EU Harmonization of Jurisdiction Laws
Why Did the EU Harmonize the Law of Jurisdiction?
Recitals 3 and 4 of the Regulation clarify the EU’s intent. The EU aims to maintain and develop an area of freedom, security, and justice. This is achieved by facilitating access to justice, particularly through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. For the gradual establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters with cross-border implications, especially when necessary for the proper functioning of the internal market. Thus, a key goal is promoting the internal market.
Certain differences between national rules governing jurisdiction and recognition of judgments hampered the operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters ensure rapid and simple recognition and enforcement of judgments given in a Member State. Divergence between states often created a barrier. To establish recognition and enforcement, Member States were sometimes reluctant to enforce and recognize judgments when they believed the original judge lacked jurisdiction. Therefore, Member States aimed to create a set of rules for judges to follow, ensuring they knew when to enforce judgments and that the original judge had jurisdiction.
Article 220 of the Rome Treaty should also be mentioned. It states that Member States should engage in negotiations to ensure the benefit to their nationals of simplification of the formalities governing jurisdiction and execution of judicial decisions and arbitral awards.
“Neutrality” and the Political Nature of EU Private International Law
Savigny argued that public international law was politically related, while private international law was neutral.
Initially, the European methodology in this field focused on identifying locations with a close connection to a legal relationship and then applying the law of that location. This approach was neutral because it prioritized territorial connections, not the question of which law would ultimately be applicable. This approach is not concerned with the content of the applicable law, but rather with identifying connections based on abstract legal relationships and territorially defined locations.
An example of a “political” rule of EU private international law is Article 6 of the Rome II Regulation, which deals with competition law. Another, more obvious example is Article 7 of the Rome II Regulation, concerning environmental damages. Article 9, regarding overriding mandatory provisions, particularly in cases like Unamar, also exemplifies how traditional methodology is sometimes set aside for policy-oriented reasons.