A. THE PRESENT SITUATION EMERGING FROM THE 1997 AMSTERDAM TREATY AND THE TAMPERE EUROPEAN COUNCIL OF 1999
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Carlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 1/15
Civil Justice in the European Union – past and future
Carlos Manuel Gonçalves de Melo Marinho
Judge at the Lisbon Court of Appeal
Ex-National Contact Point of the European Judicial Network in Civil and
Commercial Matters
A. THE PRESENT SITUATION EMERGING FROM THE 1997
AMSTERDAM TREATY AND THE TAMPERE EUROPEAN COUNCIL
OF 1999
In order to prepare the future, it is essential to know where we are,
what we have achieved, what we do need. Unfortunately, it is not so rare to find
changes introduced without the due previous and rigorous diagnostics.
Our present, in the area of the judicial cooperation in Europe and in
the domains of the new common private international law is marked by a Treaty
that changed in a revolutionary way this technical domain and introduced some
particularly effective and exciting new criteria that generated the extraordinary
developments of the following years – The Treaty of Amsterdam of 2 October
1997.
Its commands were initially developed by and also essential document
– the Presidency Conclusions of the Tampere European Council of 15 and 16
October 1999.
It resulted from these crucial texts the initial and central commands
that were at the origin of the present legal framework of European Union Law in
civil and commercial matters.
After a way of more than one decade, we can detect the attainment of
the following achievements:Carlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 2/15
1. Private international law in EU has stopped being a matter of
national law and of some sporadic international conventions – namely of the
Hague Conference on Private International Law – and started to have a horizontal
and common dimension, which means that were systematically created legal
instruments applicable in the most part of the EU Countries in order to produce an
wide-ranging structure of rules oriented to perform the essential task of providing
criteria for the choice of the law applicable in cross border cases.
2. It was expressly recognized that private international law measures
are required to support the free movement of citizens. Such measures were
declared as essential to the common economy, in order to produce the confidence
that generates the displacement of the EU citizens and the opening of the
undertakings to the exterior without fears and hesitations emerging from the
diversity of legal systems, unpredictability of the laws applicable to solve a
specific conflict and lack of knowledge of the foreign legal rules that might
emerge from the change of geographical references. Even being previously known
and referred the importance of those measures, the verbalization of the relevance
of such tools represents a major achievement.
3. Consistent efforts were made, at the EU level, in order to reach the
establishment of an area of freedom, security, and justice through the adoption
of measures in the field of judicial cooperation in civil matters, thus aiming to
make reality the command coming from Article 61 of the Treaty Establishing the
European Community (ECT) and, after, from Article 67 Treaty on the Functioning
of the European Union (TFEU). In such context, it couldn't be forgotten that the
construction of a common area of Justice demands:
(a) Direct communication between courts;
(b) A new conscience about the tasks of the legal
professionals (that must be seen under a broader look – judges,
for example, are, in first place, European judges) and
(c) Mutual trust between the European authorities acting inCarlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 3/15
such an area, especially courts.
In Article 61 of the ECT this domain represented a mere goal or the
result of a long program of action («In order to establish progressively an area of
freedom, security and justice ...»). In Article 67 of the TFEU the common area of
justice is seen as a reality, an ontological element of the EC («The Union shall
constitute an area of freedom, security and justice»)
4. A broad framework legal rules has been established. Several
regulations, directives – v.g. on legal aid (2002/8/EC), compensation of crime
victims (2004/80/EC) and mediation (2008/52/EC) – and decisions on judicial
cooperation in civil and commercial matters were approved and are in force,
accompanied by programs – Hague Programme (2004) and the Stockholm
Programme (2009) –, conclusions, guides and declarations produced during 14
years.
These legal instruments are, today, part of an enlarged, comprehensive
and complex framework over which it is build the European area of justice.
5. It was developed and materialised the new idea of the free
circulation of judicial (or similar) decisions through the general suppression of
the intermediate measures for enforcement (exequatur), thus implementing the
principle of mutual recognition of judicial and extra-judicial decisions in civil
matters – Article 61 TEC, Article 29 TEU and Article 67 of TFEU.
