À propos de l'évolution fonctionnelle du droit des conflits de lois II : une constitution légitime pour la constellation post-nationale

Our title refers to old but ongoing debates on conflict of laws as a legal subdiscipline. Christian Joerges has taken up this debate in his PhD-Thesis of 1971. Building on the so-called « American conflicts-law revolution » led by Brainerd Currie, he criticised the German private international law tradition as founded by Friedrich Carl von Savigny for its adherence to, and preservation of, the premises of classical liberalism and its formalism. This paradigm he argues should be substituted by a new policy-oriented conflicts-law which respected the transformation of the classical models through the democratic social state. Our title furthermore announces a second transformation, namely the need of the discipline to respond to the new challenges of the post-national constellation in general and the European integration project in particular. The essay focuses on this project and explores three conflict constellations of exemplary importance, namely: (1) Tensions between the establishment of internal European market law with its reliance on economic freedoms and national labour law with objectives of social protection. The essay pleads for interest mediation along the model of the (former) posted workers directive and critics the recent labour law jurisprudence of the ECJ. (2) A second type of conflict constellation is generated by the need to organise transnational responses to regulatory concerns in particular in the field of consumer and environmental protection and safety at work. In that respect the essay defends the idea of a « political administration » as it was in principle realised by the comitology system and deplores the recent tendencies of agencification and scientification of regulatory politics. (3) The third challenge is generated by the integration of non-governmental actors in regulatory politics. European standardisation is a case in point. It is submitted that Europe has successfully ensured through hard law, procedural requirements and cooperative supervision that the pertinent governance arrangements « deserve recognition ».