L'applicabilité spatiale du droit communautaire dérivé au regard de la théorie générale du droit international privé
(2004)
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- Authors
- Supervisors
- Fallon, Marc
- Abstract
- The systematic analysis of various fields of material community law (competition law, transport law, consumer protection, protection of workers and commercial agency) leads to a fundamental observation: all community acts fix their own scope of application, according to the unilateralist method. Community acts therefore take a clear stand regarding a topical problem of conflict of laws. Conflict rules aim, among other, at selecting the law applicable to international situations and thereby determine the respective scope of application of the competing laws (be they of national or community origin). The "unilateralist" theory postulates that the scope of application is determined by the material norm itself. This method had dominated private international law from the XIIIth until the XIXth century. Thereafter, under the leading influence of C.F. von Savigny, an author who is said the have brought a "Copernican"revolution in the field of conflicts, another theory prevailed. The later called "bilateralism" provides that specific rules designate, on an equal footing, national or foreign law and determine the scope of material rules, since material rules are silent in this respect. The use of the unilateralist method in community law is astonishing in view of the fact that most national legal orders have long abandoned this method. Various possible explanations are scrutinized. Some dwell upon the specificities of the European legal order; others derive from the theory of private international law. The search for an explanation offers the chance to overcome long-established bias against the unilateralist theory. The postulate of this theory eventually offers the only coherent explanation of the observed phenomenon.
- Affiliations
Citations
Francq, S. (2004). L’applicabilité spatiale du droit communautaire dérivé au regard de la théorie générale du droit international privé. https://hdl.handle.net/2078.5/92750