17 January 2007

Open Letter French Private International Law Scholars on European Intrusion

Coulisses de Bruxelles, Jean Quatremer's weblog for the French journal Libération, has this post on an open letter from French academics to President Jacques Chirac on - what they see as - the illegitimacy of the European Union's activities in the field of private international law. Some 60 leading jurists have signed the letter which closes with the statement that "they will not be able for long to find the strength to dishonour themselves, in their writing as in their teaching, by pretending to treat as law that which evidently is no such thing".

The professors write (my translation):

"In a democracy organised on the basis of the principles of the rule of law, a legal provision is legitimate only if emanating from an institution that has the authority to prescribe it. (…) Nevertheless, and despite ever louder objections from a growing number of leading jurists in Europe, the Community Institutions are relentless in taking liberties with this fundamental precept. Now, with the proposal for a Regulation on the law applicable to contractual obligations (Rome-I), they seem resolved to ignore this notion definitively from now on".

The professors' principal cause for concern seems to be their fear that the new Regulation - in contrast to the existing 1980 Convention - will offer too little scope for the application of protective mandatory rules of the forum (cf. art. 7 of the Convention). This, the professors suggest, is an element of the Commission's grand plan to get rid of the great majority of mandatory rules in contract law generally (for, they argue, if cross-border contracts are so liberated, purely internal contracts cannot stay behind). This aproach "constitutes a grave attack on democracy as it robs national legislatures of all power".

A number of academics, including Paul Lagarde, Hélène Gaudemet-Tallon and Catherine Kessedjian, have written a counter-letter in which they decry "the dramatic, even apocalyptic, and therefore totally disproportionate tone" of the original letter. While emphasizing that the Commission proposal may be criticised on numerous grounds, these academics also take issue with the original writers' main substantive argument. Article 8 of the Proposal, they argue, specifically allows for the application of forum mandatory rules; the 1980 Convention system, therefore, largely stays in place.

What is fascinating to note is that while the original objectors frame their attack in democracy/rule of law/subsidiarity terms, closer reading of their letter makes it very clear that it is not so much EC 'overreaching' (in private international law matters) as such that they condemn, but the specific 'ultra-liberal', 'anti-social' content of the Rome-I proposal. (It is telling that article 65 EC - the basis for EC power in this area - is only referred to at the very end of the letter!). The professors' letter takes us right back to the (specifically French?) preoccupation with 'social dumping' in Europe.

Many thanks to Christophe Hillion for the tip! The Coulisses de Bruxelles blog has great stuff, and I'll definitely add a link in the sidebar.


  1. Jacco,

    Many thanks for this - most interesting.

    Do I have your permission to post your translation on the conflictoflaws.net website (with full links and attribution to you, of course).

    Many thanks,

    Martin George.

  2. Jacco,

    Your blog is very interesting, and timely. What are your thoughts on the scholars' concern for the protection of the law of the forum as the subjacent reason for their opposition to the purported modifications to Rome I? Moreover, do you see the modifications as something inevitable? Your last comment seems to hint this is politics disguised as legal argumentation. If this is the case, this should not be the story's last episode... or is it?

  3. If there still is any interest at this stage, English readers will find below my own translation of the controversial "Open Letter", which I post here with the approval of its author, my former Professor, Mister Vincent Heuzé:

    Open Letter to the President of the Republic

    The European Union, Democracy, and the Constitutional State

    Friday, 26 January 2007

    Originally published on Wednesday, 13 December 2006

    Open Letter to the President of the Republic, from Forty Legal Academics, Concerning the “Regulation on the Law Applicable to Contractual Obligations”.

    Dear Mister President of the Republic:

    In a democracy organized in accordance with the principles of a constitutional state, a rule is legitimate only if made by a properly empowered authority (as first-year law students are taught – when they haven’t already learned this in high-school civic instruction classes). Only then may a rule qualify as a “rule of law”, and thereby deserve obedience. Yet – and despite the rising protests of an ever-growing number of European legal professionals – Community institutions are regularly taking liberties with this postulate. As a matter of fact, they now seem determined to simply do away with it for good, judging by the current draft Regulation on the law applicable to contractual obligations.

    The draft Regulation is the latest and most radical offensive led by the Commission in favour of the “law of the country of origin”. In this respect, however, it goes much farther than the famous “Bolkenstein directive proposal”, which revealed the principle to the general public: indeed, whereas the latter covered services only, the draft Regulation affects all areas of activity.