This principle was for the first time recognised and used in the
COUNCIL REGULATION (EC) No 2201/2003 of 27 November 2003 concerning
jurisdiction and the recognition and enforcement of judgments in matrimonial
matters and the matters of parental responsibility, repealing Regulation (EC) No
1347/2000 (Brussels II bis Regulation), in the domains of rights of access and
return of the child – see Articles 41 and 42 – and it was several times times
utilized after that, becoming the most important tool of this area. It appeared that,
by coherence and efficacy reasons, it could also be extended to the Brussels I
Regulation, the emblematic and central legal text on civil matters in the EU butCarlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 4/15
that didn't happened.
6. It was recognized the principle of the direct cooperation between
the EU courts. By it, no intermediation is required for the performance of several
tasks of the judicial cooperation in Europe – e.g. in the taking of evidence (see
Artcles 1, 2 and 17 of 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 or commercial matters), service of documents (see Article 4(1) of
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) and agreement on a
better placed court (see Article 15(6) of the Regulation Brussels II bis).
7. It was established a European Judicial Network in civil and
commercial matters which produced some fruits and helped to install the new
logic of judicial cooperation in the EU – Council Decision 2001/470/EC, in OJ L
174, 27.6.2001, p. 25 and Decision No 568/2009/EC in OJ L 168, 30.6.2009, p.
35. The creation of this network was a natural step – since it was aimed the direct
communication between courts, it was necessary to have a structure oriented to
help them and considering that the process was not conducted any more by the
central authorities it was necessary to have contact points inside of the judiciary in
order to provide the necessary support (judges or conditions that could grant
'effective liaison with the national judiciary' – see Article 1(2) of the Council
Decision of 28 May 2001 establishing a European Judicial Network in civil and
commercial matters (2001/470/EC), amended by the Decision No 568/2009/EC of
the European Parliament and of the Council of 18 June 2009 amending Council
Decision 2001/470/EC establishing a European Judicial Network in civil and
commercial matters).
In addition, with a view to call the citizens and the legal professionals
to the project of building a new area of Justice, the Network assumed theCarlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 5/15
obligation of providing rigorous and updated information on 'judicial cooperation
in civil and commercial matters in the European Union, on relevant Community
and international instruments and on the domestic law of the Member States, with
particular reference to access to justice'.
8. The intervention of the central authorities was reshaped, becoming
qualified and better articulated but residual. By virtue of the change of logics
that determined the shift of the main role in the judicial cooperation from the
central authorities to the courts and the judicial network, such authorities started
to have a more specialised intervention. Such intervention became qualified since
it was considered necessary where no other solution was available – see Article 3
of Regulation 1206/2001. Their methods of action became more sophisticated
since regular meetings and articulation of proceedings between them were
recognized as necessary – see Articles 53 to 55 of Regulation Brussels II bis.
9. The regulation became the instrument of choice for the EU law
production in civil and commercial matters, for efficacy reasons, in order to reach
the ambitious objectives of the area of justice coming from the Amsterdam Treaty
– due to its general application and the fact of being 'binding in its entirety and
directly applicable in all Member States' – see Article 288 of the TFEU.
The following represent the result of such choice: Brussels I
Regulation, No. 44/2001, on jurisdiction, recognition and enforcement, (from
2015, the Regulation No 1215/2012 of 12 December 2012); European
Enforcement Order Regulation, No. 805/2004; European Order for Payment
Procedure Regulation, No. 1896/2006; European Small Claims Procedure
Regulation, No. 861/2006; Insolvency Regulation, No. 1346/2000; taking of
evidence Regulation, No 1206/2001; service of documents Regulation No
1393/2007; Rome I Regulation, No. 593/2008 (contractual obligations), Rome II
Regulation, No. 864/2007 (non-contractual obligations); Brussels II bis
Regulation, No. 2201/2003 on jurisdiction, recognition and enforcement divorce
and parental responsibility; Maintenance Regulation, No. 4/2009; Rome IIICarlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 6/15
Regulation, No. 1259/2010 (divorce and legal separation), Succession Regulation,
No. 650/2012 and mutual recognition of protection measures in civil matters,
606/2013.
Pending law creation procedures
The law creation on civil matters has had continuing dynamics and
never stopped since the Amsterdam Treaty.
