Key Concepts in European and Private International Law

European Union Law: Core Principles

The foundation of EU law rests on three essential principles:

1. The EU is a supranational organization.
2. All EU regulations are directly applicable.
3. The European Court of Justice (ECJ) decides which other parts of EU law (e.g., Treaty articles) are directly effective.

Private International Law (PIL)

International Private Law deals with three main issues when litigation occurs between two parties coming from different states:

1. Jurisdiction: Determining which court has jurisdiction (including the possibilities of executing the verdict given by that court in the countries of the litigating parties).
2. Applicable Law: Determining whose law applies (country) in case of international litigation between two private parties.
3. Conflict Resolution: Finding solutions to legal problems arising out of an international legal relationship, often through treaties.

The Three Pillars of PIL Application

1. Which court has jurisdiction?
2. Whose law applies (country)?
3. Is there a treaty that provides a solution to the conflict?

Jurisdiction Example: Brussels I Regulation

Scenario: Determining jurisdiction when parties live in the EU (e.g., a case involving negligent driving).

The Brussels I Regulation (Recast) provides the solution for jurisdiction within the EU.

Application of Brussels I, Article 5 (Torts)

For matters relating to tort, delict, or quasi-delict, the defendant may be sued:

• In the courts for the place where the harmful event occurred or may occur.

Example: If the harmful event occurred in the Netherlands, the Dutch court would likely have jurisdiction.

Key Definitions in EU Law

Supranational Organization

As a result of its unique structure, the EU (formerly EC) becomes a supranational organization, a 'State above the Member States', that is capable of making rules that bind the Member States without their specific and prior consent.

Directly Applicable Law

EU law that is directly applicable means that its provisions take effect in the legal systems of the Member States, without the need for further acts by the governments of these Member States. Direct applicability is therefore a concern of the Member States themselves.

Directly Effective Law

Directly effective EU law means that these provisions give rights or obligations upon which nationals (individuals or companies) can rely directly before a national court.

Determining Applicable Law: The Rome Convention

The issue of which national law applies to a certain situation, particularly concerning contracts, is dealt with by the Convention of Rome (1980), also known as the ECO Treaty (now largely replaced by the Rome I Regulation).

This framework provides answers regarding the applicable national legal system (e.g., 'German law').

Key Articles of the Rome Convention (ECO)

The Convention addresses the following aspects of contractual law:

• Articles 3 and 4: A choice of law made by the contracting parties.
• Article 5: Law applicable to consumer contracts.
• Article 6: Law applicable to individual employment contracts.
• Article 7: Law applicable under certain circumstances (e.g., mandatory rules).
• Article 9: Formal validity of a contract.

Understanding Incoterms (International Commercial Terms)

INCOTERMS (INternational COmmercial TERMS) are standardized trade terms established by the International Chamber of Commerce (ICC) for use in international contracts of sale.

What Incoterms Define

Incoterms clarify crucial aspects of international transactions. They deal with:

• Time and place of delivery.
• The moment when risk passes from the seller to the buyer.
• Payment of transport and freight costs.
• Who is responsible for customs formalities.
• Who deals with shipping documents.

Crucial Point: Selecting the right Incoterm can significantly reduce or remove the seller’s liability regarding the goods during transit.