UNITS 1 and 2:THE EUROPEAN JUDICIAL AREA IN CIVIL AND COMMERCIAL MATTERS. THE JUDGE IN THE

CONSTRUCTION OF THE EUROPEAN JUDICIAL AREA

Joaquín Delgado Martín Senior Judge. Head of Central Services of the General

Council of the Judiciary. Doctor of Law

1st PART

THE EUROPEAN JUDICIAL AREA IN

CIVIL AND COMMERCIAL

MATTERS

European Judicial Area: in which European citizens are guaranteed equal access to

justice, in such a way that the borders of European countries are no longer an obstacle to the resolution of civil law matters

or suits and enforcement of rulings in civil cases

TREATY OF LISBON:•Mutual recognition and enforcement between the Member States of judgements and decisions in extrajudicial cases;•the cross-border service of judicial and extrajudicial documents;•The compatibility of the rules applicable in the Member States concerning conflicts of law and jurisdiction;•cooperation in the taking of evidence;•effective legal protection;•the elimination of obstacles to the proper functioning of civil procedures, if necessary by promoting the compatibility of rules on civil procedure applicable in the Member States;•the development of alternative methods of dispute resolution;•support for the training of the judiciary and judicial staff.

STAGESSTAGES• Conclusions of the Tampere European CouncilConclusions of the Tampere European Council

• Approved in 1999Approved in 1999• Has been relevant for the first steps of the construction of Has been relevant for the first steps of the construction of

the European Judicial Areathe European Judicial Area• Reviewed after 5 yearsReviewed after 5 years

• The Hague ProgrammeThe Hague Programme• 2005-20102005-2010

• STOCKHOLM PROGRAMME (in force)STOCKHOLM PROGRAMME (in force)• 2010-20142010-2014• Complemented by the Action Plan through which the Complemented by the Action Plan through which the

Stockholm Programme is appliedStockholm Programme is applied

CENTRAL FOCUSES OF THE EUROPEAN JUDICIAL AREA

FOCUS 1.- MUTUAL RECOGNITION OF JUDGEMENTS

FOCUS 2.-MEASURES TO FACILITATE PROCESSING OF PROCEEDINGS OF A CROSS-BORDER NATURE

2nd PART

THE PRINCIPLE OF MUTUAL

RECOGNITION: FOCUS OF THE EUROPEAN

JUDICIAL AREA

FORMULA OF MUTUAL RECOGNITION

Number of points subject to monitoring by the court in the State in which enforcement is sought

=Strength of the principle of mutual recognition

1st IDEA: MUTUAL RECOGNITION HAS A DYNAMIC NATURE– Full mutual recognition will exist when court orders have effect in the

territory of all the European Union Member States without grounds for any type of monitoring by the Judge in the requested State, thereby having the same consideration as a judgement delivered in this State.

– A greater quantity of points to be monitored implies a lower level of application of mutual recognition, and therefore greater delay. In short, there are different levels of application of mutual recognition .

2nd IDEA: KEY POINTS FOR THE EFFECTIVENESS OF RECOGNITION

Respect for the diversity of national

systems

ADDITIONAL MEASURES

(harmonisation of legislation)

Between judicial systems

Between the Judicial Authorities themselves

MUTUAL TRUST

Fair or equitative procedure (procedural guarantees)

Independent status of the Judge

Training, awareness and exchange activities

BIG PROBLEM: increase in the diversity of legal

systems due to the expansion of the EU

MUTUAL RECOGNITION

Harmonisation of relevant aspects of Procedural Law

Harmonisation of rules governing applicable law

(conflict of law)

Improvement to the instruments of

cooperation between judicial Authorities

Facilitation of access to justice in cross-

border disputes

ADDITIONAL MEASURES OF MUTUAL RECOGNITION

3rd PART

MEASURES TO FACILITATE THE PROCESSING OF

PROCEEDINGS OF A CROSS-BORDER NATURE

INTERNATIONAL PRIVATE LAW

SITUATION (foreign element)

4 BASIC QUESTIONS

Which court is seised of the case? International judicial jurisdiction

What material legislation is applicable by the court? Regulations on conflicts of law

What procedural regulations are applicable by the court?

Internal procedural law Rules of Community Civil Procedural Law

What impact does the judgement of a court have outside the country in which it is based?

Extraterritorial efficiency of judgements o Recognition o Enforcement

3.1.- PERFECTING INTERNATIONAL PRIVATE LAW

Which court is seised of the case??

Regulations on jurisidiction harmonised in new fields

o In the new regulatory instruments (in installments)

What material legislation is applicable by the court?

Regulations on conflicts of law o Drafting of instruments in numerous fields

(obligations, divorce, matrimonial regimes, successions)

What procedural regulations are applicable by the court?

