A few observations with attention for boundary conditions, preconditions and caveats

Conference 24 October 2025 T.M.C. Asser Institute, "Adapting private international law in an era of uncertainty"

1. Adapting PIL in an Era of Uncertainty . Uncertain Times, Unequal Burdens : Rethinking Protection for Weaker Parties A few observations with attention for boundary conditions , preconditions and caveats Veerle Van Den Eeckhout Any view expressed is the personal opinion of the author

2. Table of contents Preliminary remarks Taking one step back : the antechamber : activating PIL? ( vulnerable parties - migration law in broad sense) Within PIL – stepping back and forth , stepping broadwise ? 2.A. Torts ( vulnerable parties ) 2.B. Employees ( protection of weak parties in “a world marked by increasing legal complexity ”) 2.C. Consumers ( protection of weak parties , positioned in broader debates ) 3. Concluding (a panoramic , yet selective view – cherry picking / dark sides ?)

3. Preliminary remarks : scepticism /…? Read post on linkedin , essentially saying : “ International law is dead, but ( luckily ) still PIL , which has also to do with “ better world ”” PIl “ alive and kicking ”?- But what , in fact , about PIL !?!? Title this presentation : “ boundary conditions , preconditions and caveats ” thus sceptical , cynical , spoil enthusiasm ?? Pointing out “ conditions ” etc.: not in order to discourage. But acknowledge points of attention: Even if assume we all reasonable persons good will , “ way to hell paved with good intentions ”: self-reflection and points of attention “real” protection , acknowledge in order to obtain real protection and equality

4. Previous work : terms and words such as “ optical effects ” , “ give with one hand what taken with other hand” , … ( hereby relying also on work co-presentators today ) ( exposing dynamics , gaps etc.) Used images such as PIL as mercury ( difficult to get a grip, changing when heated …); double face of PIL (PIL itself evil-doer , at the bottom of the problem – PIL can also “help”); … Add one more image today : hopscotch/ limp jump , steps for “real protection ”, issues jumping and steps

5. First: Taking a step back : the antechamber even before starting ( discussions ) pil: sometimes ( national practices ): just ignore PIL See e.g. ( old , previous ) practice child allowance based on filiation foreigners , denying claims in practice ignoring PIL rules . Acting in an antechamber , twilight zone ? broader issue: “ instrumentalisation ” of PIL ( including by sometimes ignoring it – touching not only children / women , also adults , men: all “ vulnerable ” when comes to migration ) PIL as mercury , interwoven many issues, changing when heated ? - PIL as an instrument of restrictive migration policy? ( national practices ) Ultimately evolution in sense two -track policy (“ liberal ”/” restrictive ”) / rather when “ migration ” going along with dynamics freedom of movement and EU citizenship , non- discrimination - protection by Charter as a minimum? CJEU : interpreting PIL regulations and to certain extent able to control what happens on national level

6. Role , relevance CJEU here? All /different roads lead to Luxembourg , all /different roads start from Luxembourg ? (issue competence Court, but broader dynamics , possible domino-effects etc.?) PIL and migration law : case C-230/21 X v Belgische Staat, réfugiée mineure mariée ( married minor refugee ): “marriage” obstacle family reunification ? “marriage” - relevance PIL ? Interesting points of attention opinion - glimpse some future cases ? Note , Judgment : emphasis Charter and objective directive facilitate family reunification regarding ( lack of) relevance marriage. Possibly in future point of attention regarding objectives future migration legislation and PIL : Possible attention future “ teleological interpretation ” Court, as far as objectives legislation restrictive and effects on PIL – if so , - “ instrumentalisation ”? - would be legitimate ? / possibly more openly instrumentalisation PIL national level Relevance in any case Charter Relevance CJEU future about relevance PIL ( activate or not PIL, which rules PIL) “ überhaupt” PIL as well as how . HOW PIL itself : cfr . Hereafter , within PIL ( once activated ) – subsequent steps/…?

7. Step into PIL : Torts (“CSR” - “ vulnerable ” parties – limited to Brussels I bis – Rome II) Applicable law Rome II, eye catching article 7 , (even if objective not as such to protect victims environmental pollution cfr . Preamble recital nr. 25, i.a . principle “ polluter pays ”) – unilateral choice for victim But is exception to general rule article 4 Rome II – unfair for victim ? Rome II: Double face when looking at rules applicable law and overriding mandatory rules (“ evil-doer ” but can “ also help” vulnerable party) as far as evil-doer , another instrument of power in hands already powerful party/…? Cfr . Eapil discussion Palombo Who is Benefiting from the ‘Neutrality’ of Private International Law? – EAPIL – “ neutrality ” in PIL/” protection victims ” in PIL: self - reflection , introspective : mark time, pause

8. Also point of attention: – jurisdiction ( interaction jurisdiction – applicable law ) Jurisdiction as a precondition ( hinge access to justice , but sometimes hurdle ) In any case: jurisdiction relevant! interaction jurisdiction – applicable law : here: sometimes “ desired ” applicable law but no jurisdiction , not prerequisite ( also kind of antechamber : hurdles to take, kind of missing step ) – argue (change) legislation and /or case- law (“ effet utile ”, “efficiency” article 7/ applicable law Rome II, real “access to justice ”)? hereafter : almost opposite , other way around , jurisdiction but not “ desired ” applicable law Missing step jurisdiction ?

