CYIL vol. 14 (2023)

DOMINIKA MORAVCOVÁ CYIL 14 (2023) interrelationship, the effects of the Convention within the EU and to identify the conditions and cases in which the Convention will take precedence and in which, on the other hand, the Brussels I bis Regulation will take precedence in its application. This chapter begins by dealing with the nature of the sources analysed and then proceeds to identify their interrelationship. 2.1 The character of the legal sources analysed The Brussels I bis Regulation is a binding source of EU secondary law, of general application and has a direct effect in all the Member States. 51 It requires uniform application at the EU level and is the source of rights and obligations for all natural and legal persons within the EU. 52 The Brussels I bis Regulation was adopted on the legal basis of Article 81 TFEU, which allows for the harmonisation of private international law rules in the context of judicial cooperation in civil matters. This is an area in which the Union has not been explicitly granted exclusive competence by the founding treaties. The Convention was, in the meaning of the Decision, concluded based on the exclusive competence of the Union, 53 because the doctrine of implied powers, the so-called AETR-type of exclusive jurisdiction, arising from the Court of Justice’s key case law, was involved. 54 Where the Union adopts, to implement a policy arising from the founding treaties, provisions which harmonise the area in question, Member States lose the right to enter into contractual obligations in that area with third-States which are capable of affecting those rules. 55 The author also detects a difference between the sources analysed in their interpretation. What they have in common is the necessity of an autonomous approach to interpretation. The Brussels I bis Regulation must be interpreted in the light of the systematics and teleology of the EU acquis and other methods of interpretation inherent to EU law. Moreover, the interpretative materia from the case law of the Court of Justice, which supplements the individual provisions of the Regulation under analysis, greatly helps us with the practical application. The Convention is an international treaty and this also requires a different approach to interpretation. The interpretation of international treaties is governed both by the regime of the Vienna Convention on the Law of Treaties 56 and by the supplementary rules of interpretation typical for international treaties. The Vienna Convention on the Law of Treaties establishes rules for the interpretation of treaties under Articles 31 to 33. These provisions reflect the attitude of the International Court of Justice, which favours a textual approach where the intention of the parties is expressed directly in the wording of the international treaty. 57 Article 31 contains a general rule. The single number indicates that all the provisions of this article form a compact whole 51 Art. 288 of the Consolidated version of the Treaty on the Functioning of the European Union (OJ C 326, 26.10.2012, pp. 47–390). 52 SIMAN, M., SLAŠŤAN, M. 2012. Právo Európskej únie (inštitucionálny systém a právny poriadok Únie s judikaturou) [The law of the European Union (institutional system and legal order of the Union with jurisprudence)] . Bratislava: Euroiuris, 2012. p. 332. 53 Recital 4 to the Council Decision of 26 February 2009 on the signing on behalf of the European Community of the Convention on Choice of Court Agreements (OJ L 133, 29.5.2009, pp. 1–13). 54 EECKHOUT, P. 2004. External relations of the European union – legal and constitutional foundations. New York: Oxford University Press, 2004. p. 135. 55 Judgment of the Court of 31 March 1971, Commission v Council , C-22/70, EU:C:1971:32. 56 Arts. 31–32 of the Vienna Convention on the Law of Treaties. 57 BROWNLIE, I. Princípy medzinárodného verejného práva [Principles of international public law] . Bratislava: Eurokódex, s.r.o. a Paneurópska vysoká škola, 2013. p. 682.

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