Judicial cooperation in civil matters

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


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


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.


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.


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

Judicial cooperation in civil matters

Documents

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