Party Autonomy in International Property Law - Peace Palace Library

10. Between Articles 14 and 27 of Rome I
10.3.2. Legislative intent
We know the following from the accessible documents: first, the Commission
had proposed a special rule for third party effects, which was to
apply the law of the assignor’s place; second, long negotiations ensued;
third, in the final stages in the Council, the presidency proposed, as a
compromise, either to follow the Commission proposal or to declare the
law of the assigned claim to be applicable; and fourth, neither proposal
has been made law. 24 There are people, some of whom participated in
the deliberations, who tell us that the decision on that special provision
was to be postponed until the review process. 25 However, there is
no formal decision as to this effect; Article 27, as we have seen, does
not say so, and there is no documentary evidence of such a decision
in Council or Parliament, although majority voting would have been
possible. Therefore, all we can see in the legislative history is that the
Commission made a proposal for a Regulation with a special provision
for third-party effects, and that the Regulation has been eventually enacted,
but without such a provision. To this extent, the proposal of the
Commission to have a special provision on third-party effects appears to
have been rejected without a substitute, thus leaving Article 14 as the
general, unqualified rule.
As mentioned earlier, in European Union law the enacted text must
weigh more heavily than a possibly diverging but not visibly expressed
legislative intent. The inherent weakness of invoking a legislator’s alleged
real intent can be overcome only by official documentary evidence
of such intent. The European Court of Justice has at times been
extremely outspoken in this respect. 26 We have no such evidence here
for an alleged decision of the legislator to carve out from the original
legislative project an important topic to be dealt with only at some later
time, if at all.
24
For details of the process, see van der Grinten, Art. 14 Rome I: A Political Perspective,
in this book (Chapter 7); Sigman / ​Kieninger (note 5) 50-53; Plender / ​
Wilderspin (note 4) 370-373; Garcimartín Alférez (note 5) 246-247.
25
Sigman / ​Kieninger (note 5) 54; Garcimartín Alférez (note 5) 234-235.
26
See cases noted by Arnull (note 11) 619, 620; Weatherill / ​Beaumont (note 11)
189, 190.
Axel Flessner
215
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