Competing Norms and European Private International Law - Sequel to 'Promoting Human Rights within the Union: The Role of European Private International Law'

Abstract

This contribution is a sequel to article Promoting Human Rights within Union: Role of European International Law, which was submitted as first Private International Law (PIL) contribution to Refgov-project. Like first contribution this second contribution also discusses importance of discipline of PIL if ambition is to find ways of promoting human rights within Union, especially by exchanging This second contribution goes further in theoretical analysis, of course taking into account recent developments. It focuses on finding either regulatory or liberalising role of PIL rules if one has to do with competing norms. The central question here is whether there is a need for a central European regulator in regulation of PIL issues: to what extent does central European regulation of PIL issues creates either opportunities or risks, in sense that States will be tempted to learn form each other either in a positive, or in a negative way? Should regulation of PIL issues at European level be welcomed, if one wants to avoid of unregulated and if one wants to increase level of human rights protection within Union? In an attempt to answer this question, article analyzes - seen from this perspective - manner in which European authorities intervened in PIL so far, and discusses current developments and possible future actions. The analysis of European interference in PIL in article includes both promulgation of pure PIL-rules at European level, as European regulation of PIL-issues which occasionally occur in regulating other areas of as control of national PIL-legislation by European Court of Justice. To that end, author examines a number of case studies, in which either Europe regulated PIL issues, or settlement of PIL issues were left to Member States: international labour including international Posting of workers; international tort with particular emphasis on international environmental pollution and international defamation; international family including international family law in interaction with other branches of law; international company law; international contract with particular attention to consumer contracts and project to create a European Civil Code. The conclusion is that European interference in PIL shows a double face. The potential for European regulation of PIL issues in terms of promoting human rights and stimulating Member States to implement the best law, is high and attractive. But at same time, it is important to be warned against creating dynamics of race to bottom and reduction of level of protection of weaker parties, precisely as a result of European interference in PIL issues. Consciousness of these opportunities and risks is necessary if one is discussing ways of avoiding unregulated competition and ways of encouraging exchange of best practices.