2 . 1 . INTRODUCTION

So far the examination has concentrated on the control Community law imposes on

the Member States in taking measures in private international law resulting in an obstacle

to trade. Almost as a matter of course a further question is raised. Is Community

law only of relevance in respect of the application of a Member State's own measures

or does it also influence a Member State's response to foreign measures, more precisely

those of sister Member States, necessary for the protection of mandatory requirements

of the public interest? In other words, what is the status of measures of sister Member

States under Community law?

This question has not yet been directly addressed by the Court in its case-law, but this

is likely to be only a matter of time. After all, the economic freedoms as well as the

interests taking precedence over the freedoms are equally at stake, whether a particular

measure is applied by the Member State from which that measure is emanating or by

a sister Member State. In particular, where the application of a rule of law affects the

rights and obligations of parties to a transaction in the exercise of one of the freedoms,

it is not necessarily the regulating Member State's courts that have (international)

jurisdiction. 1' Consider, for instance, the C iourt's case-law relating to the temporary

posting of workers in the framework of the provision of services. 11 Starting with its

This may be true from the perspective of the freedoms. If o n e Member State already

protects the relevant interest, what reason is there tor other Member States to want

to do the same again but in their own way? The only result can be that the same is done

twice, making it more difficult for traders to operate on the European market as they

h aw to comply with two legal regimes. N'o matter how reasonable this sounds, from

the perspective of private international law the principle of mutual recognition is not

nearlv as 'conservative' as Weiler suggests. " M u t u a l recognition assumes that Member

States in the application of their own rules of mandatory law are bound to take account

of the equivalent norms of the State of origin. This implies that by virtue of the

principle of mutual recognition the laws of Member States ( o f origin) are able to claim

a Union wide validity (though perhaps not applicability), which they may not necessarily

have had under national private international law/"1

However, although it approximates one, the principle of mutual recognition does not

quite amount to a (general) duty to accord effect to sister State measures.1 " On the

one hand, strictly speaking, mutual recognition does not result in the application of

foreign law but results only in the non-applicability of a Member State's own law, although

de facto the (foreign) law of the Member State of origin is left to govern the

legal question at hand.1"': On the other hand, mutual recognition only operates where

a Member State desires to take a measure itself. It does not oblige a Member State to

take into account foreign law in other circumstances nor indeed to take any measure

at all. For instance, in the context of the 'temporary posting' of workers example used

in the introduction to this section, the principle of mutual recognition alone would

not compel (the court of) a Member State ' to take account o f , or accord effect to, the

minimum wage requirement. Mutual recognition first comes into play where a

Member State desires to protect certain interests itself and is then confronted with

protection already offered by measures of the Member State of origin.