The Role of the Characteristic Performance from the Rome Convention to the Rome I Regulation on the Law Applicable to Contracts

Transcription

1 Ugo Villani The Role of the Characteristic Performance from the Rome Convention to the Rome I Regulation on the Law Applicable to Contracts The characteristic performance, whose origin is in the Swiss doctrine and jurisprudence, was accepted in the European private international law by the Rome Convention of 1980 on the law applicable to contractual obligations. Pursuant to Article 4 of this Convention, to the extent that the law applicable to the contract has not been chosen by the parties, the contract shall be governed by the law of the country with which it is most closely connected. In order to ascertain this country, paragraph 2 of Article 4 declares that it shall be presumed that the contract is most closely connected with the country where the party who is to effect the characteristic performance of the contract has, at the time of the conclusion of the contract, his habitual residence. However, this presumption shall be disregarded if it appears that the contract is more closely connected with another country. In the 1980 Rome Convention, according to the Author, the characteristic performance is only a presumption directed to let the real conflict rule work, namely the proximity rule. On the contrary, the Rome I Regulation of 2008 mainly aims at securing legal certainty as regards the law applicable to contracts. Therefore that law shall be determined in accordance with the rules specified in an automatic, strict way by the new Article 4, paragraph 1, for eight types of contracts. Only if the contract cannot be categorized in one of these types, or if its elements fall within more than one of the specified types, it shall be governed by the law of the country where the party required to effect the characteristic performance has his habitual residence. In the present Author s view, in the cases envisaged by this provision of the Rome I Regulation it will often be difficult to determine the characteristic performance. As a consequence, it will be necessary to have recourse to the law of the country with which it is most closely connected, which has to be applied where it is impossible to determine the characteristic performance of the contract.

2 Sergio M. Carbone EU Law and Sport after Lisbon Treaty This paper carries out an analysis of the impact produced in the field of sports by the enforcement of the EU fundamental principles regarding nondiscrimination, freedom of circulation and competition. After having underlined that, according to the new drafting of Article 165 TFEU, the EU has actually been entrusted with a specific competence for such a field, the Author provides a survey of the ECJ consolidated case-law according to which the above mentioned EU fundamental principles have been implemented and it is expected to be implemented after the Lisbon treaty also in the sport sector, taking into account its specific nature. As a consequence, rules governing the field at stake must be coherent and applied consistently with EU law notwithstanding the fact that the authorities endowed with such a task are often to be regarded as nonjurisdictional.

3 Saverio de Bellis The New Role of National Parliaments in the European Union The Lisbon Treaty, in the process of European integration, constitutes an important step in the involvement of national parliaments in European Union affairs. A new general article of declaratory value has been inserted in Article 12 of the Treaty on European Union, stating that national parliaments contribute actively to the good functioning of the Union, but there are other new rules in the Protocol on the application of the principles of subsidiarity and proportionality and in the Protocol on the role of national parliaments. This paper analyses how the Lisbon Treaty shapes the new role of national parliaments in the European Union. We will have to check how these new provisions concerning national parliaments will be applied.

4 Ornella Porchia Subsidiarity through Competences Re-Organization? The Reform Treaty and the Distribution of Competences The present article deals with the issue of the re-organization of the EU competences system by the Reform Treaty. To this regard, the Treaty of Lisbon confirms the relevance of the principles of the conferral of competences, proportionality and subsidiarity as cornerstones of the whole structure. However, greater emphasis is put on the first of these principles, so to dispel any doubt on the residual nature of the competences conferred to the EU. Another important element of novelty introduced by the Lisbon Treaty is the distinction between three types of EU competences: exclusive powers, concurrent or shared powers and areas of supporting actions by the EU. This distinction may help to clarify the legal framework, although not always based on perfectly consistent criteria. The article goes on taking into account the subsidiarity and the proportionality principles and seeks to clarify their scope and content. The Protocol annexed to the Lisbon Treaty specifies the obligations stemming from the subsidiarity and proportionality principles for the EU institutions, in particular the Commission, during both the pre-legislative and the legislative phase. As for subsidiarity, such a clarification, especially with regard to the prelegislative phase, may represent a major breakthrough for the correct application of the principle. To this regard, it must be also observed that the Protocol introduces an early-warning mechanism that allows national parliaments to exercise their control on the legislative proposals presented by the Commission, so to assess their conformity with the subsidiarity principle. Lastly, the article shows that the most important innovation brought forward by the Lisbon Treaty is what can be called the increasing proceduralization of the subsidiarity principle. This could have a positive impact on the effective implementation of the principle by the law-making institutions, as well help the European Union Court of Justice to exercise a more systematic control (ex post) on the respect of the principle. Furthermore, the article highlights that these mechanisms, by increasing the participation of national actors already during the drafting phase, may contribute to a better and faster implementation of EU acts.

