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I. The Evolution of European Private International Law

Published online by Cambridge University Press:  18 November 2008

Aude Fiorini
Aude Fiorini
Affiliation:
University of Dundee..
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Abstract

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Type
Current Developments: Private International Law
Information
International & Comparative Law Quarterly , Volume 57 , Issue 4 , October 2008 , pp. 969 - 984
Copyright
Copyright © 2008 British Institute of International and Comparative Law

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References

1 The ratification of the Lisbon Treaty has been rejected by referendum in Ireland in June 2008 and is raising difficulties in three more Member States, see PM Kaczyński, S Kurpas & P Ó Broin, ‘Ratification of the Lisbon Treaty—Ireland is not the only problem’, (2008) European Policy Institute Network Working Paper No 18/2008 <http://shop.ceps.eu/BookDetail.php?item_id=1716>

2 [2007] OJ C 306, 17 December 2007. Under the Reform Treaty, the EU remains essentially founded on the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), the latter being renamed ‘Treaty on the Functioning of the European Union’ (TFEU). All references to the ‘(European) Community’ are replaced with references to the Union: Art 1 (3) of the TEU as amended by the Lisbon Treaty. For a general overview of the changes introduced by the Reform Treaty, see P Craig, ‘The Treaty of Lisbon, architecture and substance’, European Law Review 2008, 137–166.

3 See in particular K Kreuzer, ‘Zu Stand und Perspektiven des Europäischen Internationalen Privatrechts—Wie europäisch soll das Europäische Internationale Privatrecht sein?’, Rabels Zeitschrift 2006 (70) 1–88. H Gaudemet-Tallon, ‘Quel droit international privé pour l'Union européenne?’ in P Borchers & J Zekoll (eds), International Conflict of Laws for the Third Millennium: Essays in Honor of Friedrich K. Juenger (Transnational Publishers, Ardley, 2001) 317–338.

4 These issues did not receive much doctrinal attention. See, however, R Savatier, ‘Le marché commun au regard du DIP’, Revue critique de droit international privé 1959, 237–258; U Drobnig; ‘Conflict of Laws and the European Economic Community’ 15 American Journal of Comparative Law [1966–67] 204–229.

5 Art 220 (renumbered Art 293 by the Treaty of Amsterdam and repealed by the Treaty of Lisbon) provided: ‘Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals: … —the mutual recognition of companies or firms within the meaning of the second paragraph of Article 48, the retention of legal personality in the event of transfer of their seat from one country to another, and the possibility of mergers between companies or firms governed by the laws of different countries,—the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards.’

6 Convention on the Mutual Recognition of Companies and Bodies Corporate of 29 February 1968, Bulletin of the European Communities, Supplement 2/69, 7–18.

7 Convention on Insolvency Proceedings of 23 November 1995, 35 ILM 1996, 1223.

8 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters (consolidated version), [1998] OJ C 27, 26.1.1998, 1–24.

9 The 1987 Brussels Convention Abolishing the Legalisation of Documents in the Member States of the European Community, Dalloz 1992 L 278, has only entered into force between a few Member States.

10 The 1990 Convention on the simplification of procedures for the recovery of maintenance claims never came into force. On this, see B Brückner, Unterhaltsregreß im internationalen Privat- und Verfahrensrecht (J C B Mohr (Paul Siebeck) Tübingen, 1994) 154 & 180 et seq.

11 Convention on the law applicable to contractual obligations (consolidated version), OJ C 027, 26/01/1998, 34–46.

The Rome Convention was adopted as a classic convention but is a closed instrument to which only Member States may accede. No other such European ‘free’ convention entered into force. In particular the Luxembourg Agreement relating to Community patents of 15 December 1989 OJ L 401, 30.12.1989, 1–27 was never ratified by the required number of Member States.

12 The EU Treaty has been compared to a Greek temple built on three pillars—the first one being the EC Treaty (where Community institutions are empowered to exercise legislative, executive and judicial powers as conferred to them), is complemented by the second and third one (where governance remains inter-governmental).

13 Article K.1: ‘For the purposes of achieving the objectives of the Union, in particular the free movement of persons, and without prejudice to the powers of the European Community, Member States shall regard the following areas as matters of common interest: … 6. judicial cooperation in civil matters; … ’.

