Choice of the applicable law and equal treatment in the European Union

Abstract

This thesis seeks to provide a different perspective to the study of the scope and functioning of the principle of equal treatment on grounds of nationality and movement laid down in Article 18 TFEU and in the Treaty free movement provisions. It examines the scope and functioning of the principle of equal treatment in the context of the determination of the law applicable to a cross-border (or inter-State) relationship. In particular, the question this thesis addresses is whether and, if yes, how the principle of equal treatment affects the choice of the law governing cross-border contractual, non-contractual or other civil law relationships in the European Union.

In this respect, it is demonstrated that the principle of equal treatment functions as an additional check on the operation of, on the one hand, the national substantive law applicable pursuant to a national or Union choice-of-law rule or chosen by private parties to a contract and, on the other hand, national and Union choice-of-law rules themselves. The national substantive law governing a cross-border relationship falls within the scope of the principle of equal treatment and is required to comply with it, irrespective of the fact that it is applicable in accordance with a choice-of-law rule or a choice-of-law clause agreed by private parties. Similarly, regardless of their specific nature and objective, national and Union choice-of-law rules also come within the scope of the principle of equal treatment.

However, it is emphasised that the functioning of the principle of equal treatment is not comparable to that of a choice-of-law rule. The requirement that only non-discriminatory rules can be applied in the Union under it does not, even indirectly, determine the applicable law in the sense understood from a choice-of-law perspective. This is because, unlike a choice-of-law rule, the principle of equal treatment does not contain even an implicit reference to a particular national law that always applies in light of it.