9. Employees (“ weak party”) Jurisdiction : see e.g. CJEU Ryanair ( Nogueira ) C-168/16, Brussels I, concept “ the place where the employee habitually carries out his work ” Judgment nr. 62 “… prevent …. circumvention strategies ” but applicable law ? Applicable law ? Rome 1, Habitual work place , but attention escape clause (more closely connected law ) See Schlecker C-64/12 “ escape-clause not automatically resulting in the application , in all cases, of the law most favourable to the worker ” - “ venom in the tail ” ? in the name of protection : protection by proximity ( recently though opinion Norkus in pending case Locatrans C-485/24: nr. 50: “In all cases, national courts must take into account the principle of proximity and the protection of workers.”) “ Venom in the tail ” normally applicable law ? : ( Cfr . Dutch Pilot case, Turistik - Dutch Supreme Court 29 May 2020 – preview) pending case Hortis (C-768/24) (escape-clause and choice of law ) ? Pending now also CJEU issue Schlecker in international transport Van Den Bosch Transport C-575/25 (Dutch case) : escape-clause and Schlecker factors in international transport?

10. Employees – ( sometimes ) legal complexity Schlecker regarding escape-clause itself : rather simple ( no issues fundamental freedoms , no choice of law , no posting … ) When posting / fundamental freedoms : cfr . Presentation this conference “a world marked by increasing legal complexity ” Seems as: protection of employees by PIL lifted up by ally fundamental freedom movement employees But attention fundamental freedom services ; posting directive as ( only ) a minimum protection ? ( recall : case law Viking and Laval etc., and debates on this case law presuppositions (analyses of) case law Viking Laval etc. 2007 and 2008 ( law of sending country on the basis of temporary working another country/ place of engagement) - need scholars emphasise all possibilities Rome I)

11. Employees – future ? So Currently , applicable law CJEU pending cases Hortis C-768/24, Locatrans C-485/24 (opinion Norkus ), Dutch case Van Den Bosch Transport C-575/25 In any case, PIL regulations principles : “ weak party”, “ protection ” , and important article 23 Brussel 1 bis: protection employee in sense not deprive oneself ( paternalistic in sense cannot deprive rights ) And note CJEU case law attention issues possible manipulation by strong parties ( cfr . supra CJEU Nogueira ), Note , regarding escape clause and “ manipulation ” by employer : Escape clause against manipulation ( see case Voogsgeerd C-384/10, opinion nr. 70 and following ), but attention escape clause itself ? ( see “Over open eindes en nauwere banden: een nieuw hoofdstuk in de Van den Bosch/ Silo-Tank-saga” Aukje van Hoek and Fieke van Overbeeke”, quoting Schlecker opinion nr. 68: “However, always with a view to providing adequate protection to the party regarded as economically and socially weaker, it is appropriate to examine whether the connection to the social protection schemes was made by mutual agreement of the parties or whether it was imposed on the employee.” )? seemingly some issues not completely crystallized yet (issues flexibility, …) cfr . other issues such as, possibly : e.g. issues overriding mandatory rules ( ally “ overriding mandatory rules ”?) … ( amidst also more general issues and debates shopping/ fraud etc.) “ manipulation ”/ imposition by strong parties : cfr . also hereafter consumers , looking in broader way

12. Consumers : “indirect choice ” by strong party consumer : cases protection in Brussels 1 bis/Rome 1, but hereafter : some particular elements / looking broader not only regarding protecting against forum choice / law choice : When about manipulation /”indirect” choice : may look even broader , in sense ( unilateral ) choice strong party between several regimes with divergent protection consumer , option for plaintiff which regime will be used see between Brussels 1 bis – second generation regulations Attention, moreover , sometimes presuppositions - Less protection in second generation regulations : quick procedures, presupposition European Small Claims Regulation who is plaintiff / defendant – boomerang when thought consumer plaintiff but in fact consumer defendant

13. As far as protection : protection by whom , in PIL : cfr . Protection judge on his own motion consumers and PIL ? interesting ( cfr . supra issue choice for plaintiff between several regimes against “ consumer ”): see e.g. Bondora C-453/18 and C-494/18 Cfr . , regarding checking what at what stage in PIL ( and applicable regime) : Issues recent case law CJEU who may / should check what (“ general ” e.g. H limited C-568/20, pending C-512/25; recently regarding consumers e.g. C-626/25 article 15 and 35, paragraphe 2 Brussels 1) = still “PIL”. But: in broader context, e.g.:

