The Interaction between Rome I and Mandatory EU Private Rules EPIL and EPL: Communicating Vessels?

The Rome I Regulation on the applicable law to contractual obligations co-exists with a still expanding body of EU rules on various aspects of contract law. A specific question that has been raised during the negotiations on the Rome I Regulation is how this instrument relates to substantive EU consumer law in view of the desired coherence of consumer protection. More in general, the question may be posed how the conflict rules of Rome I and (substantive) mandatory EU rules in the field of private law interact; in how far are European Private International Law (EPIL), in particular Rome I, and European Private Law (EPL) communicating vessels? The tension between conflict rules and choice of law in particular and mandatory EU private law was already revealed in the Ingmar case (2000), in which the ECJ ruled that a choice of law could not evade the mandatory provisions of the Agency Directive. This seems to be a clear triumph of mandatory European private law. However, this is not the end of the story, and more recent developments in the field of European private international law and substantive private law complicate matters. The debate has been triggered by the Consumer Rights Directive, the CESL proposal and been given a new dimension by the rulings in EDate Advertising and Unamar. This paper analyses the interaction between various provisions of Rome I and European private law at the macro level, and aims to contribute to the discussion on how this relationship can be defined.