14 Article K.3: ‘ … 2. The Council may:—on the initiative of any Member State or of the Commission, in the areas referred to in Article K.1(1) to (6); … (c) without prejudice to Article 220 of the Treaty establishing the European Community, draw up conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements. Unless otherwise provided by such conventions, measures implementing them shall be adopted within the Council by a majority of two-thirds of the High Contracting Parties. Such conventions may stipulate that the Court of Justice shall have jurisdiction to interpret their provisions and to rule on any disputes regarding their application, in accordance with such arrangements as they may lay down.’

15 Art K4.

16 Arts K3 & K6.

17 This wording was variously interpreted. See U Drobnig, ‘European Private International Law after the Treaty of Amsterdam—Perspectives for the next Decade’, 11 The King's College Law Journal 2000, 191–192.

18 HE Hartnell, ‘EUstitia: Institutionalizing Justice in the European Union’, Northwestern Journal of International Law and Business 2002–2003, 74–75.

19 U Drobnig (n 17) 192; J Basedow, ‘The Communitarisation of the Conflict of Laws under the Treaty of Amsterdam’, Common Market Law Review 2000 at 691; N Walker, ‘Current developments: EC Law—Justice and Home Affairs’ [1998] 47 ICLQ 231, 235.

20 Measures had to be adopted unanimously at five, and later, after the abolition of steering groups, four different levels: the working groups, the K4 Committee, the Coreper and the JHA Council. The involvement of the Commission, Parliament and ECJ was deemed in general too modest: the Commission enjoyed only shared initiative; the Parliament, which in practice was generally informed ex post facto, had only a marginal role in the law-making process and the ECJ did not have inherent jurisdiction.

21 In addition to common positions and joint actions seldom used in the field of civil judicial cooperation (as not suited to an area which inherently requires legislative action), two kinds of instruments were available: resolutions (which are non binding) and conventions (which remained in the hands of States both through the Council and at the ratification stage).

22 Convention drawn up on the basis of Article K.3 of the Treaty on European Union on the service in the Member States of the European Union of judicial and extrajudicial documents in civil or commercial matters [1997] OJ C 261, 27.8.1997, 2–16 & Convention drawn up on the basis of Article K.3 of the Treaty on European Union, on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters [1998] OJ C 221, 16.7.1998, 2–18. Both instruments were communitarised after the entry into force of the Treaty of Amsterdam.

23 See K Kreuzer (n 3) 13–16.

24 Amsterdam version.

25 eg Second Council Directive 88/357/EEC of 22 June 1988 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and laying down provisions to facilitate the effective exercise of freedom to provide services and amending Directive 73/239/EEC, [1998] OJ L 172, 1–14.

26 eg European Parliament and Council Directive 95/46/EC of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data [1995] OJ L 281, 31–50.

27 eg Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts [1993] OJ L 95, 29–34.

28 J Basedow, ‘Spécificité et coordination du droit international privé communautaire’, Travaux du Comité français de Droit International Privé 2002–2004 (Pedone, Paris 2005) 275 et seq.

29 For a general overview, see Ph Manin, ‘The Treaty of Amsterdam’, 4 Columbia Journal of European Law 1998, 1–26; M Petite, ‘European Integration and the Amsterdam Treaty’, 87 Saint Louis-Warsaw Transatlantic Law Journal 1999, 87–122; J Monar, ‘Justice and home affairs in the Treaty of Amsterdam: reform at the price of fragmentation’, European Law Review 1998, 320–335.

30 Art B EU Treaty (Maastricht version).

31 Art 2 EU Treaty (Amsterdam version).

32 Article 65 EC Treaty provides: ‘Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and in so far as necessary for the proper functioning of the internal market, shall include:

  1. (a)

    (a) improving and simplifying:

    • — the system for cross-border service of judicial and extrajudicial documents,

    • — cooperation in the taking of evidence,

    • — the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases;

  2. (b)

    (b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction;

  3. (c)

    (c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States’.

33 See most strikingly V Heuzé et al, ‘L'Union européenne, la démocratie et l'Etat de droit: lettre ouverte au Président de la République’, JCP G 2006 Act. 586; P Lagarde et al, ‘Observations sur la lettre ouverte au président de la République intitulée «L'Union européenne, la démocratie et l'État de droit»’ JCP G 2007 Act 18.