14. But so , also broader debates , outside PIL : Protection against whom or against what / by whom /at what cost /……. : broader discussions e.g. consumer and digital platforms Überhaupt protection consumer ? ( e.g. discussions consumer protection and sustainability / other interests – sometimes going along , in line with each other , sometimes not ), discussions protection against whom /” protect ”, “ rights ” also other party e.g. in context digital platforms ? protection by whom : judge /person himself ?; to what extent requirement some initiative /action/ alertness consumer himself , “ apathic ” consumer ? “ passive / active ” consumer cfr . Compass Banca C-646/22 regarding Directive Unfair Practices average consumer , level of alertness /action needed that might be expected from consumer in context Directive Unfair Practices consumers – in broader context/ debates and ongoing dynamics

15. Kind of risk/ danger when looking broader discussions , debates ? In PIL (“ acquis ”, safeguard ?) PIL: consumer as “ weak party”, should in principle be “ passive ” (in sense PIL) , but once in category “ passive consumer ” (in sense PIL), no further discussion in principle , Protection “ from themselves ” ( cannot deprive oneself , can still claim rights ) ( can obtain more if choice of law , see Gruber , seemingly preferential approach), Protection own motion judge particularly silent forum choice ( voluntary appearance ), … Ongoing “ broader ” discussions / other contexts application EU law own motion or not , if and to what extent initiative required from persons involved , ultimately protection consumer as such …: possibilities when taking steps “ broadwise ” , possibly benefit but also kind of risk/ danger ? See e.g. dynamics Salvoni C-347/18 (case Brussels 1, ( although not “ succeeded ” “ transposition ” case law directive unfair terms consumer law regarding application “ex officio”, possibility question from considerations in judgment e.g. aspects second generation regulations ?) PIL: not necessarily follow general evolutions , position itself , be aware own system … ( and own reasonings etc.)

16. Concluding – space , universum; CJEU … Presentation: not exhaustive , selective , but while indicating points of attention, in a way always broadened , cfr . Space ( space of freedom , security and justice ) judicial cooperation in civil matters ( with Brussels 1 bis solar system), but even broader , other universes , In those universes : PIL positioning itself ( including within PIL case law CJEU ( between several instruments PIL) and also in relation to case law / dynamics outside PIL ) Doing so , beware/attention PIL: Keeping own nature (e.g. in relation to / interaction with ( restrictive ) migration law ) At the same time sometimes need reflect , introspective (“ own nature” fair? See e.g. discussions torts ) – attention sometimes presuppositions e.g. who will be plaintiff / defendant etc., see variety of cases and configurations …

17. sometimes issues ( presentation : did some cherry picking even if some rather “ dark sides” ) : “ protection ” as such fair? Sometimes issues in interaction e.g. jurisdiction / applicable law or between several instruments / between PIL and other principles e.g. freedom of services ( sometimes , thus , “empty shell”) Sometimes “ protection ”/… worth on itself , even if lacking other steps, at least safeguard Sometimes at least starting point “ protection weak parties ”, subsequently “ effet utile ”, access justice … Domino-effects ; whereas no “full” effect/ obstacles : may point out, argue , go forward Sometimes : hopscotching even though sometimes jumping over steps? With allies : In way forward/ safeguard : sometimes useful search for allies (Charter, freedom of movement workers , consistency with dynamics freedom movement citizens … “access to justice ”)

18. In a more general way: In any case Anno 2025 : acknowledged PIL has ( ways ) to protect weak parties ; but PIL itself not always ( really ) “ neutral ”. As far as acknowledged : Now new life , ( possibility / obligation ) “ raise from ashes ” , “ leave from its cocoon ” ( which may be sometimes scaring / challenging / risky ): obtain / safeguard real neutrality , assure no window -dressing/ optical effects at ( very ) least not instrument of power in hands of already powerful party

19. EXTENDED VERSION

20. Adapting PIL in an Era of Uncertainty . A few observations with attention for boundary conditions , preconditions and caveats Veerle Van Den Eeckhout Any view expressed is the personal opinion of the author

21. Table of contents Preliminary remarks Taking one step back : the antechamber : activating PIL? ( vulnerable parties - migration law in broad sense) Within PIL – stepping back and forth , stepping broadwise ? 2.A. Torts ( vulnerable parties ) ( boundary conditions , preconditions : skipping steps within PIL? Introspection : mark time?) 2.B. Employees ( protection of weak parties in “a world marked by increasing legal complexity ” - caveats ) – stepping forth within PIL? 2.C. Consumers ( protection of weak parties , positioned in broader debates – taking steps broadwise ?) 3. Concluding (a panoramic , yet selective view – cherry picking / dark sides ?)

22. Preliminary remarks : scepticism /…? Some months ago , read post on linkedin , essentially saying : “ International law is dead, but ( luckily ) still PIL , which has also to do with safeguarding principles justice etc., “ better world ”” – “PIL alive and kicking ”? Today : PIL. But what , in fact , about PIL !?!? PIL indeed at least has something to do with protection weak parties , unequality (employees, consumers , …) – enthusiasm , elaborate ? But … title this presentation : this presentation rather about “ boundary conditions , preconditions and caveats ”: thus sceptical , cynical , spoil enthusiasm ?? Pointing out “ conditions ” etc.: not in order to discourage. But acknowledge points of attention in order to go forward . Even if assume we all reasonable persons good will , “way to hell paved with good intentions ” Self-reflection and points of attention “real” protection , acknowledge in order to obtain real protection and equality /at least not PIL as another instrument of power in hands of already powerful party

23. Previous work : terms and words such as “ Orwellian language , mind your step, mind the gap, empty shell, window -dressing, bokeh-effects , optical effects , PIL as achilles heel of protection of employees, hurdles , PIL as another instrument or tool of power in hands of already powerful party, give with one hand what taken with other hand , dark colours and shadows , collaboration , PIL as a hinge , PIL mangled , cakewalk, conductor” … in several areas , regarding weak parties , but also what I called “ vulnerable ” parties ( cfr . Slideshare and ssrn , hereby relying also on work co-presentators today ) ( some meanwhile rather historical , but showing and exposing dynamics , gaps etc.)

