Evidence of an Emergent European Legal Culture: Public Policy Requirements of Procedural Fairness under the Brussels and Lugano Conventions

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Recent case law from the Luxembourg court concerning recognition and enforcement of foreign judgments under the Brussels and Lugano Conventions shows that public policy, traditionally a vector of inward-looking national values even in a European context, is undergoing significant transformation, so as to become the very cornerstone of the edification of common European values. This is particularly so with respect to the fundamental right to procedural fairness, which is taking on unprecedented importance in the various national legal systems. The process of change, in which public policy has been instrumental, has involved the gradual merging of the values of the "two Europes," the seat of human rights and the union of economic interests. The free movement of foreign judgments in the latter area testifies to the disappearance of purely national definitions and standpoints, which give way to common European parameters. From a comparative perspective, one could say that there is evidence here of progressive integration, from the bottom-up, which does not result from authoritarian black-letter unification, but involves internalisation of common values by each of the national legal systems.1


Abundant evidence of the growing importance of European law in a purely quantitative sense can be found in the legal system of any given Member State of the European Union; it is indeed quite obvious that it is no longer possible to envisage any branch of private law without constant reference to European sources, whether they be hard or soft law, international conventions between Member States or secondary Community law, regulations with direct effect or national provisions implementing Community directives. Indeed, although the latter, by far the most profuse in these fields, now frequently define their own scope by reference to a connecting factor with the European Community,2 there are many instances in which harmonised law has in fact entirely absorbed the "common" domestic law applicable, irrespective of any such link.3 Whatever the means, vast areas of what might be termed the "modern" law of obligations, such as consumer protection, insurance contracts, and products liability, as well as an increasingly large part of private international law, now even in the more traditional field of family relations,4 are all affected by the move to harmonise or unify the individual legal systems. It is here that the whole issue of "Europeanisation" becomes extremely sensitive, insofar as one may call into doubt the legitimacy of a deliberate filing down of those cultural differences which are characteristic of the various legal traditions represented within the European Union.5 However, the impact of European law on domestic systems signifies more a real growingtogether of legal systems than deliberate inroads on national practice. For while European law has affected the content of given rules, it is European law's impact on hitherto more entrenched national perspectives or methods of reasoning that is a far surer sign of legal integration. Indeed, harmonisation is not necessarily the result of imposed uniformity; it may also, if certainly more exceptionally, be the effect of a spontaneous, incremental growth towards common perspectives and standpoints.6 In addressing the theme of this symposium, my aim has therefore been to discover signs evidencing the progressive development of a specifically European way of looking at things. Is there a contemporary European legal culture, distinct from pre-existing national traditions? The quest for such evidence avoids any particular reference to the common historical background of European legal systems, however conducive the influence of Roman law and the shared values of Christianity may have been in the shaping of the various national traditions.7 Indeed, this symposium invites us to look less at such cultural similarities as may issue from the heritage of the ius commune, than to new perspectives for legal integration, particularly those induced by the heightened economic and institutional proximity of European states within the past halfcentury. …


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