Public or private law

Moreover, if we try to make a distinction between the branches of law we are going to deal with, it is difficult to classify EU law according to the classic distinction of public and private law because EU legislation covers a wide range of policies. In addition, if we look at international law, we may highlight that, on the one hand, public international law governs the relations between the subjects of international law, that is to say, mainly the States and more recently international organisations.⁴⁶ The international society is heterogenous since it compises many different countries. It is decentralised because international law is marked by the principle of sovereignty of the independent States, and because there is not a superior authority to impose a common policy on them (Roche 2010:3).

On the other hand, private international law typically governs the relations between individuals that comprise a foreign element, for example, marriage between people of different nationalities or the relation between the perpetrator and victim of an accident caused by an individual in a different country. In these cases the question is to determine which court and which national law is applicable in an international legal relation (Terré 2012:86). Should the court apply its own law or foreign law? If foreign law is to be applied, which of the legal systems involved is to take precedence?

The legal provisions determining the national legal system to be applied are therefore commonly called conflict rules, hence the frequent name for this matter: Conflict of Laws.⁴⁷ Conflict rules do not deal with the substance of a dispute but merely with the procedural question of which national legal system is to be applied to the substance. The word

45 Case 6/64 Flaminio Costa v ENEL, EU:C:1964:66.

46 Roche adds that ‘Même si les individus ont fait une apparition dans la société internationale, ils ne restent des simples acteurs, et ne sont toujours pas de véritables sujets de droit’ (2010:3).

47 Some authors also refer to the ‘choice of law’. See for instance Kadner Graziano (2005).

25

‘international’ in ‘private international law’ may be somewhat misleading, as it does not refer to the nature of the sources of law, but rather to the character of the legal relationship (Bogdan 2012:3).

1.3.3. Extension of harmonisation from public to private law in the EU In the EU context, it cannot be denied that there is a constant relationship between individuals from different Member States. In that sense, private law in Europe has undergone rapid transformation during the last two decades. Originally, it was a branch of law that was scarcely affected by EU legislation, but with the pass of time, it has become the object of different harmonisation measures. When the European Economic Community (EEC) was founded in 1957, the Treaty of Rome focused on the creation of a common market based on the freedom of movement of goods, persons, services and capitals, and the rules intended to achieve this result were almost exclusively rules of administrative and other public law, such as rules regarding customs duties, qualitative and quantitative import restrictions, residence and labour permits, prohibition of anti-competitive behaviour, etc. (Bogdan 2012:6).

However, there is no doubt that differences in the field of private law may constitute obstacles hindering the creation of a truly common market. The EU has therefore attempted, with some success, to harmonise substantive rules of the Member States regarding some limited questions of private law, such as rules concerning certain aspects of consumer contracts and companies.

In addition, as Ajani and Rossi remark, EU action has extended from sporadic sectors to wider areas, such as, for instance, e-commerce and financial services, characterised by the joint presence of rules for undertakings and for legal relations with consumers. Sector regulation methods have also changed over time, from minimum harmonisation to intensive harmonisation, where there is limited room for legislative freedom for the States (Ajani &

Rossi 2006:87).

The consequence of this harmonisation is that the scope of a concept may vary depending on whether the instrument applies to the internal market or to aspects of private law. For example, the concept of ‘services’ in Article 5(1) of the Brussels I Regulation⁴⁸ and Article

48 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

26 4(I)(b) of the Rome I Regulation⁴⁹ is a much narrower concept than ‘services’ in Article 56 TFEU⁵⁰ (Bogdan, 2012:16).

In Falco case the Court interpreted ‘services’ narrowly.⁵¹ The case revolved around the interpretation of Article 5(I) of the Brussels I Regulation (Article 7 of the recast Regulation (EU) No 1215/2012⁵²). According to this article on special jurisdiction, a person domiciled in a Member State may be sued in another Member State (emphasis added):

(1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:

— in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,

— in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;

The main jurisdictional principle in Articles 2 and 3 of the Regulation, protecting the defendant by forcing the plaintiff to sue in the defendant’s forum domicilii, is subject to some important exceptions, like the one provided in Article 7. The latter does not deprive the plaintiff of his right to sue in the Member State of the defendant’s domicile, but give him rather an additional, alternative choice (Bogdan 2012:43). The special jurisdictional rules, being derogations from the main rule, are supposed to be interpreted with restraint (Bogdan

49 Article 4 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations:

1. To the extent that the law applicable to the contract has not been chosen in accordance with Article 3 and without prejudice to Articles 5 to 8, the law governing the contract shall be determined as follows:

(a) a contract for the sale of goods shall be governed by the law of the country where the seller has his habitual residence;

(b) a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence;

50 Article 56 TFUE:

Within the framework of the provisions set out below, restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.

51 Case C-533/07 Falco Privatstiftung and Thomas Rabitsch v Gisela Weller-Lindhorst, EU:C:2009:257: ‘The second indent of Article 5(1)(b) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and enforcement of judgments in civil and commercial matters, is to be interpreted to the effect that a contract under which the owner of an intellectual property right grants its contractual partner the right to use that right in return for remuneration is not a contract for the provision of services within the meaning of that provision.’

52 Article 81 of Brussels I bis: ‘It shall apply from 10 January 2015, with the exception of Articles 75 and 76, which shall apply from 10 January 2014.’

27 2012:44).

This overall picture allows us to illustrate two aspects: i) that EU law is in constant interplay with international law and national laws from the Member States and ii) that there has been an extension of the EU competences, touching new areas of private law.

For this study no division between public and private law is made since the focus is on divergences between different language versions, for which the distinction between public and private is law is less pertinent. Nevertheless, this shows that context plays a fundamental role when interpreting concepts. The example of how to interpret ‘services’ highlights the fact that a concept may be interpreted narrowly or broadly depending on the context in which it is used (see section 3.4.4.).

1.4. Competences

In order to understand the competences of the EU, it is worth making a brief overview of the institutional structure of the Union.