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Introduction into European civil procedure law (Judicial cooperation of EU Member states in civil matters)

General information 12 lectures No class on Two absences allowed Final test Contact:

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.

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 EU’s 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.

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.

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.

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.

Historical Background The foundation of European communities – the primary aim was the economic integration. The free movement of goods, people, services and capital ---> 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.

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 -->in one moment – different versions of the convention between different member states.

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 ---> 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.

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).

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.

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).

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.

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.

The „new“ Lugano convention In order to simplify the situation with Lugano Convention from 1988, the EU signed on 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.

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.

Sources of European civil procedure Primary – EU Treaty, FTEU Treaty Secondary – regulations, directives, decisions etc. Tertiary – international agreements

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.

Judicial cooperation in civil matters MUTUAL RECOGNITION AND ENFORCEMENT OF JUDGMENTS 1.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 ]. – Brussels I Regulation44/ 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 Regulation2201/ /2000

3. Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings1346/ 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.2008/52/EC

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 ].1206/2001 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 ].2001/470/EC

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)593/2008 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)864/2007

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 disputes2003/8/EC 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 ].2005/630/EC2003/8/EC 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 ].2004/844/EC2003/8/EC 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

The information sources – Gateway to the European Unioneuropa.eu ge/homepage_ec_en.htm - Judicial network in civil and commercial mattershttp://ec.europa.eu/civiljustice/homepa ge/homepage_ec_en.htm alatlascivil/html/index_en.htm - European judicial atlas in civil mattershttp://ec.europa.eu/justice_home/judici alatlascivil/html/index_en.htm