Preliminary observations: unilateralism and bilateralism, scope rules and confl ict rules

Private relations reach out beyond the borders of the European Union in manifold ways: Residents of the Union marry partners or adopt children from third States; they enter into multiple transactions in third States, concerning assets located outside the Union or with parties domiciled there; they acquire, bequeath or inherit property located outside the Union or are involved in accidents, infringements of IP rights or other activities occurring in third States which may give rise to liability. Fact situations of this kind will be designated as external cases in the present context. They invariably engender two sorts of questions, depending on the perspective.

First, does EU private law cover the fact situation at issue or is its legal assessment left to the national law of a State which may be a Member State or a third State? This is the main question from the viewpoint of the Union. It is an EU-centred regulatory question driven by the Union’s intention to implement a given policy: How far does the binding force of our laws reach? The focus of EU policies on the establishment of an internal market raises doubts concerning the Union’s external policies. Private parties who are in the centre of private law will rather ask a second question: Which law determines our rights and obligations in such a fact situation? This being a question that may arise ex post in litigation but also ex ante when the parties choose their conduct and decide on their dispositions. What matters from a private perspective is not a given public policy but the private benefit expected from it and, where access to that benefit cannot reasonably be taken for granted, at least the certainty concerning the applicable law, a special form of legal certainty that people are seeking in both internal and external cases.

The two types of questions have resulted in different kinds of legislative and judge-made rules in the law of the Union dealing with cases related to third States. One is EU-centred, the other adopts the private perspective.