1.3.3. Abstract Approach

The analysis is essentially the same for rules of private international law under the abstract

approach, at least to the extent that parties are not allowed freely to choose the

law applicable to their transaction. Rules of private international law will not result

in an obstacle to trade in the sense of the freedoms, as long as parties are free to choose

the applicable law to their transaction. After all, to the extent that parties are able to

determine the applicable law themselves, private international law does not interfere

with their transaction.1 True, the very need for parties to make a choice of law results

in costs in cross-border transactions, which are not encountered in wholly domestic

transactions. However, this burden on interstate transactions is solely due to differences

between the substantive laws of the Member States. The burden does not arise,

nor is it increased, by reason of the rules of private international law. Only when free

choice of law is not available to the parties, a rule of private international law may

result in (or contribute to) an obstacle to trade.

The threshold of party-autonomy may also be inferred from the Court's judgment

in Alsthom Atlantique. The Court held obiter dictum that the application of a French

rule on (the exemption of) contractual liability did not amount to an obstacle to trade

because 'parties to an international contract of sale are generally tree to determine the

law applicable to their contractual relations and can thus avoid being subject to French

law'."1 Conversely, the judgment appears to suggest that if parties had not been able

to avoid French law, the application of the French rule could have resulted in an

obstacle to trade.;"

Where parties are prevented from freely selecting the applicable law to their transaction

an obstacle to interstate trade may be the result. If, for instance, through the use of

objective connecting factors, a law other than the law of t he state ol origin is made applicable,

a provider of goods or services may be prevented or hindered from ottering

a product on the European market under the same conditions as in the Member State

of origin.'"That result would be hard to reconcile with the Court's judgments in cases

like Yves Rocher, GH-INNO-HM or Oosthock where the Court ruled that 'to compel

a producer to adopt (...) schemes which differ trom one Member State to another or

to discontinue a scheme which he considers to be particularly effective may constitute

an obstacle to imports'.'1 A need for traders to adopt a different strategy tor each

Member State and the costs related to such differentiation suffices for the Court to

bring national measures within the scope of the freedoms.

The international law of consumer contracts may provide an e x a m p l e . ' ; The internal

market and the economic freedoms include the offering of goods and sen-ices to, and

entering into contracts with consumers across, the national frontiers of the Member

States. Assume that to determine the applicable law to such international consumer

contracts the consumer's habitual residence as objective connecting factor were

employed. The result would be that the provider would be forced to adapt his or her

product or the conditions under which they are provided to the laws of each of the

fifteen Member States. The product could not be marketed in all Member S t a t e s ' 1 or

the provider would be prevented from formulating and using a single uniform

(marketing) strategy for the European market. In other words, intra-community trade

would be burdened. Moreover, it is not just the producer but also the consumer who

is protected by the freedoms. S/he must be able to obtain goods and services in another

Member State under the same conditions as the consumers resident in that Member

State."' The exercise of this freedom involves the entering into contracts. However,

if the lex contractus were determined by the use of the habitual residence of the

consumer as the objective connecting factor, s/he would not be able to obtain goods

or services under the same conditions. From a consumer point of view the result would

be that free movement would be hindered.