1.5.2. Necessity and Proportionality of Rules of Private International Law under the Abstract Approach

Rules of private international law under the abstract approach must equally comply

with the necessity and proportionality requirement. One should, however, be aware

that the protection offered by a rule of private international law may be two-told. For

instance, a choice of law rule could exclude party-autonomy and provide that the law

applicable to an international consumer contract i s the law of the state where the consumer

has his or her habitual residence. Such a rule would protect the consumer not

only against a choice of law resulting in a lower level of protection in substantive law;

it would also protect the consumer against the risk and costs involved in having to deal

with an unfamiliar legal system. The necessity and proportionality of such a choice

of law rule should be examined along both lines."5 Elaborating the example of consumer

protection further illustrates that Member States' conflicts autonomy is also

being restricted under Community law in respect of the regulatory intensity of their

abstract rules of private international law."

The rule according to which the law of the state of the consumer's habitual residence

is applicable to the contract may result in an obstacle to trade. It might prevent a trader

from ottering his or her product under the same (product or price determining) conditions

on the entire internal market. To the extent that the conflicts rule aims to

protect the consumer against a lower level of protection in substantive law, it would

arguably exceed the level of what is necessary. An unqualified choice tor the law of the

consumer's habitual residence ignores possible measures of the law of the Member

State ol origin, which already provide the consumer with an equivalent or higher degree

of protection. It would arguably suffice to ensure that a choice of law does not

result in a reduction of the level of substantive protection the consumer would be

entitled to under the law which would have been applicable in the absence of a choice

of law. " Allowing parties to make a choice for the trader's law would then be equally

suitable but less burdensome to trade.

This is different to the extent that the conflicts rule aims for the protection of the

consumer against the application of an unfamiliar and difficult to access legal system.

1 n this respect, the principle of mutual recognition is of little effect, as the applicability

of the law of the Member State of origin is precisely what the consumer is to be protected

against.'" Nevertheless, the complete exclusion of party-autonomy would appear

equally to result in an unnecessary burden on interstate trade. The application of the

law of the Member State of the consumer's habitual residence would not be necessary

to the extent the consumer indicates, for instance by actively moving to another

Member State to procure goods or services, s/he does not expect or even desire the

application of that law.1'' To do so notwithstanding would result in an unnecessary

and disproportionate burden. A producer would potentially be bound by the laws of

fifteen Member States, even though s/he never actively marketed the product anywhere

outside the home Member State.

Article 5 Rome Convention (international consumer contracts) remains (largely)

within these limits of Community law."' The protection afforded to consumers is

limited to instances where the producer actively markets products in the Member State

ot the consumer's habitual residence. Moreover, in those cases party-autonomy is not

Although even in this ease an argument could he made that a higher level ol protection is ot little

value as long as the consumer still faces the costs to ascertain that level of p r o t e c t i o n in foreign law,

( 4. Roth, "Dor hinfluls des l.uropaischen (lemeinschaftsrccht a ut'das Internationale i ' r i v a t r e c h f,

Riihcl</.. 1991, 623, 653.

(.t. V i m \\ ilmowsky, "Der Internationale V'crbraiichcn ertrag im !•.( l-ISinnenmarkt ", ZI-uR 1993,

733.741.

'Largely as Article 3 does not allow a consumer to t h e e l v ) reduce the level ol protection afforded

under the law ot the state ot habitual residence. Sec ( i i u n d m a n n , "Das Internationale I't ivatrecht

der 1: ( ommerce Richtlinie - was ist kategorial andeis mi Kollisionsrecht des limnenniarkls und

wariim?", RahchZ. 2003, 246, 279.

Chapter tour. Community Law and Private International Law I

excluded. An effective choice of law can be made unless it results in the loss id the

protection the consumer would have had under the objectively applicable law. Nevertheless,

the example does illustrate that the use ot objective connecting factors may

result in an unnecessary and disproportionate obstacle to trade.