Local view for "http://purl.org/linkedpolitics/eu/plenary/2007-07-09-Speech-1-214"
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"en.20070709.22.1-214"2
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"Mr President, I would like to congratulate Mrs Wallis on the work that she has done. I believe that we are going to achieve a good agreement, that a majority in Parliament is going to support this proposal and that we will have a new Regulation in the field of non-contractual obligations.
I would like to point out, however, that this Regulation is only going to be the beginning. There is a fundamental difficulty throughout the field of international private law and in the field of conflict of laws, which is simply the judges’ inability to apply a law that is not their own. In the European Union – and in general – we have trained judges to apply their own law. When an issue arises in which they have to apply a foreign law, there are immense difficulties.
It is clear that, if two English people have a road accident in France, they are going to apply France’s traffic laws – they would not be able to see someone driving on the left as being in the right. In the second part, with regard to the civil liability to be determined, if the judge is English I find it very hard to believe that he would accept the application of the restricted liability rules that exist in French law and not apply the English law.
I therefore believe that this work is only just beginning, as I said before. Commissioner Frattini mentioned a subsequent study by the Commission – which is also mentioned in the draft Regulation – which is on the applicability of the law by the jurisdictions. I believe that this is the second part, a crucial second part.
Those of us who have worked in this field have seen that the courts have a general tendency to apply their own law, the ‘lex fori’. This agreement or this Regulation cannot therefore be interpreted without taking account of which jurisdiction is applicable at a particular moment.
The jurisdiction is largely going to determine the law applicable because judges normally resort to any kind of subterfuge. Here, for example, we have eliminated the subterfuge of referral, but there is still the whole issue of public order — the public order clauses — which take up the crucial provisions of national law contained in the draft agreement.
I therefore have the impression that, working on the basis that this Parliament is going to approve the proposal presented to us by Mrs Wallis by a large majority, once it has been approved we are going to have to carry on working in this field. We eagerly await the Commission’s studies on this subject and in particular an important element, which is the work with the people who are going to have to apply this Regulation: the judges themselves. We wonder what the attitude of the judges is and how this Regulation will be applied in practice, since experience with international agreements and with the application of the rules of the States’ international private law demonstrates this tendency on the part of judges to apply their own national law."@en1
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