Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter C.15: Classification (characterization)

Stefania Bariatti

I. Classification in national legal systems

1. Notion

Classification or characterization in national conflict-of-law systems consists of ‘determining which juridical concept or category is appropriate in any given case’ (Lord Collins of Mapesbury and others (eds), Dicey, Morris and Collins on the Conflict of Laws (15th edn, Sweet & Maxwell 2012) 2–003; see also Henri Batiffol and Paul Lagarde, Droit international privé, vol 1 (8th edn, Librarie Générale de Droit et de Jurisprudence 1993) 474 ff; Wilhelm Wengler, ‘Réflexions sur la technique des qualifications en droit international privé’ [1954] Rev.crit.DIP 662; Etienne-Adolphe Bartin, ‘La doctrine des qualifications et ses rapports avec le caractère national des règles du conflit des lois’ (1930) 31-I Rec. des Cours 565 ff) or of interpreting the legal concept or category used in choice-of-law rules in order to determine which rule should apply to a given case, or of determining the scope of a choice-of-law rule. However, as will be discussed below, this issue has many points of contact with the determination of the scope of the applicable law, at least where the choice-of-law rule directly indicates which issues fall under the law applicable to the given case.

While the problem of classification is a general one, common to all legal rules, it has specific features within the conflict of laws since choice-of-law rules apply when the given case is international, ie when it is linked to several legal systems and may be classified differently in each of them. Moreover, even when a legal system provides for numerous and very detailed choice-of-law provisions, the majority of such provisions employ markedly general and wide categories, which may create problems when defining the given case.

2. The solutions proposed by scholars

According to the two principal theories that have traditionally been debated for over a century, characterization may be carried out according to either the →lex fori or lex causae. Both theories have found support in legal literature.

The largely prevailing theory of lex fori is based upon the assumption that the legislature utilizes the legal concepts as they appear in its own legal system. From this perspective, the resolution of the characterization issue implies that each conflict-of-laws rule is part of a legal system which is expected, or aspires, to be as comprehensive as possible in terms of substantive rules. That means a system in which each and every legal concept used in the choice-of-law rules finds its correspondent in the p. 358substantive rules of the same state, even if those substantive rules may be found inapplicable in a given case where the relevant connecting factor leads to the application of a foreign law. This theory also underlines the consistency between the scope of the substantive rules and of the choice-of-law provisions of the forum, all of which serve the same needs and goals pursued by the legislature.

Under the lex fori theory, if the applicable legal system is a foreign system, a ‘second classification’ has to be carried out in order to determine which provisions of the foreign substantive law apply to the case. It may then happen that the given case is qualified differently than under the lex fori, and thus is subject to a different set of provisions than those that would apply had the case been governed by the lex fori itself. A typical example consists of the relationship between fathers and children born out of wedlock, which qualifies as a family relation in some countries and as the source of non-contractual obligations or ex lege obligations in other countries. If the conflict-of-laws rule concerning family relations of the lex fori designates the law of such a country, the case will be classified as a claim arising out of a non-contractual or ex lege obligation and would be solved according to the relevant provisions of the lex causae.

The entire process may become more complicated whenever the differing classifications of the given case under the involved legal systems lead to conflicting results through the application of different laws (‘conflits de qualifications’). The most famous case is the Bartholo case ([1891] J.Dr.Int’l 1171), which concerned an Anglo-Maltese couple married in Malta and domiciled in Algeria (where French law applied at the time). Upon the death of the husband, the widow claimed a →succession right that was granted to her under their common national law, while the French qualification of such a right/claim as pertaining to matrimonial property would have led to the rejection of the claim.

The second major classification theory consists of the characterization according to the lex causae, the law applicable to the case as designated by the choice-of-law provisions of the forum. The main objection to this theory is based upon a vicious circle, in that the lex causae cannot be determined until the choice-of-law rule is determined and has been applied.

