Sn

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Support of the foreign language profile of law
tuition at the Faculty of Law in
OlomoucCZ.1.07/2.2.00/15.0288
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Introduction into European civil procedure
law(Judicial cooperation of EU Member states in
civil matters)
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General information

• 12 lectures
• No class on 9.3.2011
• Two absences allowed
• Final test
• Contact renata.sinova_at_upol.cz

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Background

• Citizens of the European Union enjoy unparalleled
  freedom to travel, work and live anywhere in the
  EU. To benefit fully, people need to lead their
  lives and go about their business in security and
  safety.
• They must be protected against international
  crime and terrorism, and at the same time enjoy
  equal access to justice and respect for their
  fundamental rights across the Union.

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Background

• For this reason EU creates the area of freedom,
  justice and security.
• Once fully in place, it will cover issues like EU
  citizenship, personal mobility, asylum,
  immigration, visa policy, managing the EUs
  external frontiers and close cooperation between
  national police, judicial and customs
  authorities.
• This package will ensure that laws which apply to
  EU citizens, visitors and immigrants from other
  parts of the world as well as to criminals and
  terrorists are uniformly implemented across the
  Union there shall exist minimal standards which
  are guaranteed all over the EU.

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General characteristics

• Area of freedom, security and justice covers many
  areas like EU citizenship, asylum and immigration
  etc.
• This subject focusses only on judicial
  cooperation in civil matters (civil matters
  having cross border implications), especially on
  its procedural part EUROPEAN CIVIL PROCEDURE.

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General characteristics

• The notion European civil procedure is not
  official, the official designation is Judicial
  cooperation (of members states) in civil matters,
  or European judicial area (of freedom, security
  and justice) in civil matters.
• May be characterised as body of acts of European
  law (union law international agreements of
  member states) dealing in accordance with
  international element and mutual judicial
  cooperation with chosen institutes of national
  law which are usually composed as a part of civil
  procedure law.

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General characteristics

• Within the Czech legal system
• Originally a part of international private law
  (general review of the problem from the
  international point of view)
• After the entry important influence of the acts
  in the national law, concrete problems the
  application of European law within the national
  context.

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Historical Background

• The foundation of European communities the
  primary aim was the economic integration.
• The free movement of goods, people, services and
  capital ---gt growth of disputes with
  international element.
• Originally the Communities had no competence in
  the field, only article ex 220 of EC Treaty
  (later 293) declared, that so far as is
  necessary, the member states shall enter into
  negotiations 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 or tribunals and of
  arbitration awards.

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The Brussels Convention

• On the basis of the article 220 of the EC Treaty
  an international convention was concluded in 1968
  The Convention on jurisdiction and the
  enforcement of judgments in civil and commercial
  matters so called Brussels I convention.
• Important progress in the cooperation, but
  contained in an international convention new
  states had always the obligation to ratify the
  convention, updating obligation of ratification
  --gtin one moment different versions of the
  convention between different member states.

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The Lugano Convention

• The Brussels Convention was not open for
  ratification of other than member states.
• Many non member states were interested in the
  cooperation ---gt in 1988 member states concluded
  with Norway, Iceland and Switzerland (European
  Free Trade Association) so called Lugano
  convention on jurisdiction and the enforcement of
  judgments in civil and commercial matters.
• The provisions of both conventions precisely
  the same.

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The Maastricht Treaty

• The Maastricht Treaty brought the foundation of
  the European Union and its pillars.
• Third pillar judicial cooperation of member
  states in civil and criminal matters.
• The judicial cooperation still did not fall
  under the competence of the European Communities,
  however the level of cooperation increased (the
  institutions of the EU had the competence to
  issue union law acts).

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The Amsterdam Treaty

• The Amsterdam Treaty was the break point in the
  field of judicial cooperation in civil matters.
• The Amsterdam Treaty creates the Area of freedom,
  security and justice two parts civil matters
  and criminal matters.
• The judicial cooperation in civil matters was
  communitarized its legal regulation was
  transferred into the first pillar of the EU
  under the competence of the EC institutions.

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The Lisbon Treaty

• The Lisbon Treaty brings changes to EU Treaty and
  EC Treaty (EC Treaty now Treaty on the
  functioning of the European Union).
• Valid from 1/12/2010.
• The three-pillar structure was abandoned.
• Judicial cooperation in civil matters now Title
  V, Chapter 3 (article 81 TFEU).

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Article 81 of TFEU

• 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.
• For these purposes 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
• (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.
• 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.
• The Council, on a proposal from the Commission,
  may adopt a decision determining those aspects of
  family law with cross-border implications which
  may be the subject of acts adopted by the
  ordinary legislative procedure. The Council shall
  act unanimously after consulting the
  European Parliament.
• The proposal referred to in the second
  subparagraph shall be notified to the national
  Parliaments. If a national Parliament makes known
  its opposition within six months of the date of
  such notification, the decision shall not be
  adopted. In the absence of opposition, the
  Council may adopt the decision.

