1.1.1. The Freedoms* Pervasive Neutrality

In principle Community law and the freedoms are neutral as to the nature of a

particular national rule. Whether a rule is considered to be part of private law or public

law, of substantive law or private international law is in principle irrelevant.'~ As an

autonomous legal order, the scope of Community law cannot depend on domestic

qualifications of law.'" Instead, national rules are brought within the scope of the freedoms

not by virtue of their nature, but by virtue of their (potential) effect on interstate

trade. In SAIL the Court of Justice held that ' [ t ] h e effects of Community law cannot

vary according to the various spheres of national law it may affect'."" From the autonomous

nature of Community law it follows that the freedoms may pervade all areas

of national law, including that of private international law.

Admittedly, the national measures scrutinised so far by the Court under the freedoms

have predominantly concerned measures of a (semi-(public law nature. On the other

hand, though quantitatively speaking the impact of Community law measures on

national private law may have been relatively small, in qualitative terms 'one cannot

deny that they do affect the realm of private ordering, the legal meaning of autonomy

and liability, and the balance between self-responsibility and paternalism'."1 The

relatively small impact of Community law on the private law systems of t he Member

States to date must above all be seen in the light of t he process of market integration

itself. Klauer rightly points out that private law typically does not concern access to

markets but rather the relationship between market actors interse. Therefore obstacles

resulting from private law generally first come into play at a later stage of integration,

at the point where national markets have opened up and access to Member States'

markets has in principle been assured.

There are clear indications that this stage of integration has been reached, and that

a shift from public to private law obstacles is taking place. One of the innovations

brought by the Treaty of Amsterdam was the introduction of Community powers to take measures in the field of private law, including that of private international law,

to the extent that the'proper functioning of the internal market' requires Community

action."' Several measures have already been taken on this basis and an even more

ambitious Action Plan has been drawn u p / ' Similarly, in its proposal for a judicial

network in civil and commercial matters the Commission observes that

[ a ] European Union which secures freedom of movement throughout its territory

and establishes a frontier-free single market, with a substantial expansion in

exchanges between Member States in civil and commercial matters, raises more

and more acutely the question of how members of the general public and firms are

to exercise their rights in a cross-border context. '

Subjecting private law to the freedoms has raised some concern. For instance, Mulbert

suggests that many private law rules would be rendered unlawful as the Court does

not recognise systemic coherence or the historic development of a legal institution

as a 'mandatory requirement of the public interest'."' It may well be the case that the

Court will not accept legal tradition alone as an interest taking precedence oxer the

freedoms. Or, as Klauer puts it, the argument 'das haben wir schon i miner so gemacht'

will not justify obstacles to trade. On the other hand, the Court has not yet had the

chance to attune its case-law, which has developed largely in the context of public law

measures, to private law. In any event, the broad range of measures contemplated by

the Community in the area of private law under the Treaty of Amsterdam is recognition

of the significance of private law in attaining an internal market.