A method of delimiting the field of application of Community private law: a study in private international law.

Summary The delimitation of the scope of application of Community private law is not governed by rules of conflict of laws, whether national or Community, but is a function of the purpose of the rules of substantive law of Community origin ("effet utile") and the objectives of European integration. This delimitation takes an essentially negative form, in the sense that the relevant question for the interpreter is not when these rules apply, but rather when they do not apply. The method thus results in the national court applying its own law implementing a private law directive as lex fori to any dispute that falls within its substantive scope. The result is that the applicability of each transposition law depends on whether the court of a particular Member State of the Community is seized. This result, unsatisfactory perhaps at first sight from a purely theoretical point of view, is not contrary to the transposed directive, because, in any case, it is applied through a transposition law. Above all, it is not contrary to the provisions of the EC Treaty relating to the freedoms of movement, because the application of private law is not likely to impede these freedoms and, therefore, it does not fall within the scope of application of these provisions. On the contrary, the application of the law of the forum qua lex fori has the advantage of simplicity and gives rise to a desirable forum shopping, because it is confined within the limits dictated by the European law of conflict of jurisdictions. It also goes hand in hand with a new understanding of international corporate law as a conflict of authorities rather than a conflict of laws.