’Oliveira (Amsterdam) and Anton VM Struycken (Nijmegen/The Hague); Portugal: Rui M. Moura Ramos (Coimbra); Spain: Alegría Borras Rodriguez (Barcelona) and Julio Diego Gonzales Campos (Madrid) and Switzerland: Andreas Bucher (Geneva) and Kurt Siehr (Zürich). Supranational and international organizations were also represented: the European Court of Justice by Christian Kohler, the Legal Services of the European Parliament by Harry Duintjer Tebbens, and the Hague Conference on PIL by Georges Droz and later by Hans van Loon. With the enlargement of the European Community, other members of the former and new Member States were nominated and joined the GEDIP: Jürgen Basedow (Germany), Michael Bogdan (Sweden), Francisco Garcimartin Alferez (Spain), Hélène Gaudemet-Tallon and Étienne Pataut (France), Trevor Hartley and Robin Morse (United Kingdom), Karl Kreuzer (Germany), Patrick Kinsch (Luxembourg), Ole Lando and Peter Arnt Nielsen (Denmark), Gustav Möller (Finland), Tomasz Pajor (Poland), Monika Pauknerová (Czech Republic), Gerte Reichelt (Austria), Simeon Symeonides (Cyprus), Peter Terry (Ireland), Helge Thue (Norway) and Spyridon Vrellis (Greece). Members of the General Directorate Justice of the European Commission take part in the sessions as observers and as individuals able to inform the GEDIP about Commission activities.

So far, the presidents of the GEDIP have been François Rigaux (1991–93), Fausto Pocar (1994–96), Karl Kreuzer (1997–99), Hélène Gaudemet-Tallon (2000–02), Alegría Borras (2003–05), Michael Bodgan (2006–08) and Christian Kohler (2009–11). Marc Fallon and later Patrick Kinsch have acted as Secretary. The internet address of the GEDIP is: <http://www.gedip-egpil.eu www.gedip-egpil.eu> .

2. Activities

The GEDIP has conducted research in four main areas which, according to historical sequence, are the following: reform of the Brussels Convention of 1968 into the EC Regulation which is now Reg 44/2001; codification of the international law of obligations which became the Rome I Regulation 593/2008 and the Rome II Regulation 864/2007; the Brussels II Regulation which became Reg 1347/2000, replaced by Reg 2201/2003; codification of international family and succession law (Rome III and Rome IV). Efforts to this effect were mostly undertaken by small commissions and later discussed and put up for resolution at the subsequent plenary sessions. Within these four different areas, the GEDIP tried to solve 12 specific questions.

a) The protection of cultural property within the Community, a topic on which Kurt Siehr gave a paper at the first session in Louvain-la-Neuve, was quickly resolved with the inception of the internal market by Regulation 3911/92 and Directive No 93/7 and the implementation measures by the respective Member States. This problem was no longer addressed in subsequent sessions.

b) The revision of the Brussels Convention of 1968 as well as of the Lugano Convention of 1988 was the subject matter of the second and third sessions in Milan in autumn 1992 and in Heidelberg in autumn 1993. The main topic was the extension of the conventions to matters of persons and to family law. At that time there was still a prohibition on divorce in Ireland (later abolished by the Family Law (Divorce) Act 1996), and in many states the principle of nationality still prevailed. Nonetheless the GEDIP took the Brussels Convention as a model and tried to extend its application to matters of family law (including divorce, matrimonial property, descent of children, adoption, but excluding the protection of minors) and to succession. Of particular importance was the idea of providing for exclusive and mandatory heads of jurisdiction which were to preclude any jurisdiction under the national law of Member States (see the proposal in [1994] IPRax 76). These proposals were soon given up in favour of the special treatment of family matters in a separate instrument and the revision of the form of regulations. Since the session in The Hague in 1997, the GEDIP has been discussing the revision of the Brussels and Lugano Conventions as well as the project of Brussels II respectively. The discussions at Vienna in 2003 focused on projects to abrogate any requirement of exequatur of decisions of Member States and the recognition of judgments of third states in cases where they violate the Convention of Human Rights.