    The purported justification for the Regulation is the alleged need to “modernize” the Convention of 19 June 1980, which currently governs the subject-matter. But in fact, what we are dealing with is an attempt to totally disrupt the scheme of the Convention.

    True, the 1980 Convention leads to solutions apparently very similar to those contained in the Bolkenstein directive proposal: both provide that a contract shall be governed by the law of the country in which the supplier of goods or services is established, unless the parties have chosen a different law.

    However, under the Convention, the application of the law thusly designated is merely supplementary – because first and foremost, the parties are bound by those mandatory rules whose observance the States deem necessary to guarantee both justice between the contracting parties and the social usefulness of their agreements. Now, although the proposed Regulation formally adopts the same solution, it does so – as the Preamble explicitly specifies – subject to the principle that the application of such mandatory rules “must be applied in a manner compatible with the Treaty” establishing the European Union. And this new requirement is absolutely crucial, as it is the only consequence, and therefore the true purpose, of the transformation of the 1980 Convention into an instrument of Community law.

    Indeed, what this requirement means is that, if the proposal is adopted, any mandatory rule concerning contracts will be amenable to challenge before the Court of Justice of the European Communities. And this requirement not only tends to give said Court (however devoid of any democratic legitimacy) the power to substitute its own opinion to those of national Parliaments as regards the exigencies of either natural justice or the social usefulness of contractual agreements: it systematically calls into question the applicability of mandatory rules in the area of international contracts. Indeed, before the Court of Luxemburg, these rules will be standing in the accused’s box: in accordance with said jurisdiction’s jurisprudence as regards the compatibility of a national law with the EC Treaty, the applicability of the national rule at issue will be conditional upon the demonstration that: (a) the rule pursues a legitimate purpose, and (b) it goes no further than what such purpose requires .

    However, since, under the contemplated circumstances, the national rules at issue will always be more stringent than the chosen law or the law of the country of origin, the national rules will never be able to meet those conditions.

    For example, French law grants subcontractors certain guarantees to obtain payment for the work they carry out. But this is a French invention unknown to other legal systems. And that very fact, in and of itself, proves that the French legal requirement in question is not legitimate, since it is not deemed necessary by other legislators.

    Similarly, French law provides for a ten-year warranty owed by architects and contractors for defects in the buildings they erect, while many other European legal systems provide for a shorter warranty period. Well, if foreign legislators consider it sufficient to impose a shorter warranty period, then the requirement set out in the French Civil Code must be disproportionate in relation to its purpose.

    And this analysis – which the CJEC systematically carries out when reviewing national private law rules while assuming that the applicable law is that of the country of origin – will be applied just as well to the French rules protecting authors in publishing agreements, or lessees in rural or commercial leases, or setting a mandatory maximum for interest rates in money loans, or providing for the obligations incumbent upon insurers vis-à-vis their agents, upon sellers vis-à-vis their representatives and distributors, or upon the later toward their suppliers, etc…

    Thus, those mandatory rules whose application Member States deem necessary to impose will never stand the slightest chance of prevailing over the liberties granted to the parties – or to the stronger party – under the chosen law or the law of the country of origin, inasmuch as such law is that of another Member State.

    However, this annihilation of the current system is not a goal for the Brussels Commission. Rather, it is merely a means at the service of a far more ambitious end (which the Bolkestein directive proposal – to its credit – at least made no attempt to dissimulate): the ultimate objective is the elimination pure and simple of most mandatory rules in the area of contracts – because if international contracts are freed from all constraint, domestic contracts will necessarily have to follow suit.

    Indeed, going back to some of the foregoing examples, it is inconceivable that French architects and contractors should remain held to a ten-year warranty on their work when their foreign competitors are exempted from such obligations for the buildings they erect in France, and therefore do not have to bear the cost of said warranty. Similarly, French architects and contractors should no longer be required to provide security for payment to their French subcontractors if they are under no such obligation towards foreign subcontractors ¬– otherwise, they will start hiring exclusively foreign subcontractors. In other words, the idea is for Community institutions to artificially label differences between national legislations as sources of competition distortion, so as to force States – for the sake of their domestic industries and the related jobs – to systematically amend their rules, in every case, in such a way as to bring them in line with the most liberal legislation in Europe, or even to raise the bid and push back even further the boundaries of deregulation.