Yet a third classification theory, introduced by Ernst Rabel, supports a wider solution according to which the domestic private international law rules refer to the legal concepts of many legal systems, to be determined in each case upon a comparison of the categories used in the various systems. This solution aims mainly at resolving the issue of relationships or cases that are ‘unknown’ in the forum and thus may not be classified under its general categories.

Finally, a fourth, pragmatic solution has been proposed by some scholars, mainly French, who emphasize the role of the claim and the underlying facts as described by the plaintiff, which should be characterized by the court in each case under the legal rules of the countries that may potentially apply to it.

While the majority are silent regarding characterization, a minority of legal systems lay down specific provisions on characterization, which is usually to be determined according to the lex fori. Another solution, albeit infrequent, consists in classifying a certain issue directly. An example is art 5 Hague Testamentary Dispositions Convention (Hague Convention of 5 October 1961 on the conflicts of laws relating to the form of testamentary dispositions, 510 UNTS 175). Here ‘form’ is qualified as both any requirement or limitation to testamentary dispositions ‘by reference to the age, nationality or other personal conditions of the testator’, and ‘the qualifications that must be possessed by witnesses for the validity of a testamentary disposition’.

The scholarly debate has faded in recent times. First, several legal systems have introduced rather detailed choice-of-law rules, thus reducing the breadth of categories to be interpreted. Second, the parameters have become less rigid. While the lex fori theory remains predominant, legal categories are interpreted more broadly in order to cover also relationships and situations that are unknown to the domestic legal system but have arisen under a specific foreign law. A preliminary classification should then be carried out pursuant to the lex causae, ie the law of the country under which the given relationship or situation has arisen, in order to determine which choice-of-law rule to apply. Third, the general legal categories used in the choice-of-law provisions are interpreted in a more flexible and autonomous manner precisely due to the fact that they apply to cases linked to other countries.

Such flexibility has also been fostered by the increasing number of international conventions p. 359providing choice-of-law rules. Specific characterization solutions have been suggested for characterizing the categories used in the conventions, since recourse to the →lex fori would undermine the uniform application of the rules and lead to unilateral interpretations and divergences between the rights and obligations of both the contracting states and individuals (Stefania Bariatti, L’interpretazione delle convenzioni internazionali di diritto uniforme (Cedam 1986); Michael Bogdan, ‘Private International Law as Component of the Law of the Forum: General Course on Private International Law’ (2011) 348 Rec. des Cours 134; Paul Lagarde, ‘Observations sur l’articulation des questions de statut personnel et des questions alimentaires dans l’application des conventions de droit international privé’, Mélanges von Overbeck (Editions Universitaires Fribourg 1990) 511).

The same type of problem arises with EU private international law provisions: while several rules have been inserted in many EU acts since the entry into force of the Rome Treaty (Treaty of 25 March 1957 establishing the European Economic Community, 294–298 UNTS), in recent years novel issues have arisen and new solutions have been proposed in the wake of the new EU competence in the area of conflict of laws under the Amsterdam Treaty (Treaty of Amsterdam amending the Treaty on the European Union, the Treaties establishing the European Communities and certain related acts (consolidated version), [1997] OJ C 340/01).

II. Classification/characterization and interpretation in EU private international law

1. Does ‘characterization’ have the same meaning in EU and in national conflicts of laws?

Among the many general private international law questions and principles, the development of an EU system of the conflict of laws has also brought about the issue of classification and interpretation of the concepts used in EU choice-of-law rules. The different characteristics of national legal systems and of the EU legal system may suggest different approaches to this question.

At first sight there appear to be no particular differences in the technique of drafting EU Regulations in this field in comparison with national statutes and acts. Thus it might be inferred that the solutions may be the same. Indeed, it has been observed that the notions used in EU private international law instruments should be primarily construed according to substantive EU law, where such rules exist, ie according to the law of the system establishing the choice-of-law rule to be applied, as if it were a lex fori. Notions such as ‘service’, ‘transport’, ‘consumer’ etc, should then have the same meaning as in the EU Treaty and in secondary EU law, unless otherwise provided.