c) Very early on (since the Barcelona session in 1994 at the latest) the GEDIP pointed out the contradictions and inconsistencies between the Brussels Convention and the Rome Convention on the one hand and certain directives on the other. For instance, Art 6(2) of Directive 93/13/ EEC on unfair terms in consumer contracts contains a conflict of laws rule which can hardly be reconciled with the Rome Convention. Therefore, and in accordance with a paper by Erik Jayme and Christian Kohler, the GEDIP passed a resolution drawing attention to this case of poor coordination at the Barcelona session. This resolution was renewed and amended in Oslo in 1999.

d) Even before the Treaty of Amsterdam was concluded on 2 October 1997 the GEDIP was aware of the fact that the increasing codification of PIL by the European Community might lead to a decreasing importance of other organizations active in this field, especially of the Hague Conference on PIL. For this reason a resolution was passed at the Geneva session of 1995 resolving that the EC and other international organizations in the field of PIL should cooperate. Since then, however, this issue has never been dealt with satisfactorily. The Member States of the European Community have lost their competence in the field of PIL to the EC and the EC joined the Hague Conference (cp. the Resolution of the Council of 5 October 2006, OJEC 2006 No L 297 p 1); furthermore, the Member States are limited to an indirect competence in matters of PIL and international civil procedure.

e) A still unsolved problem was addressed by Trevor Hartley in Geneva in 1995: the application of foreign law in civil procedure. Here the continental system of iura novit curia clashes with the English system in which foreign law has to be pleaded. In important cases with qualified legal counsel and in cases where proof of foreign law is missing there may be little difference in practice. In other cases, however, there might be considerable differences between the procedure applied by courts on the Continent and English courts despite the fact that private international law is harmonized or unified.

f) In Venice (1996) the codification of international contracts and torts was the main point of discussion. Since that time and until the final drafts of the Rome I Regulation and the Rome II Regulation, the GEDIP constantly addressed this topic. When the GEDIP took up the topic in 1996, 22 years had passed since the discussion had first ended at the EC-Colloquium of Copenhagen (six members of the later-founded GEDIP were present at this EC meeting). At the Venice session of 1996 it was agreed that four basic principles of international tort law should be as close as possible to the Rome Convention: the principle of the closest connection; the law of the common habitual residence of tortfeasor and victim; the law at the place of suffering the damage; the special clauses of evasion. The final draft of a Rome II convention on international torts drafted by a special commission of the GEDIP was discussed in The Hague (1997), passed at the next session in Luxembourg (1998) and finally published in (2001) 65 RabelsZ 550. As early as Oslo (1999) the GEDIP started discussing the revision of the Rome Convention as this topic had been accepted by the Council and the Commission in their action plan. In Rome (2000) a proposal for an enhanced and simplified consumer protection regime in the Rome and the Brussels Convention was finalized (see text and commentary in Revue critique de droit international privé 2000, 929 ff). In Lund (2001), however, more basic changes and revisions were discussed. In particular, labour contracts (Art 6) and formalities (Art 9) were critically discussed and appropriate proposals made. In Paris (2002) the green paper of the Commission on converting the Rome Convention into a Rome I Regulation was discussed and proposals for reform were submitted. In Vienna (2003) proposals for the law applicable to assignment and subrogation were formulated. Meanwhile, the Rome I Regulation has now been passed and entered into force on 17 December 2009.

In Paris (2002) the GEDIP started discussing the future Rome II Regulation. In Tenerife (2004) media delicts were treated and, after long discussions, were ultimately not regulated according to Art 1(2)(g) Rome II Regulation but instead left to national conflicts law. The country of origin principle was not accepted for European PIL. The Rome II Regulation of 11 July 2007 entered into force on 11 January 2009. In Hamburg (2007) further information about the entering into force of the Rome II Regulation was given.

g) At the Oslo session in 1999 and thereafter in Rome in 2000 the discussion of family law was taken up with a discussion of non-marital relationships. The centre of the discussion was the question whether the European Community should restrict uniform norms on the recognition of such relationships created abroad and whether they should be accepted with the same effects known in the country of origin. A proposal to this end was formulated in Tenerife in 2004.

