judicial cooperation in civil matters
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Judicial cooperation in civil matters
Silvia Marino
PARTICULAR EU COMPETENCEshared…
…but not by all the MS….and in external relationships?
not functional to the internal market…but with a great incidence into MS legislation
…and excercised through regulationsfragmented
…but increasingly growing
Art. 220 original 1957 Treaty, subs. Art. 293 EC Treaty:Member States shall, so far as is necessary, enter intonegotiations with each other with a view to securing for the benefit of their nationals:(…)- THE SIMPLIFICATION OF FORMALITIES GOVERNING THE RECIPROCAL RECOGNITION AND ENFORCEMENT
OF JUDGMENTS OF COURTS AND OF TRIBUNAL AWARDS
Was it really necessary? The Hague Conference of
Private International Law, est. 1893
Ex.: Convention of 1 February 1971 on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters
Convention between Finland, Island, Norway, Sweden and Danmark concerningrecognition and enforcementof decisions in civil matters(Copenaghen, 1 October 1977)
Convention between Finland and Austria concerningrecognition and enforcementof decisions in civil matters(Vienna, 17 November 1986)
Bilateral / multilateral treaties
An incitement to MS
SOLE RESULT
Convention on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters, Brussels 1968(Brussels Convention)
BUT VERY SUCCESSFUL
FROM INTERNATIONAL COOPERATION TO EU COMPETENCE
Maastricht Treaty, article K TEU – 1992/1993
Amsterdam Treaty, article 65 TEC - 1997/1999
Lisbon Treaty, article 81 TFEU – 2007/2009
FROM INTERNATIONAL COOPERATION TO EU
COMPETENCE
Maastricht Treaty, art. K1
“Matters ofcommon interest”
-judicialcooperation in civil matters
Convention on insolvencyproceedings, 1995
Convention on jurisdictionand the recognition and enforcement of judgments in family matters, 1998
FROM INTERNATIONAL COOPERATION TO EU COMPETENCE
Amsterdam Treaty, article 65 Measures in the field of judicial cooperation First clear EU competence Adoption of EU measures In so far as necessary for the proper functioning of the internal market
Cross border service Taking evidence Recognition and enforcement of decisions in civil and commercial
matters Promoting the compatibility of the rules concerning conflict of laws
and of jurisdiction Elimination of obstacles to the good functioning of civil
proceedings
Regulation n. 1346/2000 on insolvency proceedings
Regulation n. 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, repealed by
Regulation n. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility
Regulation n. 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters
Regulation n. 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters
Regulation n. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
FROM INTERNATIONAL COOPERATION TO EU COMPETENCE
NOW: Lisbon Treaty, article 81 1. The Union shall develop judicial cooperation in civil matters having cross-
border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.
2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: […]
3. Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.
Aimed at ensuring: a) the mutual recognition and enforcement between Member States
of judgments and of decisions in extrajudicial cases; (b) the cross-border service of judicial and extrajudicial documents; (c) the compatibility of the rules applicable in the Member States
concerning conflict of laws and of jurisdiction; (d) cooperation in the taking of evidence; (e) effective access to justice; (f) the elimination of obstacles to the proper functioning of civil
proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States;
(g) the development of alternative methods of dispute settlement; (h) support for the training of the judiciary and judicial staff.
NOW: Lisbon Treaty, article 81
FIRST SPECIAL CHARACTER
FOR ALL MEMBER STATES?
OPT IN• Protocol n.
21
OPT OUT• Protocol n.
22
Or some?
second SPECIAL CHARACTER
Sharedcompetence
(art. 4 TFEU)
Internalcompetence
No MS powersif EU adoptsmeasures = exclusive
Principle ofsubsidiarity
Externalcompetence
International Conventions
necessary for internal
competence/it affects common
rules (art. 3 TFEU)
WHAT IS NECESSARY to enable the Union to exercise its internalcompetence, or in so far as its conclusion may affect common rulesor alter their scope?
Lugano Convention Opinion – 7 February 2006- Adoption of the Lugano Convention
- Very similar content to reg. 44/2001
“the main provisions of the agreement envisaged are capable of affecting the unified and coherent nature of the rules of jurisdiction laid down by Regulation”
- MERELY INTERFERENCE?
WHAT IS NECESSARY to enable the Union to exercise itsinternal competence, or in so far as its conclusion may affectcommon rules or alter their scope?
The Hague Conference Convention Opinion - Declaration of acceptance of new accessions by third States to
the Convention on the civil aspects of international child abduction
- partly regulated by reg. 2201/2003 (complements the Convention for MS)
“because of the overlap and the close connection between the reg. and the Convention, the provisions of the Convention may have an effect on the meaning, scope and effectiveness of the rules laid down in Regulation No 2201/2003. That conclusion is not undermined by the fact that many provisions of Regulation may appear to be consonant with those of the Convention”
MERELY INTERFERENCE!