However, the substantive law basis at EU level is far from complete, so that – contrary to national choice-of-law provisions – EU private international law rules are not always assisted by substantive law notions of the same legal system. Absent an EU ‘lex fori’ category or concept, recourse to national laws is possible subject to the conditions and circumstances to be explored below (II.2.). Moreover, the lex causae characterization may create difficulties, in particular where the EU choice-of-law rule designates the law of a third state. In fact, this solution would lead to applying non-Member States notions and concepts to interpret categories established in EU instruments, which often find their common background in the domestic law of Member States and in EU secondary law.

A second consideration relates to the fact that in some fields, such as family matters, EU institutions lack general competence to adopt harmonized substantive rules and have not adopted any such rules. For this reason in the ‘Hague Programme strengthening freedom, security and justice in the European Union’ ([2005] OJ C 53/1) the Council invited the Commission to submit proposals on the recognition and enforcement of decisions on maintenance and on the conflicts of laws in matters of succession, of →matrimonial property regimes and divorce (→Divorce and personal separation). However, the Council explicitly declared that the future private international law instruments ‘should not be based on harmonised concepts of “family”, “marriage” or other. Rules of uniform substantive law [→Uniform substantive law and private international law] should only be introduced as an accompanying measure, whenever necessary to effect mutual recognition of decisions or to improve judicial cooperation in civil matters’ ([2005] OJ C 53/1, 13). In the same line of reasoning, Recital (11) of the Insolvency Regulation (Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings, [2000] OJ L 160/1) expressly states that national laws in the field of p. 360insolvency differ widely and that the Regulation does not aim at imposing unique proceedings. More generally, acts adopted pursuant to art 81 TFEU (The Treaty on the Functioning of the European Union (consolidated version), [2012] OJ C 326/47) are not aimed at harmonizing substantive law on matters where common private international law provisions are adopted. This is no surprise, considering that private international law has developed also in national legal systems with the aim of providing a solution for cases involving several legal systems with different substantive rules, but the harmonization of such substantive rules was neither deemed necessary nor required for the development of national conflict-of-laws rules.

Third, as in national legal systems, a term may have different meanings in different fields of EU law (eg ‘residence’, ‘stable organization’, ‘domicile’ (→Domicile, habitual residence and establishment)). In such cases, in order to achieve certainty, the best solution would be to adopt specific definitions for conflict-of-laws purpose according to the subject matter, rather than to leave this responsibility to the EU courts or to national courts. Such definitions would help secure uniformity of interpretation and application as well as uniformity of rights and obligations of individuals in all Member States. However, different solutions might be preferable (i) for those legal notions which determine the scope of application of an act, where the ECJ supports a uniform and autonomous interpretation, and (ii) for those notions which come into play when the application of a single provision is at stake but a common definition is lacking, where recourse to a national choice-of-law rule may be preferable or even required.

A further issue arises out of the requirement for EU law to have the same effect in all Member States, in order to avoid discrimination between similar situations and ensure equality of rights and obligations for parties to legal relationships irrespective of the Member State concerned.

In light of the above considerations, it is reasonable to suggest that the solution to the problem of characterization in EU conflict of laws may differ from that under national legal systems.

2. The issue of interpretation of legal terms used by EU conflicts-of-laws rules: an old issue viewed through fresh eyes

In interpreting the 1968 Brussels Convention (Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, [1972] OJ L 299/32, consolidated version, [1998] OJ C 27/1), as well as the private international law provisions inserted in much EU secondary legislation, the ECJ has provided criteria and methods that apply irrespective of the role of notions and concepts within such provisions (general category, →connecting factor, jurisdiction criterion etc). Actually, in the interests of coherence when construing EU provisions, there should be no difference between, for instance, the qualification of ‘divorce’ or ‘marriage’ in order to find the applicable law under the →Rome III Regulation (Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10) and the same notions to determine whether the Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338/1) or the Brussels I Regulation (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) applies (see II.3. below).