24. Used images such as PIL as mercury ( difficult to get a grip, changing when heated …); double face of PIL (PIL itself evil-doer , at the bottom of the problem – PIL can also “help”); … Add one more image today : hopscotch/ limp jump , steps for “real protection ”, Issues jumping and steps

25. First: Taking a step back : the antechamber ( twilight zone?) even before starting ( discussions ) pil: Sometimes ( national practices ): just ignore PIL, not “ activating ” PIL . See e.g. ( old , previous ) practice child allowance based on filiation foreigners , denying claims in practice ignoring PIL rules regarding recognition of filiation ( migration in broad sense: including e.g. also social security claims of foreigners ) ( see on this practice here (2001) and here (2006); see also on an old practice H.U. Jessurun D’Oliveira, “Kromme rectificaties”, Ars Aequi 1093, p. 663-673) Acting in an antechamber , twilight zone ? Thus already canalizing PIL in a certain (here: “ negative ”) way for people involved by decision to activate PIL or not ? ( regarding the issue of “ activating ” or not PIL- rules , see also at the General Court, in context arbitration clauses 272 TFEU, interesting T-649/20 e.a., points 41 and following regarding relevance (at all ) and activating or not PIL- rules within PIL ( and if so , which PIL- rules should be activated ), see e.g. CJEU 6 october 1067, C-12/76, Industrie Tessili Italiana Como, EU:C:1976:133 - discussed “in full daylight ”, see e.g. Register of Commission Documents - COM(2025)268 , and recently CJEU 27 February 2025, C-537/23, Società Italiana Lastre , EU:C:2025:120, point 60 as discussed by scholars , see e.g. here . broader issue: “ instrumentalisation ” of PIL ( including by sometimes ignoring it – touching not only children / women , also adults , men: all “ vulnerable ” when comes to migration ) (( see also in context comments on case- law Viking etc., “ Internationaal arbeidsrecht gemangeld ”, ssrn , extended version , especially p. 28 and following , including also references to i.a . issues regarding situations of multiple nationality )

26. “Migration”: Known ( and studied ): “ freedom of movement ” and PIL , “ serious inconvenience ”, “ obstacle ”, case law CJEU ( law of names etc.), but might look broader : PIL and freedom of movement /“ migration law ” – also connected with PIL-issues. PIL as mercury , interwoven many issues, changing when heated ? - PIL as an instrument of restrictive migration policy? ( national practices ) Ultimately double track (“ Liberal ”/ restrictive )? Also touching e.g. issues preliminary question “independent”/” dependent ” connection ? scholars e.g. F. Villata on Preliminary question , Rivista di diritto internazionale privato e processuale (RDIPP) No 4/2024: Abstracts – Conflict of Laws not obstacle free movement persons – quid migration law ? Attention if ultimately “double track” in PIL) Evolution in sense two -track policy/ rather when “ migration ” going along with dynamics freedom of movement and EU citizenship , non- discrimination - protection by Charter as a minimum? CJEU: interpreting PIL regulations and to certain extent able to control what happens on national level; sometimes PIL-issues “ interwoven ”

27. Role , relevance CJEU here? CJEU: All /different roads lead to Luxembourg , all /different roads start from Luxembourg ? (issue competence Court, but broader dynamics , possible domino-effects , arguments reversal discrimination etc.?) cfr . E.g. ( eapil J. Meeusen Functional Recognition of Same-sex Parenthood for the Benefit of Mobile Union Citizens – Brief Comments on the CJEU’s Pancharevo Judgment – EAPIL ; F. Sartori on eapil , …) PIL and migration law : see case C-230/21 X v Belgische Staat, réfugiée mineure mariée ( married minor refugee ): “marriage” minor refugee obstacle to family reunification with mother ? - relevance PIL ? In this case PIL no relevance regarding marriage, as Court said no relevance marriage at all ; but points of attention opinion AG in case Court would decide that marriage relevance , see opinion nr. 53 and following (nr. 55: “in compliance with the objectives pursued by that directive , namely promoting family reunification ”) – glimpse some future cases ? Opinion: including indication national practices systematically (but rather contradictory ) denying claims foreigners “( paradoxical ” nr. 58-60). ( and cfr . Also already supra regarding activating / not activating PIL, including within PIL – including , then , the issue, which PIL- rules to be activateed ) Note , p oint of attention: Judgment : emphasis Charter and objective directive facilitate family reunification ( judgment nr. 43), regarding ( lack of) relevance “marriage”; see also C-136/19 e.a. nr. 30 and 31). Possibly in future point of attention regarding objectives future migration legislation and PIL :

