Joaqu

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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

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1st PART

• THE EUROPEAN JUDICIAL AREA IN CIVIL AND
  COMMERCIAL MATTERS

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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 extrajudi
  cial 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.

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• STAGES
• Conclusions of the Tampere European Council
• Approved in 1999
• Has been relevant for the first steps of the
  construction of the European Judicial Area
• Reviewed after 5 years
• The Hague Programme
• 2005-2010
• STOCKHOLM PROGRAMME (in force)
• 2010-2014
• Complemented by the Action Plan through which the
  Stockholm Programme is applied

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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
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2nd PART

• THE PRINCIPLE OF MUTUAL RECOGNITION FOCUS OF THE
  EUROPEAN JUDICIAL AREA

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FORMULA 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 .

Number of points subject to monitoring by the
court in the State in which enforcement is sought
Strength of the principle of mutual recognition

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2nd IDEA KEY POINTS FOR THE EFFECTIVENESS OF
RECOGNITION
Fair or equitative procedure (procedural
guarantees)
Independent status of the Judge
Between judicial systems
Respect for the diversity of national systems
ADDITIONAL MEASURES (harmonisation of legislation)
MUTUAL TRUST
BIG PROBLEM increase in the diversity of legal
systems due to the expansion of the EU
Between the Judicial Authorities themselves
Training, awareness and exchange activities
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ADDITIONAL MEASURES OF MUTUAL RECOGNITION
Harmonisation of relevant aspects of Procedural
Law
Harmonisation of rules governing applicable law
(conflict of law)
MUTUAL RECOGNITION
Improvement to the instruments of cooperation
between judicial Authorities
Facilitation of access to justice in cross-border
disputes
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3rd PART

• MEASURES TO FACILITATE THE PROCESSING OF
  PROCEEDINGS OF A CROSS-BORDER NATURE

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3.1.- PERFECTING INTERNATIONAL PRIVATE LAW
INTERNATIONAL PRIVATE LAW SITUATION (foreign
element)
4 BASIC QUESTIONS
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(No Transcript)
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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

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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)

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4th PART

• THE JUDGE IN THE CONSTRUCTION OF THE EUROPEAN
  JUDICIAL AREA. TOWARDS A NEW JUDICIAL CULTURE

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PRINCIPLE OF MUTUAL RECOGNITION OF JUDGEMENTS
IMPROVEMENT TO INTERNATIONAL JUDICIAL ASSISTANCE
Respect for the diversity of national legal
systems The functioning of the European judicial
area is largely based on the respective judicial
systems of Member States
Transmission between Judicial Authorities

• Mutual trust
• Between abstract judicial systems
• And between the specific Judicial Authorities

Relevance of the mechanisms for improvement to
judicial assistance a) Institutional b)
Handling of information

• Dynamic nature the need for additional measures
  to progress towards improved levels
• These measures should also aim at promoting trust
  between Judicial Authorities
• Awareness of this issue
• Better reciprocal knowledge
• Training

BIRTH OF A NEW JUDICIAL CULTURE protagonism of
the Judicial Authorities
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• STOCKHOLM PROGRAMME MEASURES TO PROMOTE TRUST
  BETWEEN JUDICIAL AUTHORITIES
• Training of Judicial Authorities
• Responsibility of the States
• Support for the EU, in particular in application
  of EU Law and the development of the principle of
  mutual recognition
• Development of Networks of Judicial Authorities
• European Judicial Network in Civil and Commercial
  Matters
• European Judicial Council Network (EJCN)
• European Judicial Training Network (EJTN)

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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