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Article 81 of TFEU

• 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.
• The Council, on a proposal from the Commission,
  may adopt a decision determining those aspects of
  family law with cross-border implications which
  may be the subject of acts adopted by the
  ordinary legislative procedure. The Council shall
  act unanimously after consulting the
  European Parliament.
• The proposal from the Comission shall be notified
  to the national Parliaments. If a national
  Parliament makes known its opposition within six
  months of the date of such notification, the
  decision shall not be adopted. In the absence of
  opposition, the Council may adopt the decision.

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The new Lugano convention

• In order to simplify the situation with Lugano
  Convention from 1988, the EU signed on 30.10.2007
  so call new Lugano convention.
• It also harmonizes regulation in Lugano
  convention with regulation in Brussels I
  regulation.
• Valid for Norway from 1/1/2010, for Switzerland
  from 1/1/2011.

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The Denmark situation

• The Denmark does not cooperate in the field of
  judicial cooperation in civil matters.The
  legislation adopted under Title V, Chapter 3 is
  not binding for Denmark.
• However the level of cooperation with Denmark
  increases and Denmark agreed to adopt certain
  acts.

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Sources of European civil procedure

• Primary EU Treaty, FTEU Treaty
• Secondary regulations, directives, decisions
  etc.
• Tertiary international agreements

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Judicial cooperation in civil matters

• GENERAL FRAMEWORK
• The Stockholm Programme
• Action plan to the Stockholm Programme
• European contract law
• In 2009 Convention on Choice of courts agreements
  was signed etc.

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Judicial cooperation in civil matters

• MUTUAL RECOGNITION AND ENFORCEMENT OF JUDGMENTS
• Council Regulation (EC) No 44/2001, of 22
  December 2000 on jurisdiction and the recognition
  and enforcement of judgments in civil and
  commercial matters Official Journal L 12 of
  16.01.2001. Brussels I Regulation
• Council Regulation (EC) No 2201/2003 concerning
  jurisdiction and the recognition and enforcement
  of judgments in matrimonial matters and in
  matters of parental responsibility, repealing
  Regulation (EC) No 1347/2000 Brussels IIbis
  Regulation

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• 3. Council Regulation (EC) No 1346/2000 of 29 May
  2000 on insolvency proceedings
• 4. European Parliament and Council Regulation No
  805/2004 of 21 April 2004 creating a European
  enforcement order for uncontested claims.
• 5. Regulation No 1896/2006 of the European
  Parliament and of the Council of 12 December
  creating a European enforcement order for payment
  procedure
• 6. Regulation No 861/2007 of the European
  Parliament and of the Council of 11 July
  establishing a European small claims procedure
• 7. Council Regulation (EC) No 4/2009 of
  18 December 2008 on jurisdiction, applicable law,
  recognition and enforcement of decisions and
  cooperation in matters relating to maintenance
  obligations
• 8. Directive 2008/52/EC of the European
  Parliament and of the Council of 21 May 2008 on
  certain aspects of mediation in civil and
  commercial matters.

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Judicial cooperation in civil matters

• COOPERATION BETWEEN MEMBER STATES
• Council Regulation (EC) No 1206/2001 of 28 May
  2001 on cooperation between the courts of the
  Member States in the taking of evidence in civil
  and commercial matters Official Journal L 174 of
  27.06.2001.
• Regulation (EC) No 1393/2007 of the European
  Parliament and of the Council of 13 November 2007
  on the service in the Member States of judicial
  and extrajudicial documents in civil or
  commercial matters (service of documents), and
  repealing Council Regulation (EC) No 1348/2000
• Council Decision 2001/470/EC of 28 May 2001
  establishing a European Judicial Network in civil
  and commercial matters Official Journal L 174 of
  27.06.2001.

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Judicial cooperation in civil matters

• APPLICABLE LAW
• Regulation (EC) No 593/2008 of the European
  Parliament and of the Council of 17 June 2008 on
  the law applicable to contractual obligations
  (Rome I)
• Regulation (EC) No 864/2007 of the European
  Parliament and of the Council of 11 July 2007 on
  the law applicable to non-contractual obligations
  (Rome II)

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Judicial cooperation in civil matters

• ACCES TO JUSTICE
• Council Directive 2003/8/EC of 27 January 2003 to
  improve access to justice in cross-border
  disputes by establishing minimum common rules
  relating to legal aid for such disputes
• Commission Decision 2005/630/EC of 26 August 2005
  establishing a form for the transmission of legal
  aid applications under Council Directive
  2003/8/EC Official Journal L 225 of 31.08.2005.
  
• Commission Decision 2004/844/EC of 9 November
  2004 establishing a form for legal aid
  applications under Council Directive 2003/8/EC to
  improve access to justice in cross-border
  disputes by establishing minimum common rules
  relating to legal aid for such disputes Official
  Journal L 365 of 10.12.2004.
• Communication from the Commission to the Council,
  the European Parliament and the European Economic
  and Social Committee of 30 May 2008 Towards a
  European e-Justice Strategy

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The information sources

• http//europa.eu Gateway to the European Union
• http//ec.europa.eu/civiljustice/homepage/homepage
  _ec_en.htm - Judicial network in civil and
  commercial matters
• http//ec.europa.eu/justice_home/judicialatlascivi
  l/html/index_en.htm - European judicial atlas in
  civil matters