Unharmonised Procedural Rules: Is there a Case for Further Harmonisation at EU Level ?

The basic premise of this chapter is that the EU has already partially harmonised national procedural rules by means of its private international law (hereafter PIL) Regulations. This premise is derived from the proposition that ‘ private international law ’ (which name should usually be understood to be interchangeable with ‘ conflict of laws ’ in this chapter), if considered in broad functional terms, is part of a legal system’s procedural law: 1 it follows that when the EU harmonises aspects of PIL it also thereby harmonises aspects of domestic civil procedure law. This assumed premise leads to a central question concerning whether there is a compelling political or legal case for the EU to engage in further harmonisation of Member State civil procedure concerning the Regulations examined by this study, or even of the subject of EU PIL in general. If either part of the preceding question is answered in the affirmative the next question concerns the possibilities of further harmonisation and necessitates an examination of the related questions of what should be harmonised and how this harmonisation should be effected within the EU’s legislative competence. This chapter addresses these issues in four substantive parts and concludes that logic and evidence both indicate a compelling need for further reform. The novel aspect of this chapter is that its suggested reforms (reform of the procedure by which preliminary references can be referred to the Court of Justice of the European Union (CJEU), and, the creation of an intra-EU forum for the curation and improvement of EU PIL) diverge from the reform suggestions usually encountered and focus on relatively simple and inexpensive methods by which the targeted or general curation of the Regulations that constitute EU PIL and its procedures may be achieved.