The (Boundaries of) the Instrumentalisation of Private International Law by the European Institutions

Abstract

Where European institutions (the European legislator or the Court of Justice) get involved in PIL, PIL might (also) be assessed in the light of European objectives. Is PIL, thus, evolving into a policy instrument? Two case-studies could be analysed from this perspective: international labour law (with focus on intra-community cross-border situations) and corporate social responsibility (with focus on environmental pollution outside Europe). What interests can or may PIL serve in these areas at the end of the day, and what should be the limits?

Short presentation: Under the influence of the German PIL scholar Von Savigny, continental European PIL has of old been set up as a neutral and apolitical reference system: the classical PIL paradigm implies that, independent of any legal political consideration or policy objective, the law applied to an international legal relationship is the law most closely connected to that legal relationship.

Modern trends have by now also entered continental European PIL, trends such as honouring the principle of party autonomy, the favour principle, the protection principle, trends to take into account rules of semi-public law – whereby one sometimes speaks of manifestations of “governmental interest analysis.” Where these trends have gained acceptance, PIL has in various ways rid itself of the dogma of neutrality, albeit mostly still in a rather modest manner.

But moreover: fairly recently the sensational development of the Europeanisation of PIL has taken place. In this process of Europeanisation, PIL rules are increasingly being formed at European level instead of traditionally at national level. Where European institutions get involved in PIL, PIL might (also) be assessed in the light of European objectives such as promoting the European freedom of the free movement of persons, non-discrimination of EU citizens, European citizenship etc. After all, the promulgation as such of PIL regulations seems to be (also) inspired by the purpose of stimulating European freedoms, in the first instance by increasing predictability and foreseeability by harmonizing the PIL rules; moreover, specific rules of those regulations appear to have been explicitly promulgated with a view to specific policy objectives – for instance Article 7 Rome II Regulation whose theme is the fight against international environmental pollution. Moreover, both the interpretation of the rules of those regulations by the Court of Justice and the testing of the conformity of national PIL rules with European law take place (also) with a view to the promotion of European objectives, whereby the European fundamental freedoms play an important role. In this process of Europeanisation, PIL is thus made instrumental to “European” objectives, by which the character of “neutrality” of PIL seems to get lost in a rather radical way.

In these dynamics, the question raises if a “regulating” role can be assigned to PIL. But which governance role is then in store for European PIL, both in a European context and in a general context of globalisation?

De facto, it is already so that the manner in which PIL is regulated – and the level at which this happens – has in any case effect on, for instance, the possibilities for victims of environmental pollution (pollution which has occurred both inside and outside Europe) for having recourse against European multinationals.

Questions arise as regards future developments of PIL.

In the current situation, PIL is in an interplay of forces. Occasionally, “old” and “new” PIL incentives match each other well but, at other times, they are in conflict. Sometimes European fundamental freedoms themselves also seem to exercise an internally contradictory effect of PIL rules – see the problems of international posting and the pressure in that respect from the freedom of movement of services and the freedom of movement of persons.

What position should PIL assume towards the forces that are currently at play and towards the attempts to instrumentalise PIL in one way or another? To what extent is it desirable, legitimate and feasible to make PIL subservient to all kinds of policy motives which play a role at national and/or at supranational level? To what extent is PIL suitable for instrumental use c.q. must the foundations of PIL in this respect be guarded against impairment?

Two case-studies could be studied from this perspective: PIL-aspects of social corporate responsibility (with a focus on international environment pollution which has occurred outside Europe) and PIL-aspects of labour law (with a focus on posting workers from Eastern to Western European Member States).

To what extent does PIL adopt a “neutral” position in these areas; to what extent can or should European PIL adopt a “neutral” position in these areas?

Suppose the dogma of “neutral PIL” is abandoned, which precise objectives might or could then be at importance in the instrumentalisation of PIL – what interests can or may PIL serve at the end of the day? – and how should its relative weight be estimated? And how precisely can PIL facilitate or complicate the achievement of these objectives?

Is there also, ultimately, an objective of “social justice” to be taken into account: has PIL, ultimately, an instrumental role to play in guaranteeing c.q. achieving “social justice”?