(art. 3, para. 3 TEU) “The Union shall establish an internal market”(post-AMST. Treaty, art. 65 TEC) “in so far as necessary”(art. 81 TFEU) “particularly when necessary for the proper functioning of the internal market”
Third SPECIAL CHARACTERConnection to the internal market
Under art. 65 Under art. 81The Internal Market Connection
Whereas n. 1 reg. 655/2014: “The Union has set itself the objective of maintaining and developing an area of freedom, security and justice (..).For the gradual establishment of such an area, the Union is to adopt measures relating to judicial cooperation in civil matters having cross-border implications, particularly when necessary for the proper functioning of the internal market”
Whereas n. 2 reg. 44/2001: “Certain differences between national rules governing jurisdiction and recognition of judgments hamper the sound operation of the internal market. Provisions to unify the rules of conflict of jurisdiction in civil and commercial matters (…) are essential”
The Internal Market Connection?
“1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States”.
“4. The Union shall facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters”.
Art. 67 TFEU
Enhanced cooperationArt. 20 TEU: “Member States which wish to establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Treaties”
Enhanced Cooperation
First introduced by the Amsterdam Treaty
First use: reg. 1259/2010 Started by 14 MS, today
16 Finland not taking part
to it
Proposals on matrimonial propertyregimes and propertyconsequences ofregistered partership –2011
Council declarationdecember 2015 on enhanced cooperation
VERY CRITICALKeeps/strenghtens fragmentationWhere is the mutual trust?Complicates the judicial activities in - finding the sources of the law - understanding the mutual
relationships between MS
Enhanced Cooperation
Instruments (currently) in force
1) Insolvency Regulation, n. 1346/2000 (J., AL., R.E.), to be replaced by Regulation n. 2015/848 from 26 June 2017
2) Maintenance Regulation, n. 4/2009 (J., AL., R.E.)3) Succession Regulation, n. 650/2012 (J. AL., R.E.)4) Brussels I Regulation, n. 44/2001 (J., R.E.), as of 15 January 2015 replaced by
Regulation n. 1215/2012, as amended by Regulation n. 542/2014 (Brussels I-bis)5) Brussels II-bis Regulation, n. 2201/2003 (J., R.E.)6) Regulation creating a European Enforcement Order, n. 805/20047) Regulation creating a European Order for Payment Procedure, n. 1896/2006,
amended by Regulation n. 2015/2421 from 14 July 20178) Regulation establishing a European Small Claims Procedure, n. 861/2007, amended
by Regulation n. 2015/2421 from 14 July 20179) Regulation establishing a European Account Preservation Order, n. 655/2014
(applicable as of 18 January 2017)10) Regulation on mutual recognition of protection measures in civil matters, n.
606/201311) Rome I Regulation, n. 593/2008 (A.L. contractual obligations)12) Rome II Regulation, n. 864/2007 (A.L. non-contractual obligations)13) Rome III Regulation, n. 1259/2010 (A.L. divorce; enhanced cooperation)14) Evidence Regulation, n. 1206/200115) Service Regulation, n. 1393/2007
FUTURE CHALLANGES Regulation of the European Parliament and of the Council
on promoting the free movement of citizens and businesses by simplifying the acceptance of certain public documents in the European Union and amending Regulation (EU) n. 1024/2012
Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes
Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships
Judicial cooperationand proportionalityArt. 4, para. 4 TFEU:“Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties”
Content: Buitoni Judgment, 20.2.79, 122/78
Form: to be preferred non-binding acts directives
Art. 81, para. 2, l. c): «(c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction»
Uniformation of laws on conflicts of laws
- Mostly regulations- Some provisions in directives
with other objects (art. 7 Directive 88/357/EEC on direct insurance other than life assurance; art. 32 Directive 2002/83/EC concerning life assurance)
- Some internationalConventions (The Hague Convention of 30 June 2005 on Choice of Court Agreements )
- many subjects involved (divorce – uniform civil proceedings)
Judicial cooperation and proportionality
Impact on nationalfamily lawsNO EU competence in family lawNO possibleharmonisation/unificationNO possibility to use art. 352
(flexibility clause)
Art. 81, para. 3: «the family law exception»
measures to be adopted by the Council
EP consultation
Council reg. n. 2201/2003 Council reg. n. 4/2009 Council reg. n. 1259/2010 EP + Council reg. n. 650/2012 Future Council regulations on
property regimes?
Impact on national family laws
Article 13 reg. 1259/2010
Differences in national law
Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings to pronounce a divorce by virtue of the application of this Regulation.
