CYIL vol. 14 (2023)

DOMINIKA MORAVCOVÁ CYIL 14 (2023) with companies from outside the EU that are from States bound by the Convention. 86 In the light of the case law of the Court of Justice, it is generally accepted that the rules in a specific convention have the effect of inapplicability of the provisions of the Regulation which deal with the same issue. 87 However, the Convention under analysis cannot be subsumed under Article 71. Although the Convention also identifies the EU Member States as Contracting Parties, from the EU’s point of view only the EU per se is a Contracting Party. This makes the Convention part of the EU acquis and its status cannot be determined based on that article. As was concluded in the previous section the Convention under analysis has a direct effect both in EU law and within the Member States legislation, as a source of the EU acquis it generally takes precedence over an act of secondary EU law. 88 Indeed, a treaty cannot interfere with the autonomy of the Union’s legal system, 89 which it certainly does not in this case, since the most recent Brussels regulation reflects the Convention and has harmonised its provisions. The precedence of the Convention over secondary law means that the provisions of the instrument in question should be interpreted in accordance with the Convention. 90 The relevant provisions of EU law, as well as the national law of the Member States, should therefore be interpreted in accordance with the principle of consistent interpretation in relation to the Convention . 91 However, as was said, although interpretation is not contradictory in itself, the approach to it is based on different grounds, although in both cases it is autonomous. The author thinks that the Convention under examination in the context of the present article fulfils the prerequisites for the grant of direct effect and takes precedence over the Brussels I bis Regulation from the perspective of EU law. In dealing with the sources of private international law analysed, we cannot operate solely on the basis of general precedence, since their interrelation is usually addressed in the text of the two sources per se . The wording of the Convention addresses the issue of its relationship with other legal instruments. Although Member States may not be parties to the Convention but are bound by it based on the REIO approach, they may be referred to as ‘Parties’ within the meaning of Article 30(2) of the Convention. 92 The relationship of the Convention to EU law can be subsumed under Article 26(6), which states that the Convention shall not affect such acts provided that no party is domiciled in a State party to the Convention which is not part of the EU, and likewise does not affect the enforcement and recognition of judgments strictly within EU Member States. 93 For the recognition and enforcement of judgments that are within the scope of both the Convention and the Brussels I bis Regulation, Brussels I bis will have precedence in intra-EU cases. This is apparently due to the preservation of 86 European Commission, 2014. Choice of Court Convention: EU businesses receive a major boost for international trade. Brussels: press release, 2014. [online]. Available at: https://ec.europa.eu/commission/presscorner/detail/ en/IP_14_1110 last accessed on 30 May 2023. 87 Judgment of the Court, 4 September 2014, Nickel & Goeldner Spedition , C-157/13, EU:C:2014:2145. 88 Judgment of the Court of 21 December 2011., Air Transport Association of America a i ., C-366/10, EU:C:2011:864. 89 Judgment of the Court of 3 September 2008., Kadi a Al Barakaat International Foundation/Rada a Komisia , C-402/05 P a C-415/05 P, EU:C:2008:461. 90 Judgment of the Court of 10 September 1996, Commission v Germany , C-61/94, EU:C:1996:313. 91 SIMAN, M. Methods of application of the Aarhus Convention in the case-law of the EU Court of Justice. In: Czech yearbook of public and private international law . Praha: Česká společnost pro mezinárodní právo, 2020. ISBN 978-80-87488-38-6. p. 125. 92 Art. 30(2) of the Choice of Court Convention. 93 Art. 26(6) Ibid.

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