The same approach should also be followed for connecting factors and legal concepts used in other acts concerning jurisdiction and recognition of judgments, as well as those other acts which employ legal notions for the application of substantive rules. Interpretation may concern the terms used for determining the scope of application of the EU instrument (be it the substantive scope, its application in space and time), or any other legal terms. As indicated by the ECJ and as discussed below (II.3.), such terms may have an ‘international’ meaning or they may refer to a national system of law.

3. How to provide a solution to interpretative questions? The principles of interpretation developed by the ECJ

Without expressly declaring it, when interpreting EU law the ECJ applied the same general principles of interpretation which international courts and tribunals usually apply, which are found in the Vienna Convention on the Law of Treaties (of 23 May 1969, 1155 UNTS 331) p. 361at arts 31–3. This is no surprise though, and is justified by the international origin of the EU legal system. Moreover, the rules on interpretation codified in the Vienna Convention have proved to be rather flexible and adaptable to any type of treaty on all subject matters (Stefania Bariatti, L’interpretazione delle convenzioni internazionali di diritto uniforme (Cedam 1986) 251. Predictably the ECJ has used the same principles and rules when interpreting the 1968 Brussels Convention.).

The ‘golden rule’ of interpretation to which the Court has had recourse in a multitude of cases consists of the autonomous interpretation of legal terms used in EU law. As stated in Cilfit,

it must also be borne in mind, even where different language versions are entirely in accord with one another, that Community law uses terminology which is peculiar to it. Furthermore, it must be emphasized that legal concepts do not necessarily have the same meaning in Community law and in the law of the various Member States. Finally, every provision of Community law must be placed in its context and interpreted in the light of the provisions of Community law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied. (Case 283/81 Srl CILFIT and Lanificio di Gavardo SpA v Ministry of Health [1982] ECR 3415, paras 18–20)

To a certain extent, the ECJ has upheld the coherence and completeness of the EU legal system, but in so doing it has often compared Member States’ legal systems and has construed an autonomous notion whenever common basic principles emerged, irrespective of limited and secondary divergences. Conversely the ECJ has refused to draw general conclusions where a notion was accepted only in one or a few Member States.
Nevertheless, as in national legal systems, a term may have different meanings according to context and the objectives and scope of the legal acts where it is used. Clearly a special meaning can only be ascertained on a case-by-case basis. Generally speaking, the more specific the meaning in its context, the less may it be exported to other instruments. Moreover, analogy should normally be excluded when a special meaning is used:

S’agissant, en premier lieu, du libellé, il convient de rappeler que la Cour a déjà jugé que les dispositions du statut qui ont pour seule finalité de réglementer les relations juridiques entre les institutions et les fonctionnaires, en établissant des droits et obligations réciproques, comportent une terminologie précise dont l’extension par analogie à des cas non visés de façon explicite est exclue. (Case T-190/03 Sanni Olesen v Commission of the European Communities [2005] ECR II-805, para 39)