    However, for two reasons, the method used is unacceptable.

    First, it constitutes a very serious attack on democracy, since it strips national legislators of all powers. As they are left without any discretion to assess the requirements of justice and social usefulness, and are only authorized to take note of what the least demanding among them requires, national legislators lose their very raison d’être. All the more so since the situation will never arise where, ultimately, the set of rules governing this or that category of contract shall henceforth be, throughout Europe, the one devised, say, by the Irish, the Luxembourger, the Latvian or the Cypriot Parliament; indeed, since the comparisons must be between rules taken individually, the set of rules governing a given category of contract will most often be the product of a combination of elements drawn from the different legal systems under consideration, and thus, it will not even correspond to the most liberal among these systems.

    And this insult to democracy comes along with an equally clear contradiction of the constitutional state. Indeed, Art. 65 of the EC Treaty authorizes the European Union to take measures in the area at issue here (i.e. the conflict of laws) only for the purpose of “promoting the compatibility” of national solutions, and thus refuses to grant the EU the power to standardize national solutions, that is, to “make them identical” (as the preparatory work so clearly and unequivocally confirms). The initiative currently under way therefore constitutes a manifest excess of jurisdiction – which, considering its extent, outdoes in seriousness all of the abuses of power that, alas, have become a habit for Community authorities .

    Wherefore, Mister President of the Republic, the signatories of this letter, all law professors, feel the need to take the liberty to solemnly express to you the hope that you may see fit to remind the institutions of the European Union that the EC Treaty binds France only in such manner as the Constitutional Council has authorized the ratification thereof, and not as the EU institutions wish to construe it.

    For not much longer will the undersigned law professors be able to accept to disgrace themselves, in both their writings and their teachings, by pretending to consider as such what obviously is not law.
    Bertrand ANCEL (Université Paris II Panthéon-Assas) Bernard AUDIT (Université Paris II Panthéon- Assas) Bernard BEIGNER (Université Toulouse I) Alain BERNARD (Université Montesquieu Bordeaux IV) Thierry BONNEAU (Université Paris II Panthéon-Assas) Claude BRENNER (Université Paris II Panthéon-Assas) Rémy CABRILLAC (Université Montpellier I) Loïc CADIET (Université Paris I Panthéon-Sorbonne) Pierre CALLĒ (Université du Mans) Philippe CONTE (Université Montesquieu Bordeaux IV) Patrick COURBE (Université de Rouen) Françoise DEBOISSY (Université Montesquieu Bordeaux IV) Françoise DEKEUWER-DEFOSSEZ (Université Lille II) Philippe DELEBECQUE (Université Paris I Panthéon-Sorbonne) Yvonne FLOUR (Université Paris I Panthéon-Sorbonne) François GAUDU (Université Paris I Panthéon-Sorbonne) Pierre-Yves GAUTIER (Université Paris II Panthéon-Assas) Michel GERMAIN (Université Paris II Panthéon-Assas) Alain GHOZI (Université Paris II Panthéon-Assas) Marie-Angèle HERMITTE (CNRS) Vincent HEUZÉ (Université Paris I Panthéon-Sorbonne) Jérôme HUET (Université Paris II Panthéon-Assas) Jérôme KULLMANN (Université Paris IX Dauphine) Thierry LE BARS (Université de Caen) Sophie LEMAIRE (Université d’Orléans) Anne-Marie LE POURHIET (Université Rennes I) Hervé LÉCUYER (Université Paris II Panthéon-Assas) Yves LEQUETTE (Université Paris II Panthéon-Assas) Laurent LEVENEUR (Université Paris II Panthéon-Assas) Daniel MAINGUY (Université de Montpellier I) Patrick MAISTRE du CHAMBON (Université Pierre Mendès France Grenoble II) Didier R. MARTIN (Université Paris Sud XI) Pierre MAYER (Université Paris I Panthéon-Sorbonne) Pierre MOUSSERON (Université Montpellier I) Françoise PERROCHON (Université Montpellier I) Philippe PETEL (Université Montpellier I) Frédéric POLLAUD-DULIAN (Université Paris I Panthéon-Sorbonne) Thierry REVET (Université Paris I Panthéon-Sorbonne) Raymonde VATINET (Université René Descartes Paris V) Georges VIRASSAMY (Université des Antilles et de la Guyane) Guillaume WICKER (Université Montesquieu Bordeaux IV)