28. Possible attention future “ teleological interpretation ” Court, as far as objectives legislation restrictive and effects on PIL: if objectives migration policy rules restrictive ( if so – instrumentalisation ? – would it be legitimate ? See on this internationaal privaatrecht en migratierecht ) / possibly more and more openly instrumentalisation PIL national level Relevance in any case Charter At this moment – ultimately also relevant international family law and migration law - : interesting ongoing issues what comes from abroad and what between European judges (recent cases Brussels 1 bis H Limited (C-568/20), who checks what at what stage (e.g. C-512/25) …) – ( cfr . civil status from outside EU, afterwards circulation within EU) Relevance CJEU future about relevance PIL ( activate or not PIL, which rules PIL) as such (überhaupt PIL) as well as how HOW PIL itself : cfr . Hereafter , within PIL ( once activated ) – subsequent steps/…?

29. Step into PIL : Torts (“Corporate Social Responsibility ” “ vulnerable ” parties – limited to Brussels I bis – Rome II) Applicable law Rome II, eye catching article 7 , (even if objective not as such to protect victims environmental pollution cfr . Preamble recital nr. 25, i.a . principle “ polluter pays ”) – not acknowledged weak as such , but “ vulnerable ” – unilateral choice for victim But is exception to general rule article 4 Rome II – unfair for victim ? Rome II: Double face when looking at rules applicable law and overriding mandatory rules (“ evil-doer ” but can also “help” vulnerable party) Double face, as far as evil-doer : another instrument of power in hands already powerful party/…? Cfr . Eapil discussion Palombo Who is Benefiting from the ‘Neutrality’ of Private International Law? – EAPIL – “ neutrality ” in PIL/” protection victims ” in PIL: self - reflection , introspective : mark time, pause

30. Also Point of attention: – jurisdiction ( interaction jurisdiction – applicable law ) Jurisdiction as a precondition ( hinge access to justice , but sometimes hurdle ) (issues lis pendens as disguised forum non conveniens , see e.g. previously already Van Calster (forum non conveniens arosen from its ashes ?), possibilities manipulation for strond party? ) ( Cfr . More generally effects ( possibly negative / limiting for vulnerable party when procedure in certain country, also e.g. regarding overriding mandatory rules ) In any case: jurisdiction relevant! interaction jurisdiction – applicable law : here: sometimes “ desired ” applicable law but no jurisdiction , not prerequisite ( also kind of antechamber : hurdles to take, kind of missing step ) – argue (change) legislation and /or case- law (“ effet utile ”, “efficiency” article 7/ applicable law Rome II – real “access to justice ”)? ( cfr . Openrecht “Vrijheid en bescherming van kwetsbare personen in het internationaal privaatrecht) hereafter : almost opposite , other way around , jurisdiction but not “ desired ” applicable law Missing step jurisdiction ?

31. Employees (“ weak party”) Jurisdiction : see e.g. CJEU Ryanair ( Nogueira ) C-168/16, Brussels I, concept “ the place where the employee habitually carries out his work ” Judgment nr. 62 “ That circumtantial method makes it possible not only to reflect the true nature of legal relationships , in that it must take into account of all the factors which characterise the activity of the employee (…), but also to “ prevent a concept such as that of “ place where or from where the employee habitually performs his work ” from being exploited or contributing to the achievement of circumvention strategies ” ( cfr . Some papers/ presentations scholars discussing this case: “PIL-” antidote ” against liberalisation ”) ( protect against manipulation : cfr . Infra, applicable law ) = jurisdiction : value as such , access to justice , close to home – but applicable law ? Applicable law ? Rome 1, Habitual work place , but attention escape clause (more closely connected law ) See e.g. Schlecker C-64/12 escape-clause, even if not the law which is substantively most favourable for employee - escape-clause not automatically resulting in the application , in all cases, of the law most favourable to the worker - “ venom in the tail ” ? (issues: obligation or not , see points 36-37 and dictum; possibly even more “ flexible ” than when not about protection weak party, see points 57 and following ? See comments on Schlecker, available on ssrn ), in the name of protection : “ Orwellian language ” (as far as saying “ protecting ” but not necessarily favourable in a substantive way” – words “ Orwellian language ”: see , in another context, AG in C-815/18)/ optical effects ? – protection by proximity ( recently though opinion Norkus in pending case Locatrans C-485/24: nr. 50: “In all cases, national courts must take into account the principle of proximity and the protection of workers.”) even if seemingly preferential approach ( regarding mandatory rules ) once decided which applicable law if choice of law ( see Gruber C-152/20 and C-218/20 and Jenkinson C-46/22 P – interesting especially nrs . 145-146 and 159-161), in relation to chosen law