WHAT ABOUT UNKNOWN FAMILY INSTITUTIONS?
Impact on national family lawsArticle 22 reg. 4/2009
No effect on the existence of family relationships
The recognition and enforcement of a decision on maintenance under this Regulation shall not in any way imply the recognition of the family relationship, parentage, marriage or affinity underlying the maintenance obligation which gave rise to the decision.
WHAT ABOUT UNKNOWN FAMILY INSTITUTIONS?
Article 28 A amended proposal reg. matr. pr. reg. Differences in applicable law The recognition and enforcement of a decision may not be
refused solely because the law of the Member State of enforcement would not allow a matrimonial property regime on the same facts.
WHAT ABOUT UNKNOWN FAMILY INSTITUTIONS?
Impact on national family laws
Legal CERTAINTY?
do we know in advanceWhich law should apply?Which judge has jurisdiction?How will the judicial decision circulatein the EU?
Constant reviews of the regulations adopted Many amendements Reviews always provided: i.e. art. 82 reg. 650/2012
2025 report on the application of the regulation 10 year application and then?
Correct to update legal texts Always new needs Maybe wrong choices BUT Is it civil cooperation REALLY to be updated every 10 years? See
Germany Einführungsgesetz zum Bürgerlichen Gesetzbuche 1896 Uncertainty Need to understand the applicable text Transitional provisions
Don’t you believe me?CJEU, Homawoo, case C-412/10, 17 november 2011 Art. 31 Rome II Regulation: ‘This Regulation shall apply to
events giving rise to damage which occur after its entry into force.’ (=20 august 2007)
Art. 32: ‘This Regulation shall apply from 11 January 2009[…].’ Preliminary questions of the High Court of Justice of
England and Wales Are Articles 31 and 32 to be interpreted to require a national
court to apply the Regulation in a case where the event giving rise to the damage occurred on 29 August 2007?” = What about the road traffic accident occured to Mr. Homawoo on 29 August 2007?
The nature of the RegulationsSingle Double
Applicable Law: Rome I, Rome II, Rome III
Traditionally, internationalconventions on applicable law Ex.: the Hague Convention of 4
May 1971 on the Law Applicable to Traffic Accidents
Jurisdiction + recognition and enforcement: Bruxelles I
Traditionally, internationalconventions only on recognitionand enforcement Ex.: the Hague Convention of 15
April 1958 concerning the recognition and enforcement of decisions relating to maintenance obligations towards children
Treble …and more… Applicable law, jurisdiction,
recognition, enforcement: Insolvency reg.
Very innovative
+ administrative cooperation: Maintenance Regulation
Succession Regulation(European Certificate ofSuccession)
The nature of the Regulations
…and not yet enough
European Enforcement Order, n. 805/2004 – uncontested claims
European Order for Payment Procedure, n. 1896/2006, n. 2015/2421–simplified procedure for pecuniary claims
European Small Claims Procedure, n. 861/2007, n. 2015/2421
European Account Preservation Order, n. 655/2014 (applicable as of 18 January 2017) – preserving the goods of the debtor during the proceeding in all EU
Different topics – different structuresAn example: Reg. 1215/2012
Jurisdiction Recognition and enforcement
General provisions (Owusucase)
Special jurisdiction Jurisdiction related to contracts
concluded by a weaker party –almost exclusive Insurance Consumer Employment
Exclusive jurisdiction Agreement on jurisdiction
Specific provisions on recognition
…on enforcement Common rules
Art. 81 TFEU: judicial cooperation based on the principle of mutual recognition
Reg. 2201/2003 automatic recognition, semplifiedenforcement
Reg. 650/2012
Reg. 1215/2012 automatic recognition and enforcement Reg. 4/2009
Reg. 1896/2006 uniform proceeding on the merits + certification to circulate
Reg. 861/2007
Circulation of judgments is meant to be easier Simplified No intermediate procedure in the State of
recognition/enforcement Safe specific exception(s) Based on MUTUAL TRUST
Diageo case, C-681/13: enforcement of a final judgment whichapplied wrongly EU Law (directive on trade marks)
Mutual trust: each judge in MS applies correctly the law A mistake in law is not enough to avoid enforcement…
…except it is too big a mistake?(Lucchini case, C-119/05)
Art. 81 TFEU: judicial cooperation based on the principle of mutual recognition
Art. 81 TFEU: judicial cooperationbased on the principle of mutual recognition
Limits to the mutual recognitionVarying from eachregulation
One common feature
PUBLIC POLICYEUROPEAN
Very peculiar competenceMany normative acts enacted
Very critical for some aspects (family law, public policy)Current stop
is it necessary to- rethink the cooperation on civil matters?
- restart from the foundations (Rome 0 and Brussels 0 regulations?)
Silvia Marino
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