3. A COM1TAS EUROPAEA

Neither the freedoms nor Community law in general have generated a basic rule of

Community conflicts of law. This does not mean that Community law only incidentally

affects the autonomy of the Member States in respect of private international law.

On the contrary, Community law pervades the private international law of the Member

States to its core. The internal market has introduced a perspective and goal which

has not traditionally been part of national private international law. This impact is

essentially little else than the conflicts dimension of the process of European integration

and can best be described as the existence of a comitas Enropaear

Within the scope of Community law and in particular the freedoms, the basis for the

(non-)application of a national legal norm is no longer solely to be found in the

statutist 'courtesy' or the Von Savignyan 'volkcrmhtliche (iemeitischaft tier miteniander

verkehrende National',~'' The basis is now also provided by the Kuropean Community

and its autonomous legal order. Furthermore, the (non-1 applicability of a national

legal norm or the allocation of a legal question or relationship to one or the other

national legal system no longer depends exclusively on the (conflicts) interests of t he

Member States or the 'Seat' of the legal relationship. Instead, the private international

law of the Member States is informed by the Community's objective ol marketintegration.""'

In other words, within the scope of Community law the (non-)application

of a legal norm takes place ex comitate Enropaea.

The existence and impact of this comitas Enropaea is clearly visible in respect of the

application ot a Member State's national mandatory rules of law. Member States determine

the international scope of these rules and the application thereof to cross-border

transactions by reference to their purpose and the consequences off non- (application.

Whether the purpose ol a national rule may actually justify its international scope

within the scope of the freedoms must be assessed in light of the mandatory requirements

of the public interests taking precedence over the freedoms as recognised by

Community law. Equally, whether application is indeed necessary and the consequences

of application proportionate to its effects on intra-Community trade is a

question of Community and not national law.

The comitas is not limited to this negative impact and also challenges the often

unilateral character of this p a r t - t h e substantive a p p r o a c h - o f national private international

law. lust as the equality of legal norms of private law lies at the basis of the

mutual inter-changeability in traditional private international law, the principle of

mutual recognition implies that within the scope ot Community law Member States

are not entitled to ignore a sister Member State's norms simply by virtue of their public

or mandatory nature. In addition, Community law generates a duty of mutual assistance

and co-operation in good faith under which Member States may be bound to

accord effect to foreign mandatory rules of law ex comitate Enropaea.

In respect of rules under the abstract approach to private international law, the comitas

Enropaea results in a fundamental shift. Under the traditional Von Savignyan model,

the choice for a national law is 'blind': the applicability of a national law is determined

irrespective of the outcome of the case under that law. However, from a Community

law perspective the effects of the application of a legal norm on tree movement and

the internal market is critical. Moreover, the Von Savignyan basic rule 'daji beijedem

ReclitsverhaltmsdasjenigeRechtsgebtetonfgesnclit werde, welchem dieses Rechtverhdltnis

seiner ei^enthrimliclicn Ntititr ntich an^ehort oder nntcrworfen ist\ can no longer

be maintained within the scope of Community law. A Member State will not be able

to justify a possible restriction of free movement by invoking such an obscure concept

as regulatory interest. In the case of a bin den on intra-Community trade, Member

States will be compelled to articulate the concrete interests which underlie the use of

an objective connecting factor. As a consequence, the denial of (private) law as

I Section Two. Community Law and Cross-Border Insolvency Regulation

border insolvency law in the light of Community law and the internal market. It allows

for an analysis of the lawfulness of the application of a Member State's law of insolvency

to cross-border transactions under the principle of universality, as well as an

examination of a Member State's refusal to accord effect to foreign insolvency law

under the principle of territoriality.

involving state interests and political concerns which lay at the basis of the Von

Savignyan revolution also appears no longer tenable within the scope of Community

law and the comitas Europaea.

CONCLUSION

Com munity law and the private international law of the Member States are intimately

related. Both aim to facilitate cross-border legal relationships and (economic) intercourse

and to this end co-ordinate the application of national rules of law of the

Member States to interstate (economic) activity. However, they operate from fundamentally

different perspectives: whereas national private international law operates

from a perspective of what are ultimately nationally defined interests and concepts

of (conflicts) justice, the perspective of the freedoms i s one of market-integration. T he

difference in perspective means that their outcomes do not necessarily coincide. In

case they are irreconcilable, national private international law will have to be modified

by virtue of the principle of supremacy of Community law.

The freedoms of Community law restrict the conflict of laws autonomy of Member

States. The application of rules of private international law may result in obstacles to

trade. In case they do, Member States are precluded from applying these rules, unless

they are justified as being necessary and proportionate tor the protection of mandatory

requirements of the public interest. This means that the regulatory interest and intensity

of national rules of private international law as well as the regulatory jurisdiction

of Member States to take such measures are all subject to Community law and ultimately

scrutiny by the Court of Justice.

Community law equally instructs Member States in respect of their response to

measures ( o f private international law) by sister Member States. A Member State's

response to a sister Member State's measures is generally governed by a duty to provide

mutual assistance and to co-operate in good faith. Without an interest justifying a

refusal to provide the assistance requested, (the courts of) a Member State are bound

to accord effect to measures of sister Member States. In case of a conflicting exercise

of jurisdiction, the duty of co-operation does not stipulate any particular outcome.

However, even though details are left to the Member States and a duty to begin a

learning process may be all that is practically possible, case-law shows that the Court

of Justice takes co-operation seriously.

In the following Chapter the implications of the comitas Enroptica for cross-border

insolvency regulation will be further analysed. The two elements (freedoms and cooperation

) of the comitas provide a necessary framework to examine national cross