Ulrich Ernst

The Polish Private International Law Act of 2011 – National Recodification in Times of Exercise of Supranational CompetencesKompetenzwahrnehmung

Das polnische IPR-Gesetz von 2011 mitgliedstaatliche Rekodifikation in Zeiten supranationaler

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The Private International Law Act of 2011 is the third instance of Polish legislation in this area, being preceded by regulations from 1926, when the country regained its independence, and 1965, after the introduction of the national Civil Code. The initiative for a reform had been formulated in 1998, even before the EU accession, stating that the country should enact provisions of the Rome Convention and that the statute from 1965 was not detailed enough. Opponents of the draft considered it an advantage that the Act from 1965 was both short and complete. They did not find it necessary to replace tried provisions given that the introduction of EU regulations seemed to be a matter of time. They also uttered doubts about the quality of the proposed innovations and underlined that no one had established the extent to which the new rules would answer problems courts faced under the old law. The new statute is twice as long as its predecessor (even though essential issues are no longer ruled by internal law) but generally keeps its structure and style. On many detailed questions one finds special conflict rules. As new areas of regulation, consumer contracts, intellectual property and negotiable instruments have appeared. The new law also offers the possibility of a choice of law in matrimonial and succession matters. Another innovation is the introduction of habitual residence, used not only in the EU-unified legal areas, but also in the autonomous rules on family and succession law. Where it broadens the possibility of choice of law, it represents progress, but where it is to be taken into account only subsidiarily next to traditional elements such as citizenship and residence, its impact is doubtful. Several changes might make the application of PIL easier, yet others will rather provoke doubts. The new Act demonstrates that there is still a large amount of room for national regulation. Some space has been left for general provisions, too, but they lose their function of providing a general overview with every new piece of EU regulation. The introduction of an entirely new PIL cannot be seen as an answer to EU requirements, nor was it required on account of practical needs. Rather, it is the realisation of a vision of completing the shorter act previously in force.

Ulrich Ernst Geboren 1972; Studium des deutschen Rechts in Frankfurt (Oder) und des polnischen Rechts in Posen; seit 2002 Forschungsaufenthalt in Krakau; 2005 Promotion; Wissenschaftlicher Assistent am Lehrstuhl für Zivilrecht, Jagiellonen-Universität Krakau.