Nevertheless, it should be noted that one notion is frequently used with the same meaning throughout EU instruments, with the precise aim of coordinating their respective scope of application. For example, one may reasonably expect (i) that the notion of ‘bankruptcy, proceedings relating to the winding-up of insolvent →companies or other legal persons, judicial arrangements, compositions and analogous proceedings’, which are excluded from the Brussels I Regulation (under its art 1(2)(b), as interpreted by the Court of Justice in Gourdain: Case 133/78 Henri Gourdain v Franz Nadler [1979] ECR 733), would fall within the notion of ‘insolvency proceedings’ to which the Insolvency Regulation applies (however, Recital (7) of the revised Insolvency Regulation states that the interpretation of this Regulation ‘should as much as possible avoid loopholes between the two instruments’ and that the fact that a national procedure is not listed in Annex A of this Regulation does not imply that it falls within the scope of the Brussels I Regulation); (ii) that the notion of ‘civil and commercial matters’ p. 362is the same in the Brussels I Regulation, the European Service Regulation (Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, [2007] OJ L 324/79) and the Evidence Regulation (Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, [2001] OJ L 174/1); and (iii) that the notion of ‘maintenance obligations’ that are excluded from the Brussels IIa Regulation and now from the Brussels I Regulation and the Brussels I Regulation (recast) (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), [2012] OJ L 351/1; →Brussels I (Convention and Regulation)) is the same notion adopted in the Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations, [2009] OJ L 7/1). The same applies to the notions of ‘successions’, ‘matrimonial property’ and the like. Indeed, this solution meets the need for consistent interpretation among these instruments, as frequently called for in the recitals to these regulations. However, as indicated by the ECJ, the objective of consistency cannot, in any event, lead to the provisions of a regulation ‘being interpreted in a manner which is unconnected to the scheme and objectives pursued by that regulation’ (Case C-45/13 Andreas Kainz v Pantherwerke AG [2014] OJ C 85/10).

Special meanings may be defined directly in the relevant instrument, independent of any national law notions. Such substantive definitions are elevated to autonomous notions, which apply in a uniform manner in all Member States. National courts are more inclined to disregard domestic notions and to scan the EU legal system for interpretations of the terms to be used in the definition. However, express substantive definitions may usually serve only for the purposes of the instrument where they are established, and may not be used to interpret other provisions, even at times within the same instrument. (See for example the notions of ‘parental responsibility’, ‘rights of custody’ and ‘rights of access’ provided in Article 2 Brussels IIa Regulation; the notion of ‘domicile’ in the Brussels I and Brussels IIa Regulation with reference to the UK; the notion of ‘centre of main interests’ in the EU provisions on freedom of establishment (→Freedom of establishment/persons (European Union) and private international law) and in the Insolvency Regulation; the notion of ‘seat’ of a company in the Brussels I Regulation, which has even different meanings in the same act at arts 22(2) and 60).)

In certain cases and subject to certain conditions, the ECJ has admitted reference to national legal concepts and notions. Thus the court has stated that

the terms of a provision of Community law . . . which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent interpretation, which must take into account the context of the provision and the purpose of the relevant rules. However, even in the absence of such an express reference, the application of Community law may necessitate a reference to the laws of the Member States where the Community judicature cannot identify in Community law or in the general principles of Community law criteria enabling it to define the meaning and scope of a Community provision by way of independent interpretation. (Case T 43/90 José Miguel Díaz García v European Parliament [1992] ECR II-2619)

Reference to domestic law may follow three patterns: (i) it may lead to the direct application of national notions, ie of the substantive law notions of the lex fori, or (ii) it may refer to the choice-of-law rules of the forum in order to designate the law which will provide the relevant notion (as provides art 22(2) of the Brussels I Regulation concerning the seat of a company or art 5(1) of the same regulation concerning the →place of performance of the obligation in question), or (iii) it may refer to a certain and specified Member State (as does art 2(2) of the Posted Workers Directive (Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, [1997] OJ L 18/1) with regard to the notion of worker, that is to be determined by the law of the Member State where the worker is posted). In these cases autonomy is abandoned, but uniformity is still within reach. In the first case the solution reached is obviously not uniform, as each state will have recourse to its own categories, but in the third case the solution is certainly uniform, as all states will refer to the national system specifically designated. In the second case the resulting interpretation will be uniform insofar as choice-of-law rules are uniform throughout the EU, all national courts being expected to apply the same law and to reach the same conclusion.

