The Interaction between Rome I and Mandatory EU Private Rules - EPIL and EPL: Communicating Vessels?

Abstract

This paper deals with the complex interaction between Rome I and (substantive) mandatory European Union rules in the field of private law. The question is whether European Private International Law, in particular Rome I, and European Private Law, more specific European Contract Law, are communicating vessels or a source of potential clashes.The topic is discussed at the macro-level, as the scope of this paper does not extend to unravelling the exact relationship of Rome I and every individual provision of the existing Directives. Three types of potential collisions are discussed as well as the general mechanisms in Rome I and the Directives to deal with these. The paper analyses the relationship between article 3, 6 and 9 of Rome I and mandatory substantive EU law as well as the consequences of the Ingmar ruling by the ECJ. It is submitted that there is no justification for giving general priority to all (mandatory) EU contract rules over the equally important EU choice of law rules, and thereby rendering the exception the rule. It is important that the further development of European contract law takes into account the private international law side of the coin. For private international law lawyers, it is important to realise that European private international law nowadays functions within the broader framework of the development of a single area of justice and the proper functioning of the internal market.