34 On the relationship of Art 65 with Arts 95 and 293, see O Remien, ‘European Private International Law, the European Community and its emerging Area of Freedom, Security and Justice’, 38 Common Market Law Review 2001, 72 et seq; J Basedow, ‘The Communitarisation of the Conflict of Laws under the Treaty of Amsterdam’, 37 Common Market Law Review 2000, 697 et seq; A Dickinson, ‘European Private International Law: Embracing New Horizons or Mourning the Past?’, 1 Journal of Private International Law 2005, 197 et seq.

35 See HE Hartnell, ‘EUstitia: Institutionalizing Justice in the European Union’, Northwestern Journal of International Law and Business 2002–2003, 83–84.

36 Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings [2000] OJ L 160, 1–18; Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338, 1–29; Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters [2000] OJ L 160, 37–52 (now repealed and replaced by Regulation (EC) No 1393/2007).

37 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L 12, 1–23; Regulation of the European Parliament and of the Council on the law applicable to contractual obligations.

38 For an overview of the measures adopted or currently considered in the field of judicial cooperation in civil matters, see http://europa.eu/scadplus/leg/en/s22003.htm.

39 See however the Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters [2008] OJ L 136, 3.

40 See for example Art 32 of the Directive 2002/83/EC of the European Parliament and of the Council of 5 November 2002 concerning life assurance [2002] OJ L 345, 1–51. This directive is based on Arts 47 & 55.

41 According to Art 67(4), the Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. The principle of mutual recognition, cornerstone of judicial cooperation in civil matters since the Tampere conclusions, thus acquires a Treaty basis.

42 Art 81: 1. ‘The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States. 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: (a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; (b) the cross-border service of judicial and extrajudicial documents; (c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; (d) cooperation in the taking of evidence; (e) effective access to justice; (f) the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States; (g) the development of alternative methods of dispute settlement; (h) support for the training of the judiciary and judicial staff. 3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament. The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament. The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision’.

43 Art 4(1) & Art 5(1) TEU. For the first time the Treaty confirms that competence not conferred upon the Union remain with the Member States.

44 Declaration (No 24) underlines that the fact that the EU has a legal personality ‘will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States of the Treaties’.

45 Art 4 TFEU.

46 This situation arises when EU institutions decide to repeal a legislative act, see Declaration 18 in relation to the delimitation of competences. The Council may request the Commission to submit proposals to this end. In addition the Declaration stresses that the Member States (meeting in an IGC) could decide to modify the competences conferred on the Union.

47 Art 81 in conjunction with Art 2 TFEU.

48 Sole Article, Protocol 25 on the exercise of shared competence.

49 Art 5 (2)–(4) TEU; See also the largely redrafted Protocol 2 on the application of the principles of proportionality and subsidiarity. It is to be noted in this context that one of the changes introduced by the Treaty of Lisbon is the role to be played by national Parliaments in the monitoring of compliance with the subsidarity principle.

50 In a Communication of 15 December 2005 (COM(2005)648), the Commission attempted to resort to the passerelle in the context of the maintenance proposal, but this initiative was met with the opposition from a majority of Member States.

51 See also Protocol No 1 on the role of national Parliaments in the European Union.

52 Art 81(3): if a national Parliament, duly notified, opposes the use of the passerelle within 6 months of the date of the notification, the passerelle shall not be used.

53 See M Fallon, ‘Constraints of Internal Market Law on Family Law’ in J Meeusen, M Petergás, G Straetmans, F Swennen (eds), International Family Law for the European Union (Intersentia, Antwerp/Oxford, 2007) 149–181.

54 See for example: Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes [2003] OJ L 26, 41–47. Directive 2008/52/EC of the European Parliament and of the Council of May 21st 2008 on certain aspects of mediation in civil and commercial matters [2008] OJ L 136, 3.

55 This is particularly the case in view of the added powers of national Parliaments in the monitoring of the subsidiary character of Union action.

56 See A Fiorini, ‘Facilitating Cross-Border Debt Recovery—The European Payment Order and Small Claims Regulations’ [2008] 57 ICLQ 2008 449, 460 et seq.

57 See B Nascimbene, ‘Community courts in the area of judicial cooperation’ [2005] 54 ICLQ 489.

58 Protocol on the interpretation of the 1968 Convention by the Court of Justice (consolidated version) [1998] OJ C 27, 24–30.

