The Young and the Restless: CESL and (the rest of) national law Matthias E. Storme Full professor KU Leuven, Instituut commercial and insolvency law Symposium “Hugh Beale and the CESL” Lincoln’s Inn London 23 may 2014
Feb 25, 2016
The Young and the Restless: CESL and (the rest of) national law
Matthias E. StormeFull professor KU Leuven, Instituut commercial and insolvency law
Symposium “Hugh Beale and the CESL”Lincoln’s Inn London 23 may 2014
Some characteristics of CESLUniform law
Opt-in instrument (≠ CISG)
Union law:- automatically part of domestic law
- but also (secundary) Union law (≠CISG) with * priority over national law and ** subject to primary law
some union rules come naked on the scene, others as CESL are already well vested
Some effects of supremacyCESL itself and Union law in general:
- determine the scope of CESL
- determine the formation and validity of the choice /opting-in;
except incapacity under personal law(possible exception: illegality or immorality of the choice
(according to the chosen law) ?)
“Scope” of CESL ratione materiaeCESL(R) excludes the rules of the applicable national law
within its scope (≠ CISG 7(2))
- art. 6 Rome-I-R is set aside by the CESLR itself (as lex posterior and specialis in relation to 27 Rome-I)
- autonomous interpretation, principles of interpretation of EU legislation > underlying principles and objectives
- no lacunae within the scope: either an explicit or implicit rule or party autonomy (subject to GF&FD)
“Scope” of CESL ratione materiaeWhere lies the border between the (scope of) young CESL
and the restless ghosts of national law ?
- additional defects of consent ? No, except conflict of interest (matter of representation > DCFR II-6:109)
- additional rules on unfair terms ? No- unfair trade practices ? Distinguish (S. EP amendment 15)
- additional leniency of national law ? No• délais de grâce
• scheme of arrangement (?)
“Scope” of CESL ratione materiaeillegality or immorality: outside the scope
- i & i under Union law: applies as Union law (eg trade embargo, money laundering, competition law)
- i & i under national law: applies, but CESL determines whether it is a question of i & i – cfr. EP amendment 14.
within the scope of CESL (incl where the reasons for i&i are addressed in CESL), there is no place for:
- (other) national overriding mandatory provisions - national public policy exception
Outside the scope of CESLStill MS duty to give full effect (art. 4(3) TFEU)!
Insofar as the necessary measures are not contained in CESL or other Union law
In general: MS have to provide effective judicial protection and add remedies where necessary to give full effect
Some EU rights arrive naked, CESL rights are already well vested.
Compare other optional instruments (optional cross-border procedures, optional IP’s, optional legal persons)
Principle of effectivenessNational law must give effective and equivalent protection.
Equivalence ? eg national law on assignment
Effectiveness ? Possible examples in matters outside the scope of CESL
- Making the choice for CESL illegal- Language requirements (C-202/11 Las)
- Set-off- Concurrency of actions
- Ex officio application
EU Charter
Art. 51 Charter (and 6 TEU) limits the relevance of the Charter
But in applying the CESL, courts & institutions are bound by the Charter
<Limitations of private autonomy have to be justified:
C-283/11 Sky österreich
Inländerdiskriminierung
MS Option in art. 13 (1) CESLR- To extend CESL to domestic contracts
Could it be unconstitutional not to exercise the option ?Belgian Const.C. 110/2001
NB. Extension of CESL under art. 13 is Union law, extension of CESL outside art. 13 is purely national law (and Rome-I-R
takes over)