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.

STAGES 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 the European Judicial AreaHas been relevant for the first steps of the construction of the European Judicial Area Reviewed after 5 yearsReviewed after 5 years The Hague ProgrammeThe Hague Programme STOCKHOLM PROGRAMME (in force)STOCKHOLM PROGRAMME (in force) Complemented by the Action Plan through which the Stockholm Programme is appliedComplemented by the Action Plan through which the Stockholm 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 PERFECTING INTERNATIONAL PRIVATE LAW

3.2.- IMPROVEMENT TO CONDITIONS OF ACCESS TO JUSTICE Legal Aid –Directive of on access to justice in cross-border disputes Simplification and Acceleration of Proceedings –European Order for Payment (Regulation 1896/2006) –European Small Claims Procedure (Regulation 861/2007) Alternative Methods of Dispute Resolution –Directive of 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 ) European Judicial Network in Civil and Commercial Matters (Decision 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 systems The functioning of the European judicial area is largely based on the respective judicial systems of Member States Mutual trust  Between abstract judicial systems  And between the specific Judicial Authorities 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 PRINCIPLE OF MUTUAL RECOGNITION OF JUDGEMENTS IMPROVEMENT TO INTERNATIONAL JUDICIAL ASSISTANCE Relevance of the mechanisms for improvement to judicial assistance a) Institutional b) Handling of information Transmission between Judicial Authorities BIRTH OF A NEW JUDICIAL CULTURE: protagonism of the Judicial Authorities

STOCKHOLM PROGRAMME: MEASURES TO PROMOTE TRUST BETWEEN 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 Law and the development of the principle of mutual recognitionSupport for the EU, in particular in application of EU Law and the development of the principle of mutual recognition Development of Networks of Judicial AuthoritiesDevelopment of Networks of Judicial Authorities European Judicial Network in Civil and Commercial MattersEuropean Judicial Network in Civil and Commercial Matters 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