32. “ Venom in the tail ” normally applicable law ? : Cfr . Dutch Pilot case, Turistik - Dutch Supreme Court 29 May 2020 ( see slideshare, “ some recent “Dutch” cases”) – preview case ( similar configuration – although Turistik maybe rather issue about motivation , argumentation ) pending case Hortis ? (C-768/24) – escape clause (issue what asked for exactly ? In any case seems no discussion habitual work place , no question regarding overriding mandatory rules ; situation of choice of law , law of habitual work place more favorable employee; no question regarding comparison mandatory rules law of choice / mandatory rules normally applicable law ) – situation of choice of law , law of place where habitually working more favourable , issues law of choice of law more connected ( application escape-clause), mandatory rules law where habitually working more protecting 1. Must the concluding part of Article 6 of the Rome Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, be interpreted as meaning that, where the parties choose the law governing an employment contract, the national court must, pursuant to the concluding part of that provision, disregard the mandatory rules, affording greater protection than those of the law chosen by the parties, of the law which the employee seeks to have applied and which would be applicable in the absence of a choice in accordance with Article 6(2) of that convention where it appears from the circumstances as a whole that the contract is more closely connected with the country whose law has been chosen by the parties to govern the employment contract? 2. If so, is the national court required to take into account the closer connections resulting, in the performance of the employment contract, from the parties’ choice of the applicable law, or must that court disregard them when determining whether the mandatory rules of the law of another country sought by the employee are applicable pursuant to Article 6(2) of the Rome Convention? Pending now also CJEU issue Schlecker in international transport Van Den Bosch Transport C-575/25 (Dutch case) : escape-clause and Schlecker factors in international transport? Thus pending ( applicable law ): Van Den Bosch Transport C-575/25, Hortis C-768/24, Locatrans C-485/24

33. Employees – ( sometimes ) legal complexity Schlecker regarding escape-clause itself : rather simple ( no fundamental freedoms at stake / invoked , no choice of law , no posting … ) When posting /European fundamental freedoms : “ legal complexity ” cfr . Presentation this conference “a world marked by increasing legal complexity ” Seems as: protection of employees by PIL lifted up by ally fundamental freedom movement employees But attention fundamental freedom services ; posting directive as ( only ) a minimum protection ? At the time, recall : case law Viking and Laval etc., and debates on this case law presuppositions (analyses of) case law Viking Laval etc. 2007 and 2008 ( law of sending country on the basis of temporary working another country/ place of engagement), need scholars emphasise all possibilities Rome I and effects particularly freedom of services – window dressing rules Rome I? ( see ssrn , “Internationaal arbeidsrecht gemangeld”) When looking at PIL itself and protection employee: PIL rules double face? PIL itself evil-doer protection of employees (e.g. rule about temporarily working abroad if usually working in country low protection ) / helps e.g. with rules of immediate application ( overriding mandatory rules ), Posting directive – also Posting directive in this perspective double face (“ helps ”, but also “mind your step, mind the gap/… “): Cfr . Previously warnings Posting directive ( interactions between rules / dynamics /steps): mind the gap – mind your step Cfr . No obligation apply posting directive home ( sending ) country ( i.a . Grusic ) – possibilities through overriding mandatory rules (but issues “ foreign ”)? (/ applicable law ) – issues sociological and legal obstacles , access to justice Cfr . Previously “mind your step”: if attempt arguing habitual working place in receiving (host) country with high protection , but on basis of escape clause law sending country low protection , and even not protection Posting directive ? – Gap?

34. Employees – future ? Currently , applicable law CJEU pending cases Hortis C-768/24, Locatrans C-485/24 (opinion Norkus ), Dutch case Van Den Bosch Transport C-575/25 (Dutch case before CJEU; and several national Dutch judgments , cases) In any case, PIL regulations principles : “ weak party”, “ protection ” and important article 23 Brussel 1 bis: protection employee in sense not deprive oneself ( paternalistic in sense cannot deprive rights ) cfr . consumers ( where ( though ) also cases like Diamond Resorts Europe C-632/21, Rome 1 (“ exhaustive ”: “in view of the mandatory and ex haustive nature of that same Article 6(2), it is not possible to derogate from that provision for the benefit of legislation allegedly more favourable to the consumer.” – this judgment possibly relevant for pending case Hortis ? )) ( cfr . also Club La Costa C-821/21) And note CJEU case law attention issues possible manipulation by strong parties ( cfr . supra CJEU Nogueira ), Note , regarding escape clause and “ manipulation ” by employer : Escape clause against manipulation ( Voogsgeerd C-384/10 opinion AG – warning possibility abuse place of engagement by employer , indicating meanwhile possible use escape-clause to avoid this manipulation , points 70 and following ; cfr . Judgment point 51), but escape clause itself ? ( see “Over open eindes en nauwere banden: een nieuw hoofdstuk in de Van den Bosch/ Silo-Tank-saga” Aukje van Hoek and Fieke van Overbeeke”, quoting Schlecker opinion nr. 68: “However, always with a view to providing adequate protection to the party regarded as economically and socially weaker, it is appropriate to examine whether the connection to the social protection schemes was made by mutual agreement of the parties or whether it was imposed on the employee.” )?