5 Roberta Bogni The role of Eurobarometer in the Communication Policy of the European Union The relevant changes brought in by the Lisbon Treaty at institutional level require reflections concerning the new communication policy of the European Union and the specific contribution given by Eurobarometer surveys. Aim of this work is to study the potential of Eurobarometer, instrument created in 1973 and now boasting several methods of research and analysis of the European public opinion. Besides the activity of Eurobarometer stimulates observations on its legal and juridical outline, as well as remarks regarding the linguistic and terminological weight of its opinion polls. The EU case law can also help in valuing the pre-trial function of Eurobarometer and in making forecasts on its future use and relations with EU institutions, national public authorities and citizens.

6 Fabio Raspadori Participative Democracy and the European Citizens Initiative Starting from the concept of the participative democracy, the present article underlines how a more active participation of citizens to policy can help the notion of representative democracy, that appears day by day more in crisis. The Lisbon Treaty has the merit to have introduced some instruments of the participative democracy within the European founding Treaties and, among these, the European citizens initiative represents the most ambitious. The most part of the article is dedicated to the Proposal of the European Commission on the Regulation of the European Parliament and of the Council on the citizens initiative, presented on 31st March 2009 and presently under discussion within the new ordinary legislative procedure of the European Union. The Author describes the contents of the most significant parts of the act, as well as the least convincing parts. The article finishes with a general appreciation of the Commission Proposal for its innovative character, that emerges especially in comparison with the poor attention given by the national constitutions to the participative democracy.

7 Francesca Martines Rules of Origin and Territorial Application of the Association Agreement between the EU and Israel In the case discussed in this comment (Case C-386/08 Firma Brita Gmbh c. Hauttzollamt Hamburg-Hafen) the Court of Justice rules that goods originating in the Israeli settlements located in (West Bank) occupied territories cannot be considered of Israeli origin and therefore cannot be eligible for preferential customs treatment under the EC-Israel Association agreement. The reasoning of the Court which clarifies some issues related to the application of rules of origin is not totally convincing when the Court applies the international law rules on the effect of treaties on third countries to settle the question of the territorial scope of the EC-Israel Association Agreement, the actual question of the case. The distinction between the territorial spheres of competence of the two agreements made by the Court correctly excludes the application of preferential treatment to goods produced in the Israeli settlements under the EC-OLP association agreement but seems to exclude as well exports of Palestinian products into the EU through certificates of origin issued by Israeli authorities which control the occupied territories. This conclusion could be considered a sanction for Israel (although this is not verbalized by the Court which is clearly aware of the consequences of its judgment in a very delicate international context) but could result in a severe penalization for Palestinian exports.

8 Donatella del Vescovo Development of Article 54 of the Schengen Convention in the European Union The growing internationalization of crime, more and more cross-border, the discipline of criminal jurisdiction concerns situations in which various member States are competent to perform the prosecution for the same case. In addition to this, currently, it may happen more frequently that several proceedings may occur on the same case, or conflicts positive of jurisdiction, because the capacity of many national courts in criminal matters has been significantly increased over the last few years. The multiplicity of the processes damages the rights and interests of the individual with the danger of duplication of criminal proceedings. In an area of freedom, security and justice evolved is necessary to avoid such consequences disadvantageous, hindering the establishment of many processes on the same events. The legal limit is precisely the principle of ne bis in idem. This principle does not prevent conflicts of jurisdiction when several processes are underway in two or more member States; it may come into play only by preventing the prosecutions for the second time on the same case, when the proceedings in a member State has concluded with a decision that prevents the opening of a new one (res judicata). The structure of this work is divided into different points. In the first place the essential characteristics of ne bis in idem principle legislation community are summarized, and it will verify the existence of a general principle of European law that prohibits to submit to a new trial one who has already been processed for the same facts by the courts of another State. Subsequently, it will focus on the possible assimilation of ne bis in idem considered, while highlighting the copious decisions by a certain reluctance of the member States to a boundary excessive scope of application ne bis in idem. They will ensure that neither the practice of the Court, or the application of the ne bis in idem principle in the framework of multilateral treaties in criminal matters of the Council of Europe have led to a common standard of ne bis in idem in Europe.