Harmonisation of certain aspects of Procedural Law

o Standardisation of proceedings and documents

o Drafting of minimum regulations (service of documents, initiation of proceedings, enforcement and transparency of costs)

Improvement to access to justice in cross-border disputes

o European order for payment and measures to simplify and accelerate small claims disputes

o Alternative methods of dispute resolution Rules of International Civil Procedural Law

o Review of existing instruments (service of documents, evidence)

o Strengthening of the mechanisms for improving cooperation (institutional and technical mechanisms)

What impact does the judgement of a court have outside the country in which it is based?

Extraterritorial efficiency of judgements (recognition and enforcement):

o Possible progress in the elimination of monitoring: end with the abolishment of the exequatur?

o In new fields of family and successions

3.2.- IMPROVEMENT TO CONDITIONS OF ACCESS TO JUSTICE

• 3.2.1.- Legal Aid– Directive of 27-1-2003 on access to justice in cross-border

disputes

• 3.2.2.- Simplification and Acceleration of Proceedings– European Order for Payment (Regulation 1896/2006)

– European Small Claims Procedure (Regulation 861/2007)

• 3.2.3.- Alternative Methods of Dispute Resolution – Directive of 21-5-2008 on mediation in civil and

commercial matters

3.3.- INSTRUMENTS TO IMPROVE COOPERATION BETWEEN JUDICIAL AUTHORITIES IN DIFFERENT COUNTRIES

• REGULATORY– Service of

documents : Regulation 2393/2007

– Taking of evidence in civil and commercial matters: Regulation 1206/2001

• INSTITUTIONAL– Networks of Authorities

• Liaison Magistrates (Joint Action 22-4-1996)

• European Judicial Network in Civil and Commercial Matters (Decision 28-5-2011 amended in 2009)

• Internal networks

– Technological instruments• Updating and improvement to the

European Judicial Atlas

• Website of the European Judicial Network in Civil and Commercial Matters

• Vademecum of International Judicial Assistance (Spain)

4th PART

THE JUDGE IN THE CONSTRUCTION OF THE

EUROPEAN JUDICIAL AREA. TOWARDS A NEW JUDICIAL

CULTURE

Respect for the diversity of national legal systemsThe functioning of the European judicial area is largely based on the respective judicial systems of Member States

Mutual trustBetween abstract judicial systemsAnd between the specific Judicial Authorities

Dynamic nature: the need for additional measures to progress towards improved levelsThese measures should also aim at promoting trust between Judicial Authorities:Awareness of this issueBetter reciprocal knowledgeTraining

PRINCIPLE OF MUTUAL RECOGNITION OF JUDGEMENTS

IMPROVEMENT TO INTERNATIONAL

JUDICIAL ASSISTANCE

Relevance of the mechanisms for improvement to judicial assistancea) Institutionalb) Handling of information

Transmission between Judicial Authorities

BIRTH OF A NEW JUDICIAL CULTURE: protagonism of the Judicial Authorities

STOCKHOLM PROGRAMME: STOCKHOLM PROGRAMME: MEASURES TO PROMOTE TRUST MEASURES TO PROMOTE TRUST

BETWEEN JUDICIAL AUTHORITIESBETWEEN JUDICIAL AUTHORITIES• Training of Judicial AuthoritiesTraining of Judicial Authorities

• Responsibility of the StatesResponsibility of the States• Support for the EU, in particular in application of EU Support for the EU, in particular in application of EU

Law and the development of the principle of mutual Law and the development of the principle of mutual recognitionrecognition

• Development of Networks of Judicial AuthoritiesDevelopment of Networks of Judicial Authorities• European Judicial Network in Civil and Commercial European Judicial Network in Civil and Commercial

MattersMatters• European Judicial Council Network (EJCN)European Judicial Council Network (EJCN)• European Judicial Training Network (EJTN)European Judicial Training Network (EJTN)

CONCLUSIONS• The Stockholm Programme 2010 confirms the role of mutual recognition as

a cornerstone in the construction process of the European Judicial Area.

• This principle has no static nature, it is under construction within the EU, its final structure is unknown– Since Tampere 1999, significant progress has been made in the implementation

of the initial stages of mutual recognition, encompassing a significant part of civil and commercial matters

– The Hague Programme and the Stockholm Programme seek to progress towards more advanced levels of this principle, focusing particularly on the adoption of additional measures aimed at increasing mutual trust;

– Will the EU achieve full mutual recognition (abolition of the exequatur)?• The EU has progressed in the construction of Regulatory and Institutional

Instruments for the improvement of cooperation between the Judicial Authorities of the EU Member States

• The Judges in the Member States are called upon to play a very important role in the effectiveness of the application of the principle of mutual recognition and in the improvement to international judicial assistance– New culture– Necessary support by public institutions