Just looking to the last few years we can find preparatory works on a
wide range of matters like matrimonial property regimes – COM(2011) 126 of 16
March 2011 – property consequences of registered partnerships – COM(2011) 127
of 16 March 2011 – mutual recognition of protection measures in civil matters –
COM(2011) 276 of 18.5.2011 – insolvency proceedings (in amendment of
Council Regulation (EC) No 1346/2000) – COM(2012) 744 final of 12.12.2012,
or a Common European Sales Law – COM(2011) 635 final, and, permanently,
studies, reports and evaluation documents on many themes of this sector of the
EU law: 2012: external evaluation of Regulation N° 1346/2000/EC on Insolvency
proceedings; report from the Commission to the European Parliament, the Council
and the European Economic and Social Committee on the application of Council
Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings; study
on Foreign Law and its Perspectives for the Future at European level; study on the
question of effectiveness of an assignment or subrogation of a claim against third
parties and the priority of the assigned or subrogated claim over a right of another
person; report from the Commission to the European Parliament, the Council and
the European Economic and Social Committee on the application of 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; study concerning
the application of Directive 2003/8/CE of the Council of 27th January, 2003 on
legal aid and the judicial conformity of the national transposition measures; 2011:
Study for an Impact Assessment on a Draft Legislative Proposal on theCarlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 7/15
Attachment of Bank Accounts; 2010: Impact Assessment Study on Community
Instruments concerning matrimonial property regimes and property of unmarried
couples with transnational elements.
B. PROGRAM ON FUTURE DEVELOPMENT OF THE
EUROPEAN LEGAL INSTRUMENTS IN CIVIL AND COMMERCIAL
MATTERS EMERGING FROM THE TREATY ON THE FUNCTIONING
OF THE EUROPEAN UNION (TFEU) WITH A VIEW TO GRANT THE
CORRECT FUNCTIONING OF THE INTERNAL MARKET, THE FREE
MOVEMENT WITHIN THE EU AND THE BUILDING AND
STRENGTHENING OF A COMMON AREA OF JUSTICE
The Treaty on the Functioning of the European Union contains a
program for the civil and commercial area that can give us relevant clues about
the future.
1. From its Article 67(4) we can take that granting access to justice is
a priority so, citizens and legal persons will be entitled to a growing level of rights
and ways of action and entrance in the European Justice system under
construction. We can expect that, considering the existence of digital technology
that can help to surpass the gap between the public authorities and those persons
and the progresses made in many Countries in the field of e-justice (see, for
example, the suppression of the use of paper in first instance in the Portuguese
courts) the access will be increasingly granted through high-tech means and direct
and real time contact.
2. According with the same Article, the principle of mutual
recognition of judicial and extrajudicial decisions in civil matters that imposes
the absolute suppression of the need for a declaration of enforceability and that
moves over any possibility of opposing the recognition of such decisions is going
to keep on being implemented, remaining at the centre of the strategy for this
domain of the EU Law.Carlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 8/15
3. The Treaty proposes the development of the three central themes of
private international law – Article 81(2)(a) and (c):
(a) international jurisdiction;
(b) the applicable law and
(c) the recognition and enforcement of foreign judgments.
But the own TFEU has created a difficulty to the attainment of these
objectives in its Article 81(3) since it declared that the adoption of family law
measures requires unanimity which generates a law creation process full of
blocks and de-characterising concessions.
To surpass this limitation of the possibilities of intervention in family
matters, the procedure of enhanced cooperation seems to be a feasible solution. It
was chosen in the Rome III Regulation on the law applicable to divorce (Council
Regulation (EU) No 1259/2010 of 20 December 2010), in which only fifteen
Member States presently participate. This is not the only area where this path is
was also chosen – see the unitary patent protection Regulations, No 1257/2012
and No 1260/2012.
Anyway, this is a solution that also holds same risks.
Namely, it can determine the creation of two speeds in the
achievement of the European Space of Justice which represents the practical
denial of such idea that corresponds to a project of creation of a common and all-
inclusive area in European Union.
By other side, since family matters are involved in such difficulties, it
can emerge a tendency to prioritise non-family subjects which is susceptible of
generating strong regulation asymmetries.
4. From Article 81(2)(b), (d) and (e) we can expect the development
of the existing rules on procedural and statutory aspects of the judicialCarlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 9/15
cooperation that is service of judicial and extra-judicial documents, taking of
evidence, and access to justice.