35. seemingly some issues not completely crystallized yet (issues flexibility, …;) cfr . other issues ( see ssrn , “Enkele aantekeningen naar aanleiding van Hoge Raad 29 mei 2020”) such as, possibly : issues overriding mandatory rules ( ally “ overriding mandatory rules ”? But not necessarily , as to substance , in favour of employees? Plus issues origin overriding mandatory rules when procedure in a particular member state), interaction with European fundamental freedoms , posting directive “ connection ” etc.) ( amidst also more general issues and debates shopping/ fraud etc.) “ manipulation ”/ imposition by strong parties : cfr . also hereafter consumers , also looking in broader way

36. Consumers : “indirect choice ” by strong party consumer : cases protection in Brussels 1 bis/Rome 1, but hereafter : some particular elements / looking broader not only regarding protecting against forum choice / law choice : When about manipulation /”indirect” choice : may look even broader , in sense ( unilateral ) choice strong party between several regimes with divergent protection : protection consumer in various regimes, option for plaintiff which regime will be used see Issue choice strong party between regimes ( Brussels 1 bis – second generation regulations , sometimes with less protection weak party – issues checks, remedies, … ) ( cfr . Employer possibility opting between Brussels 1 bis and European Enforcement Order Regulation ( less protection employee), cfr . e.g. observations Grusic ) Attention, moreover , sometimes presuppositions - Less protection in second generation regulations : quick procedures, presupposition European Small Claims Regulation who is plaintiff / defendant ( cfr . e.g. objective “ “to improve access to justice in low value cross-border disputes for consumers and SMEs”) – boomerang when thought consumer plaintiff but in fact consumer defendant

37. consumers – in broader context/ debates and ongoing dynamics As far as protection : protection by whom , in PIL : cfr . Protection judge on his own motion consumers and PIL, ? Interesting ( cfr . Supra issue choice for plaintiff between several regimes against “ consumer ”): Bondora C-453/18 and C-494/18 regarding European Order for Payment Regulation , check by judge (on “ own motion”, protection consumer ) – “…. allowing a ‘court’, within the meaning of that regulation, seised in the context of a European order for payment procedure, to request from the creditor additional information relating to the terms of the agreement relied on in support of the claim at issue, in order to carry out an ex officio review of the possible unfairness of those terms and, consequently, that they preclude national legislation which declares the additional documents provided for that purpose to be inadmissible”) ( with considerations about not allowing circumvent ( not undermine ) requirements flowing from directive 93/13 and article 38 of the Charter , see judgment nr. 51 Cfr ., regarding checking what at what stage in PIL ( and applicable regime) : Issues recent case law CJEU who may / should check what (“ general ” e.g. H limited C-568/20, pending C-512/25: “ Are Articles 45, 46 and 53 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to be interpreted as meaning that, in cases concerning the enforcement of a judgment given in a different Member State, the body responsible for enforcement in the Member State addressed must assume, without performing an independent examination, that the judgment falls within the material scope stipulated in Article 1 of that regulation, simply by virtue of the certificate issued by the court of origin pursuant to Article 53 or that regulation?” recently regarding consumers e.g. Landsbanki Luxembourg C-626/25 article 15 and 35, paragraphe 2 Brussels 1: 3o) L’article 35, paragraphe 2, du règlement (CE) n° 44/2001 du Conseil du 22 décembre 2000 concernant la compétence judiciaire, la reconnaissance et l’exécution des décisions en matière civile et commerciale doit-il être interprété en ce sens que, lorsqu’une partie se prévaut, devant la juridiction d’un État membre, de sa qualité de consommateur pour revendiquer la compétence des juridictions de son domicile, la circonstance que cette juridiction n’a pas constaté les faits permettant d’apprécier si les conditions d’application de l’article 15 du même règlement étaient réunies, a pour effet de priver les juridictions de l’État membre requis du droit de rechercher, au regard de l’ensemble des circonstances pertinentes, si les règles de compétence protectrices du consommateur étaient applicables et ont été respectées ? = still PIL. But:

38. But also broader debates , outside PIL : Protection against whom or against what / by whom /at what cost /……. : broader discussions e.g. consumer and digital platforms Überhaupt protection consumer ? Cfr . Broader discussions , ultimately put into question protection consumers / some consumers (standard)/ against whom /…? ( e.g. discussions consumer protection and sustainability / other interests – sometimes going along , in line with each other , sometimes not ), discussions protection against whom /” protect ”, “ rights also other party e.g. in context digital platforms? protection by whom : judge /person himself ?; to what extent requirement some initiative /action/ alertness consumer himself , “ apathic ” consumer ? “ passive / active ” consumer cfr . Compass Banca C-646/22 regarding Directive Unfair Practices average consumer , level of alertness /action needed that might be expected from consumer in context Directive Unfair Practices ( compare PIL Brussels 1 bis. Compare regarding second generation regulation e.g. Thomas Cook C-245/14 ( not particularly regarding consumers ), no mercy if no action undertaken by defendant in order to protect his rights ) consumers – in broader context/ debates and ongoing dynamics