59 Art 68.

60 See for example (early cases): Case 21/76 Bier v Mines de Potasse d' Alsace [1976] ECR 1735, Case 12/76 Tessili v Dunlop [1976] ECR 1473, or (more recently): Case C-412/98 UGIC v Group Josi [2000] ECR I 5925 and Case C-281/02 Andrew Owusu v Nugent B. Jackson, [2005] ECR I 1383.

61 As a result the Commission enacted a Communication on Adaptation of the provisions of Title IV of the Treaty establishing the EC relating to the jurisdiction of the ECJ with a view to ensuring more effective judicial protection, COM (2006) 346 final. It is to be noted however that, on this issue, the Treaty of Lisbon actually borrows its provisions from the project of Constitution.

62 Art 267 TFEU: ‘The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: … (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. … ’

63 In C-166/73, Rheinmühlen-Düsseldorf v Einfuhr- und Vorratstelle [1974] ECR 33 the ECJ recognised that a lower court may make a reference under Art 234 even if domestic rules bind it on points of law by rulings of a superior court.

64 As pointed out by the House of Lords, the expansion of the ECJ's jurisdiction will lead to an expansion of the range of legal issues coming before it, which obviously raises the issue of expertise of ECJ judges, which in turns should notably lead to a reappraisal of the conditions of their appointment: HL Paper 62 I, The Treaty of Lisbon: an impact assessment, Vol I, 129–130, para 6.96 et seq.

65 This is particularly so given that the Treaty of Lisbon extends EU competence to all JHA matters, thereby greatly increasing the scope of inherent jurisdiction of the ECJ.

66 Art 23a has not been inserted in the protocol on the ECJ Statute by the Lisbon Treaty but results from Decision 2008/79/EC ([2008] OJ L 24, 42).

67 Amendments to the Rules of procedure of the Court of Justice [2008] OJ L 24, 39. On this new procedure, see T Millett, ‘A Marked improvement’, 158 New Law Journal 2008, 694s.

68 M Hedemann-Robinson, ‘The Area of Freedom, Security and Justice with Regard to the UK, Ireland and Denmark: The ‘Opt-In Opt-Outs’ under the Treaty of Amsterdam', in Legal Issues of the Amsterdam Treaty (D O'Keefe & PM Twoney eds) (Hart, Oxford, 1999) 289 et seq. Both protocols have the same status as any treaty provision. They are complemented by Declaration 26 (on non-participation by a Member State in a FJS measure) which is merely interpretative.

69 According to the terms of Art 3(1)(1), the UK or Ireland are ‘entitled’ to do so. In other words, other Member States cannot oppose their participation.

70 In Declaration 56, annexed to the Treaty of Lisbon, Ireland manifested its firm intention to exercise its rights under Art 3 to take part in the adoption of measures pursuant to Title V of Part Three of the TFEU ‘to the maximum extent it deems possible’. It is to be recalled that a similar declaration made in the aftermath of the Treaty of Amsterdam did not prevent Ireland to decide not to opt-in to the negotiation of the Rome III proposal. However, in Declaration 56 Ireland further announced its intention ‘to review the operation of these arrangements within three years of the entry into force of the Treaty of Lisbon’ [2008] OJ C 115, 356–357.

71 In the Rome I dossier, the participation of the UK was a key factor in the elaboration of a measure which could in fine be accepted by the UK. However, Member States had a particular interest in trying to secure a UK involvement and in that particular area, the UK's position was particularly strong (not least because of the weight of its financial markets). See HL Paper 62 II, The Treaty of Lisbon: an impact assessment, Vol II Evidence, Q 519, E118 (J Straw).

72 See A Fiorini, ‘Rome III—A Step Too Far in the Europeanisation of Private International Law?’, International Journal of Law, Policy and the Family 2008.

73 Acting on a proposal from the Commission.

74 The non-participation of the UK to Rome III does not seem to lead to the inoperability of the Brussels IIa Regulation (see the discussion of the consequences of the non-participation in Fiorini (n 62). However see the example of Baroness Ludford in relation to more technical areas, such as the Schengen information system: HL Paper 62 II, The Treaty of Lisbon: an impact assessment, Vol II Evidence, Q 390, E89.

75 Art 263 TFEU (formerly Art 230 EC Treaty).

76 Arts 1 & 2 Protocol No 5. Some exceptions are found in further provisions of the Protocol, although these do not apply to judicial cooperation in civil matters.

