Drafting and significance of the reform of the Preliminary Title of the 1974 Civil Code in the Spanish private international law

Abstract

The 1974 reform of the Preliminary Title of the Spanish Civil Code, by introducing for the first time specific rules of Private International Law (PIL), constituted a significant but insufficient step towards the modernisation of this system. Conceived in a political and social context that was not very favourable, the reform was essentially limited to questions of applicable law, leaving aside fundamental aspects such as international jurisdiction or the recognition and enforcement of foreign decisions. This option, inspired by nineteenth-century traditions and the Savignian model of attribution, gave rise to a rigid system, with single connections, and maintained old criteria such as nationality in personal and family matters. Moreover, despite the introduction of the notion of habitual residence and the presence of some corrective clauses, the system was out of step with the needs of contemporary international legal traffic.
With the arrival of the 1978 Constitution, the intense international codification activity and European integration, the panorama of Spanish private international law was radically transformed. The Constitution required adapting the rules to principles such as equality, having an impact on the discriminatory connections that remained, and stimulated the protection of minors and the conciliation between the principle of legal certainty and material justice. At the same time, the progressive and the massive incorporation of international treaties and European Union regulations diluted the protagonism of Chapter IV of the Preliminary Title, which was left behind and fragmented in the face of the emergence of international and Community sources. This evolution generated a complex ‘polysystem’, in which the internal rules of private international law are combined with international and European instruments, causing normative dispersion and making the work of legal operators and judges difficult, who must first identify the relevant rule from among multiple sources.
The current situation highlights the discussion about the convenience of undertaking a new comprehensive reform of Spanish private international law. Far from creating a radically new system, it would be a matter of articulating a general framework capable of providing the system with greater coherence, clarity and flexibility. It would be advisable to opt for a Special Private International Law Act, in the style of other European and Latin American countries, which systematises the dispersed rules, complements them and establishes more modern connections, recognising the autonomy of private international law with respect to domestic law. This law should have a tripartite design, jointly contemplating international jurisdiction, applicable law and recognition of foreign decisions, thus allowing for a unitary vision, materially oriented towards obtaining fair and effective results. Furthermore, the law should be harmonised with the unification and communitisation trends in the European Union, integrating synergies with secondary EU law and recognising the primacy of international instruments.

The experience of other States and the evolution of the Spanish legal system itself show that, despite Europeanisation and the limitations of national legislative action, a comprehensive reform of private international law by means of a special law continues to be valuable. A coherent, solid, adaptable text, aligned with constitutional values, international and EU law, would provide Spain with the necessary tools to face the complex demands of contemporary international legal traffic, overcoming the rigidity and fragmentation inherited from the 1974 model. In this way, Spanish private international law would be modernised without abandoning its national roots, serving as a reference for future developments in an increasingly globalised context.