In Vienna (2003) the law applicable to divorce and separation of spouses was formulated for the first time. Proposed were a conflicts rule with subsidiarily applicable connecting factors and a choice of law clause concerning specific laws. Since Sweden declined the proposal for a divorce regulation (see COM(2006) 399 final) in the summer of 2008, other Member States attempted to unify international divorce law by an enhanced cooperation and finally succeeded in doing so with the enactment of the Rome III Regulation of 20 December 2010 on cooperation in the area of the law applicable to divorce.

In Coimbra (2006) the green paper of the Commission on international matrimonial property law (COM(2006) 400 final) including jurisdiction and recognition was discussed and the questions of the Commission were answered.

h) At the Paris session in 2002 the influence of basic and human rights (human rights and fundamental rights (ChFR and ECHR)) on conflicts law was treated. During these deliberations the principle of nationality as a connecting factor as well as the prohibition of discrimination (discrimination (general)) were discussed. This discussion was continued in Tenerife (2004) with a paper presented by Laura Forlati Picchio.

i) Answering the questions of the green paper on international succession law of 1 March 2005 (COM(2005) 65 final) was the main subject matter treated at the Chania session in 2005. The initiative was welcomed and relevant questions were discussed.

j) The session in Coimbra (2006) mainly engaged with the opinion of the European Court of Justice of 7 February 2006 on the competence of the Community to conclude the Lugano Convention II (ECJ Case 1/03 – Lugano Opinion [2006] I-1145). What are the consequences of the EU’s competence to preclude national legislation in third states? In the field of the applicable law it is easy to achieve universal rules (also applicable to third states), and this has already been done in the Rome I and Rome II Regulations. It is less clear, however, how rules on exclusive jurisdiction vis-à-vis third states and rules on the recognition of third state judgments should be formulated. Since then, the GEDIP has given consideration to this problem. In Hamburg (2007) initial proposals on jurisdiction vis-à-vis third states were submitted and published. In Bergen (2008) the discussion on this important matter was continued, and proposals for changes of the Brussels I Regulation were formulated in Padova (see Rivista di diritto internazionale privato e processuale 2010, 344–8).

k) In Coimbra (2006) Marc Fallon developed the idea that Andrea Giardina had put to discussion in Oslo: the codification of general principles of conflicts law. This topic will be dealt with by the GEDIP in the future.

l) On 15 March 2007 the Commission published a green paper on the review of the consumer acquis (Official Journal 2007 C 61/1). According to No 2.2(2) of the Green Paper, the review is not intended to touch upon conflicts law of the EU. At the discussion in Hamburg (2007), however, it was found that the review also raises questions of conflicts law.

m) In Copenhagen (2010) the Groupe discussed and finally drafted Le règlement ‘Bruxelles I’ et les décisions judiciaires rendues dans des Etats non membres de l’Union européenne, IPrax (2011) 103 ff.

n) Apart from engaging in EU projects, members of the GEDIP occasionally present papers (with pertinent discussions) on potential projects or court decisions. Harry Duintjer Tebbens (Chief of Legal Services at the ECJ) spoke on the international law of competition, Karl Kreuzer (Würzburg) on the recognition of foreign contractual mobile securities, and Trevor Hartley (London) on ‘The European Union and the Systematic Dismantling of the Common Law of Conflict of Law’. In Coimbra (2006) Paul Lagarde provided a review of the decision of the ECJ on the case Standesamt Niebüll (ECJ Case C 96/04 [2006] I-3561) on the international law of surnames, and Patrick Kinsch took up the case of the European Court of Human Rights (ECtHR) Eskinasi et Chelouche v Turkey (ECtHR No 14699 (95) on fair hearing and fair trial. In Hamburg (2007) Patrick Kinsch addressed the decision of the ECtHR in Wagner v Luxembourg (ECtHR No 76240/01) on the recognition of an adoption decree given in Peru. In Bergen (2008) Jürgen Basedow and Kurt Siehr gave papers on maritime torts under the Rome II Regulation, and Laura Forlati Picchio spoke about Les sanctions économiques et le droit international privé communautaire. In Copenhagen (2010) Jürgen Basedow presented the paper Le rattachement à la nationalité et les conflits de nationalités en droit de l'Union Européenne.