77 Council Decision of 27 April 2006 concerning the conclusion of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2006] OJ L120, 22, and Council Decision of 27 April 2006 concerning the conclusion of the Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters [2006] OJ L120, 23.

78 The annex also contains further provisions, but these do not affect judicial cooperation in civil matters.

79 See the Recital of Protocol No 22.

80 According to the Danish Ministry of Foreign Affairs, a referendum on whether to keep the opt-outs should be organized within three years: http://www.denmark.dk/en/servicemenu/News/DomesticPoliticalNews/Archives+2007/PMPromisesEUOptoutVote.htm (last visited 6 June 2008). It is to be noted in this context that this could lead not only to the substitution of the annex to Part I of the protocol but also to full participation in freedom, security and justice matters, as Art 7 provides.

81 The question of external competence of the Union itself raises ‘external external’ questions: one problem is that of the acceptance by third States of the transfer of external competence from the States to the Union (which has had historical precedents, See P Manin, L'Union européenne (Pedone, Paris, 2005) 149–150). It also raises particular issues when the international agreement in question is not open to non-State entities (to avoid this problem, Art 29 of the 2005 Hague Choice of Court Convention specifically provides that Regional Economic Integration Organizations (REIOs) may sign it), or where full participation in international negotiations is only open to Members of a particular organisation, with membership being solely open to States (for an overview of how this issue led to a modification of the Statute of the Hague Conference on Private international law, see A Schulz, ‘The accession of the European Community to the Hague Conference on Private International Law’ [2007] 56 ICLQ 939–949).

82 In the ERTA case 22/70, [1971] ECR, 263, the ECJ considered that an external competence of the EC could arise implicitly where the EC had adopted internal Community legislation in a policy area. In Opinion 1/76, [1977] ECR, 741, the Court importantly indicated that whenever Community law has created for the institutions of the Community powers within its internal system for the purpose of attaining a specific objective, the Community had authority to enter into the international commitments necessary for the attainment of that objective even in the absence of an express provision in that connexion.

83 See A Borrás; ‘Le droit international privé communautaire: réalités, problèmes et perspectives d'avenir’, Hague Academy Collected Courses 2006; Vol 317, 313, 467 et seq.

84 Opinion 1/03, [2006] ECR I 1145.

85 para 114.

86 para 115.

87 para 117.

88 It is ‘not necessary for the areas covered by the international agreement and the Community legislation to coincide fully’. Furthermore, it is necessary to take into account ‘not only the current state of Community law in the area in question but also its future development, insofar as that is foreseeable at the time of that analysis’, ibid para 126.

89 In this the inclusion of disconnection clauses does not remove the possibility that the instrument affect Community rules, ibid para 129–130.

90 para 133.

91 Which is identical to Art III-323 of the defunct Constitution.

92 Compare the terms used by the ECJ according to which Union competence is exclusive where ‘the conclusion of the international agreement is necessary in order to attain objectives of the Treaty that cannot be attained by establishing autonomous rules’ (n 85).

93 See above Section D. Neither Protocol deals expressly with the implication on the Union's external competence of the provisions they entail.

94 Rome III could soon be the first measure of judicial cooperation in civil matters to be adopted under the enhanced cooperation provisions (cf http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/jha/101000.pdf).

95 In consequence of Article 1 and subject to Articles 3, 4 and 6, none of the provisions of Title V of Part Three of the Treaty on the Functioning of the European Union, no measure adopted pursuant to that Title, no provision of any international agreement concluded by the Union pursuant to that Title, and no decision of the Court of Justice interpreting any such provision or measure shall be binding upon or applicable in the United Kingdom or Ireland; and no such provision, measure or decision shall in any way affect the competences, rights and obligations of those States; and no such provision, measure or decision shall in any way affect the Community or Union acquis nor form part of Union law as they apply to the United Kingdom or Ireland (emphasis of the author).

96 This conclusion appears to correspond to the Commission's current view: See the evidence given by Mrs Durand, HL Paper 62 II, The Treaty of Lisbon: an impact assessment, Vol. II Evidence, QQ 348–349, E78.

97 U Drobnig, ‘European Private International Law after the Treaty of Amsterdam—Perspectives for the next Decade’, 11 The King's College Law Journal 2000, 201.

98 Which had largely been left untouched by the Nice Treaty.