Given that these aspects of judicial cooperation are already covered by
the EU Law, we can foresee not the creation of new legal tools but the
development of methods and the correction of negative aspects eventually found
in these domains. In the field of the taking of evidence and service of documents,
it would be recommendable to see the increase of the use of technological means
– especially videoconference, that could be defined as the pattern for the judicial
cooperation which presupposes the full installation of the devices needed in all
Countries, as it happens in Portugal that has such systems in all courts – the
reinforcement of the direct taking of evidence, the direct communication
between courts and the systematic use of informatics for the performance of the
cooperation tasks.
5. Article 81(2)(f) shows us a very important way that, considering the
short and non ambitious terms of the legal formulation, still leaves us far from the
idea of creation of a EU Civil Procedure Code since it is build through the mere
promotion of the compatibility of the rules on civil procedure applicable in the
Member States, where necessary to assure the proper functioning of civil
proceedings.
It is a fundamental intervention. It is through the suppression of the
incompatibilities of the civil procedural rules that it is possible to build the
cooperation mechanics demanded by the common justice envisaged and to create
the conditions needed for the protection of the citizens and the legal persons rights
and, consequently, for the creation of the confidence presupposed by the cross-
border legal relations and the free circulation in the EU.
6. Another area to develop, as pointed by the Treaty, is the alternative
methods of dispute settlement, as results from Article 81(2)(g). The ADRCarlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 10/15
antagonisms resolution processes and techniques can produce swiftness in the
solution of the conflicts, a more accepted and understandable justice, a decrease in
the levels of litigation, a notion of common interest in repairing the social tissue
and, in the end, a more fair and effective common justice system.
7. Finally, the TFEU points out, clearly, a crucial domain of evolution
in which the European Judicial Training Network has a decisive role to perform,
that is the support for the training not only of the judiciary but also of the judicial
staff, as results from Article 81(2)(h).
Without the due training of the legal professionals – particularly
judges and lawyers – it is not possible to expect the changes of procedures,
mentalities and attitudes needed for the creation of the trust and knowledge that is
implied in the free circulation of decisions in civil matters, in the direct
communication and cooperation between courts, in the use of the legal tools of
this thematic area, in the adequate application of the Regulations and, above all, in
the exercise of the rights that emerge from such framework.
This training is also decisive to install the notion that those legal
professional are, in first place, European legal professionals and, just on a second
layer, legal professionals of their own Countries.
So, to widely perform the training of the European legal professionals
in order to prepare them for the European judicial cooperation in civil matters and
to act in the new common space of justice is a must.
C. NEXT RECOMMENDABLE GREAT OBJECTIVES OF THE
EUROPEAN UNION LEGAL INTERVENTION IN CIVIL AND
COMMERCIAL MATTERS
Even outside of such a clear and verbalised plan, we can find some
possible ways ans trends that result from a mix of past experiences, initiated paths
and conscience of the gaps, needs, wishes, dreams and objectives.Carlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 11/15
1. In first place, we can expect the production of isolated legal
instruments that can cover the specific private international law areas that, in spite
of the enormous post-Amsterdam Treaty developments, are still governed by
national rules or that will be considered decisive to grant the cooperation between
the European Courts. This represents the logical, obvious and congruent result of
a continuity procedure.
2. Secondly, it seems recommendable to assure, in such process, the
coherence of the law creation activity and the common, symmetrical and rigorous
interpretation and application of the legal tools available, since there are risks of
loosing harmony. For example, the new Regulation Brussels I – No 1215/2012 of
12 December 2012, on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (recast) – or the Regulation (EU) No
650/2012 in matters of succession abandon the promising route of the absolute
suppression of recognition procedures and exequatur seen in other European
Regulations in Civil and Commercial Matters posterior to the Brussels II bis
Regulation and just sets up full mutual recognition of decisions, authentic
instruments and court settlements.
3. Maybe it is possible to dream with the progressive creation of the
conditions needed for the production, on a medium/long term basis, of a
comprehensive legal structure or a EU Private International Law code
(whatever its structure might be, that is, corresponding to the simple merging of
the existing instruments into one single instrument, a new code, a corrective code,
or a codification with recast). Eventually, such process could start by the merging
of Regulations Rome I and II.