o) At every session Hans van Loon has informed the GEDIP about the work of the Hague Conference; Erik Jayme and Christian Kohler regularly summarize new developments in European PIL and publish these GEDIP reports in German in the monthly journal Praxis des Internationalen Privat- und Verfahrensrechts (IPRax).

3. Results

It is hard to ascertain whether and to what extent the GEDIP has succeeded in improving European legislation. But what can be said is that the presence of Commission representatives at the sessions has ensured that the work and proposals of the GEDIP have so far reached the body for which they are intended.

Literature

Session reports in Louvain-la-Neuve (1991): IPRax (1992) 128; Revista española de derecho internacional (1991) I 596; Riv Dir Intern Priv & Pros 27 (1991) 1139; Rev crit dr int priv 81 (1992) 204; Heidelberg (1993): IPRax (1994) 67; Revue belge du droit international 26 (1993) 645; Revista española de derecho internacional (1993) 637; Riv Dir Intern Priv & Pros 29 (1993) 1095; Barcelona (1994): IPRax (1995) 58; Revue belge du droit international 27 (1994) 717; Revista española de derecho internacional (1994) 919; Riv Dir Intern Priv & Pros 30 (1994) 932; Geneva (1995): IPRax (1996) 65; Revista española de derecho internacional (1995) II 502; Riv Dir Intern Priv & Pros 31 (1995) 899; Venice (1996): Revista española de derecho internacional (1996) II 355; The Hague (1997): Anuario Español de Derecho Internacional Privado (2000) 969; IPRax (1998) 140; Revue belge du droit international 30 (1997) 682; Luxembourg (1998): Anuario Español de Derecho Internacional Privado (2000), 969: IPRax (1999) 298; Revue belge du droit international 30 (1997) 682; Rev crit dr int priv 87 (1998) 802; Revista española de derecho internacional (1998) II 296; Oslo (1999): Anuar. esp.der.int.priv. (2001) 1195; IPRax (2000) 155; Revista española de derecho internacional (1999) 801; Rome (2000): Koinodikion (2002) 503; Rev crit dr int priv 89 (2000) 929; Revista española de derecho internacional (2000) 659; Lund (2001): IPRax (2002) 62; Koinodikion (2002) 503; Rev crit dr int priv 90 (2001) 774; Revista española de derecho internacional (2001) 729; Riv Dir Intern Priv & Pros 38 (2002) 578; Paris (2002): Koinodikion (2002) 503; Revista española de derecho internacional (2002) 1066; Riv Dir Intern Priv & Pros 39 (2003) 345; Vienna (2003): Revista española de derecho internacional (2003) 1119; Riv Dir Intern Priv & Pros 40 (2004) 836; Tenerife (2004): IPRax (2005) 62; Revista española de derecho internacional (2004) I 1064; Riv Dir Intern Priv & Pros 41 (2005) 555; Chania v Crete (2005): IPRax (2006) 200; Coimbra (2006): IPRax (2007) 67; Revista española de derecho internacional (2006) 1116; Riv Dir Intern Priv & Pros 43 (2007) 885; Hamburg (2007): IPRax (2008) 72; Revista española de derecho internacional (2007) II 869; Riv Dir Intern Priv & Pros 44 (2008) 344; Bergen (2008): IPRax (2009) 285; Riv Dir Intern Priv & Pros (2009) 286; Padova (2009): Riv Dir Intern Priv & Pros (2010) 343.

Retrieved from Groupe Européen de Droit International Privé – Max-EuP 2012 on 02 October 2022.

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