4. When should each method of interpretation apply and when is the search for autonomous interpretation appropriate?

It seems hardly disputable that the interpreter should seek to find an autonomous meaning as the ideal solution for any interpretative issues under both EU and international instruments and legislation. As already stated, this would assure that the respective rights and obligations of the Member States are equally balanced and that the same rights and duties are recognized to the private parties to a legal relationship p. 363irrespective of the court seized while avoiding discrimination between similar situations.

Accordingly, it seems appropriate that characterization strictu sensu should be effected by means of autonomous interpretation of given legal categories, without recourse to national concepts. The only open issue relates to the fact that so far the EU courts have elaborated autonomous concepts on the basis of the general Member State laws principles, while EU universal choice-of-law rules may lead to the application of non-Member State laws. In fact, the lex fori method could be adapted to the specific nature of the EU in that, for characterization purposes in EU conflict-of-laws provisions, the national legal systems of Member States may be regarded as the general background and basis for ‘lex fori concepts and categories’. There may be cases, however, where the lex causae characterization should be preferred. It is submitted here that the EU choice-of-law rules should function like any national choice-of-law rules and accordingly be open to legal concepts and categories from non-Member States.

It may also be maintained that the autonomous interpretation is highly recommended, even mandatory, in respect of provisions and notions which establish the scope of application of the relevant instrument, which should depend neither on the lex fori nor on any other domestic law. The ECJ has constantly followed this ‘golden rule’ since it started interpreting the 1968 Brussels Convention, thus promoting uniformity of its application.

In this respect, however, we have to consider that in many instances a provision refers to a general category, but then it reduces its scope through ‘except for’ or ‘save’ clauses. The excluded instances are usually part of the general concept, but for a variety of reasons they are kept outside the scope of the particular EU instrument (eg a claim concerning →matrimonial property qualifies as a ‘civil and commercial matter’, but it does not fall under the Brussels I Regulation, while the Service and Evidence Regulations may apply). However, one may ask whether the exclusion of certain matters from the Rome I Regulation (Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), [2008] OJ L 177/6; →Rome Convention and Rome I) pursuant to its art 1(2) implies that they all qualify as contractual matters. The answer may be easier – and affirmative – with regard to matters excluded from the →Rome II Regulation (Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II), [2007] OJ L 199/40) under art 1(2), where they are expressly qualified as ‘non-contractual obligations’. (See also art 1(2) Succession Regulation (Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, [2012] OJ L 201/107; →Rome IV Regulation).)

Sometimes the contrary solution is proposed, and a provision widens the scope of an instrument through ‘assimilation’ clauses. (See, among the many possible examples, the current version of art 1 of Reg 422/67 (Regulation No 422/67/EEC, 5/67/Euratom of the Council of 25 July 1967 determining the emoluments of the President and members of the Commission and of the President, Judges, Advocates-General and Registrar of the Court of Justice, [1967] OJ 187/1), according to which for the purposes of the Regulation non-marital partnerships are to be treated as →marriage and the unmarried partner of a member or former member is to be considered as their spouse under the sickness insurance scheme.)

Apart from these special cases, it may be asked whether a legal concept used to establish the scope of application of one instrument may be distinguished from when it serves other purposes, and whether the interpreter should seek an autonomous meaning whatever the role of the provision within the given instrument and whatever the role of the legal concept in the provision.

Case-law yields no systematic or coherent guideline, in particular as to when reference to national law should be admitted. The EU courts rather convey the impression that the solution should be found on a case-by-case basis, according to the legal concept at stake. It might be inferred that reference to a domestic law is possible in particular where such law is determined through choice-of-law rules, particularly where they are common to all Member States or where they are established in the same instrument.