39. consumers When looking broader debates : kind of risk/ danger in broader discussions , debates : in PIL (“ acquis ”, safeguard ?) PIL: consumer as “ weak party”, should in principle be “ passive ” (in sense PIL), but once in category “ passive consumer ” (in sense PIL), no further discussion in principle Protection “ from themselves ” ( cannot deprive oneself , can still claim rights ) ( can obtain more if choice of law , see Gruber , seemingly preferential approach) Protection own motion judge particularly silent forum choice ( voluntary appearance ) ( afterwards action refusal grounds recognition , at least Brussels 1 bis) Ongoing “ broader ” discussions / other contexts application EU law own motion or not , if and to what extent initiative required from persons involved , ultimately protection consumer as such …: possibilities when taking steps “ broadwise ” , possibly benefit but also kind of risk/ danger ? See e.g. dynamics Salvoni C-347/18 (case Brussels 1, no check in this context protection consumer jurisdiction rules by judge on own motion at particular stage ( issuing certificate ), consideration about possibilities consumer himself at later stage: afterwards still refusal ground ; but what regarding second generation regulations where no such possibilities for consumer at later stage, at least not similar ?), ( although not “ succeeded ” “ transposition ” case law directive unfair terms consumer law regarding application “ex officio”, possibility question from considerations in judgment e.g. aspects second generation regulations ) PIL: not necessarily follow general evolutions , position itself , be aware own system … ( and own dynamics / reasonings etc.)

40. Concluding – space , universum; CJEU … Presentation: not exhaustive , selective ( some cherry picking even if some dark sides), but while indicating points of attention, in a way always broadened , cfr . Space ( space of freedom , security and justice ) judicial cooperation in civil matters ( with Brussels 1 bis solar system), but even broader , other universes , cfr . migration law e.g. family reunification cfr . PIL as mercury , can be interwoven many issues and can also show up e.g. before General Court cfr . Case Jenkinson employees, elaborate in several contexts , one context influencing other contexts In those universes : PIL positioning itself ( including within PIL case law CJEU ( between several instruments PIL) and also in relation to case law outside PIL )

41. Case law CJEU, PIL: sometimes reproach to Court not understand own nature PIL (eg Germany, cfr . On this recently Csehi , see Praxis des Internationalen Privat- und Verfahrensrechts ( IPRax ) 4/2025: Abstracts – Conflict of Laws ( myself in recent article : how scholars position afterwards judgment in/versus the whole of case law ; Csehi: how CJEU builds itself PIL case law , relying on principles etc. developed and elaborated elsewhere , in an implicit /explicit way), issue own nature PIL while building system case law Court, and chambers not specialised – article : PIL looking for and finding its place , internal coherence and position versus “ outside ”, fitting in but also pacer . PIL itself also possibilites to Influence itself Sometimes relevant PIL keeping its own nature, principles etc. (e.g. in relation to ( restrictive ) migration law ( and ideologies connected e.g. attention influences in PIL “ combat fraud ” … see e.g. here ) At the same time sometimes need PIL reflect , introspective (“ own nature” fair? See e.g. discussions torts ) – attention sometimes presuppositions e.g. who will be plaintiff / defendant etc., see variety of cases and configurations

42. All-in all , did some “ cherry picking ” ( although talking about “ dark colours /sides”): sometimes issues: “ protection ” as such fair? Sometimes issues in interaction e.g. jurisdiction / applicable law or between several instruments / between PIL and other principles e.g. freedom of services ( sometimes , thus , “empty shell”/way of working together turning against weak party/ leaving him without any protection ) Sometimes “ protection ” worth on itself , even if lacking other steps, at least safeguard Sometimes at least starting point “ protection weak parties ”, “ effet utile ” …. (access justice …), domino-effects ; whereas no “full” effect/ obstacles : may point out, argue , go forward Not always necessarily order logical , sometimes breach in the wall , from there ( whereas not yet crystallized ) (skipping stones on water, hopscotching even though sometimes jumping over steps?) With allies : In way forward/ safeguard : sometimes useful search for allies (Charter, freedom of movement workers , consistency with dynamics freedom movement citizens , “access to justice ” …)

43. In a more general way: Benefit from broader context , but attention meanwhile broader context ( possibilities , may benefit/ attempt (e.g. Salvoni , dynamics supra: although not “ succeeded ” “ transposition ” case law directive unfair terms consumer law regarding application “ex officio”, possibility question from considerations in judgments e.g. aspects second generation regulations ), but also risks , “ mainstreaming ” when in general context, debates – e.g. possibly in relation with migration law , certain aspects of debates consumer law … PIL may become itself “ vulnerable ” when in field tensions broader debates and forces at stake ; safeguard PIL where appropriate In any case Anno 2025 : acknowledged PIL has ( ways ) to protect weak parties ; but PIL itself not always ( really ) “ neutral ”. As far as acknowledged : Now new life , ( possibility / obligation ) raise from ashes , leave from its cocoon ( which may be sometimes scaring / challenging / risky ): obtain / safeguard real neutrality ( and ultimately catalyst , pacemaker in sense more fairness ), assure no window -dressing/ optical effects at ( very ) least not instrument of power in hands of already powerful party