5. p. 364When things become (apparently) easier: classification by the legislature by determining the scope of the applicable law or of the act

Finally, in some instances the EU legislature has directly or indirectly effected the classification of a certain category or legal notion by way of determining the scope of a provision, an act or of the applicable law. For example, when art 5(e) Rome II Regulation submits the question of ‘whether a right to claim damages or a remedy may be transferred . . . by inheritance’ to the law applicable to non-contractual obligations, it implicitly characterizes this issue as a matter pertaining to non-contractual obligations rather than to successions. Under subsection (h) of the same provision, the manner in which a non-contractual obligation may be extinguished as well as rules of →prescription and limitation are subject to the law applicable to the non-contractual obligation as designated pursuant to the Regulation, thereby implying that the EU legislature deems that prescription pertains to substantive law rather than to procedural law. (In the same direction see also art 12(d) Rome I Regulation on the law applicable to contractual obligations.) When art 1(g) Succession Regulation excludes from the scope of the Regulation ‘questions governed by the law of companies . . . such as clauses in the memoranda of association . . . which determine what will happen to the shares upon the death of the members’, it classifies such issue as pertaining to company law rather than to inheritance.

This shows, as submitted at the outset, that characterization is closely linked to the determination of the scope of the applicable law. Along the same lines, the insertion of →culpa in contrahendo in art 12 (and of →unjust enrichment and →negotiorum gestio in arts 10 and 11) Rome II Regulation shows that classification may be indirectly carried out in determining the scope of the act itself.

On the contrary, the →burden of proof is clearly classified in both the Rome I and the Rome II Regulations as pertaining to procedure, since art 1(3) of both Regulations states that they do not apply to evidence and procedure, with the exception of the respective arts 18 and 21–2, whereby the rules on presumption provided by the law applicable to the contractual/non-contractual obligation at stake apply to presumptions of law or determine the burden of proof.

It is worth asking whether these provisions will enjoy a wider reach, ie whether the classification they provide will be followed outside their scope of application and will thus influence the way that the Member States classify these issues under national law both when contractual/non-contractual issues outside the scope of the Regulations fall for consideration, and when other types of obligation or relationship not governed by EU private international law provisions are at stake. While it may be expected that EU rules will provide an easy and coherent pattern that would also align cases subject to national conflicts-of-laws provisions and grant coherence with national legal systems, it is possible that many national courts will be inclined to support the independence of their national legal system when EU rules do not apply.

Literature

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  • Stefania Bariatti, ‘Restrictions Resulting from the EU Treaty Provisions for Brussels I and Rome I’ in Johan Meeusen, Marta Pertegás and Gert Straetmans (eds), Enforcement of International Contracts in the European Union: Convergence and Divergence between Brussels I and Rome I (Intersentia 2004) 77;

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  • Erik Jayme, ‘Zur Qualifikationsfrage im internationalen Privatrecht’ [1976] ZfRV 93;

  • Franz Kahn, ‘Latente Geseztkollisionen’ (1891) XXX JherJb 10;

  • Paul Lagarde, ‘Observations sur l’articulation des questions de statut personnel et des questions alimentaires dans l’application des conventions de droit international privé’, Mélanges von Overbeck (Editions Universitaires Fribourg 1990) 511;

  • Carmen Parra Rodriguez, ‘Characterisation and Interpretation in European Family Law Matters’ in Alberto Malatesta, Stefania Bariatti and Fausto Pocar (eds), The External Dimension of EU Private International Law in Family and Succession Matters (Cedam 2008) 337;

  • Ernst Rabel, ‘Le problème de la qualification’ [1933] Rev.crit.DIP I-62;

  • François Rigaux, La théorie des qualifications en droit international privé (Larcier 1956);

  • Teun Struycken, ‘Les conséquences de l’intégration européenne sur le développement du droit international privé’ (1992-I) 232 Rec. des Cours 307;

  • Laura Tomasi, Carola Ricci and Stefania Bariatti, ‘Characterisation in Family Matters for Purposes of European Private International Law’ in Johan Meeusen and others (eds), International Family Law for the European Union (Intersentia, 2007) 341;

  • Wilhelm Wengler, ‘Réflexions sur la technique des qualifications en droit international privé’ [1954] Rev.crit.DIP 662.