The advantages of that Code could be:
(a) The reduction of the volume of the legislation;
(b) The output of accessibility;
(c) The clarity of the content of the private international lawCarlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 12/15
rules;
(d) A better approach to the citizens and companies with the
consequent diminution of the obstacles to their entrance into
cross-border economical and juridical relationships;
(e) The systematization of the rules under an all-embracing
tool;
(f) The correction of redundancies;
(g) The attainment of a coherent structure of private
international law rules;
(h) The reduction of the costs in cross-border litigation – not
only for the parties but also at the level of the system
functioning expenses;
(i) The simplification of the training of the legal
professionals.
We can, in spite of these obvious advantages, foresee some important
difficulties. The main are:
(j) Eventual scarce political support;
(k) Non coincident perspectives on central notions of private
international law;
(l) Strong differences on the conceptions of society and
private life – for instance in sexual behaviours – with
expression on substantive law, namely in the family domain,
same-sex marriages, registered partnerships and names;
(m) Distinct scope and subject matters of the rules to merge;
(n) More complex legislative process;
(o) Harder process of gradual approval of instruments having
incidence on specific topics, particularly if it is chosen a time
concentrated or simultaneous adoption of such code;
(p) Attainment of substantial agreements on central principles
– general concepts of private international law (e.g. the role of
overriding mandatory law and the application of foreign law);
(q) Present tendency for the enhanced cooperation and the
special positions of United Kingdom, Ireland and Denmark.
4. To make information and direct access to justice tools available to
citizens and business through digital means appears to be an unavoidable task and
a future line of growing.
The wide-spreading of the e-justice mechanisms, the providing of
abundant and all-inclusive information online on the contents of rights and waysCarlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 13/15
to exercising it, the rigorous and user friendly Internet portals, the wide access to
public databases, the logging of online applications, the direct communication
between authorities and citizens through informatics means, the generalization of
the use of video-conference systems and even, eventually, the creation of an
European personal digital identity, namely through a unique digital address for
each citizen and undertaking allowing an effective service of documents, could be
not only expectable but desirable.
D. CHALLENGES
Above all, it seems crucial to prepare the changes having a rigorous
conscience of the main purposes or challenges of the future intervention in the
area of the civil and commercial EU Law. Such challenges are:
1. To call the citizens to the new dynamics of the judicial cooperation in civil
and commercial matters. Without them, all the efforts would be vain and
the objective would not be reached;
2. To avoid the recurrence of rules coming from the co-existence of legal
instruments in converging areas. The repetition, side by side with the
contradiction of rules represents a severe difficulty for the full
comprehension and use of the system and a loss of precious means;
3. To fight complexity that comes from increasing the volume of the EU law
eventually through codification;
4. To harmonise the EU law;
5. To produce accessibility to such law in spite of the referred increase of
volume;
6. To fight the incompatibility of legal systems and to create common
approaches;
7. To provide certainty on the definition of the applicable law;
8. To mitigate the effects on the common area of justice produced by theCarlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 14/15
special position held by the UK, Ireland (decision to opt in is needed), and
Denmark (excluded from this dynamics) that generates conceptual
ruptures and territorial discontinuity – a two-speed Europe –,
fragmentation of the EU framework and loss of coherence and
forseeability of the rulings, moves away and frightens the citizens and
decreases their level of comprehension of the EU law system, generating
phenomenons of ‘forum shopping’ within the EU;
9. To give worldwide territorial scope to some instruments – eg. expanding
effects to non-EU torts, parties, and legal rules;
10. The establishment of minimum procedural standards can lead to the
creation of procedural rules also applicable to non cross-border relations
and of an European procedure code – as it was envisaged in the first
preparatory works of the triptych small claims, European Enforcement
Order and Order for payment procedure and admitted by the proposals of
the Storme working group, presented to the Commission in 1993 – Marcel
Storme (ed.), Rapprochement du Droit Judiciaire de L’Union
européenne/Approximation of Judiciary Law in the European Union,
Martinus Nijhoff Publishers 1994?
E. AREAS THAT NEED TO BE COVERED – IN THE
DOMAINS OF APPLICABLE LAW, INTERNATIONAL JURISDICTION,
AND RECOGNITION AND ENFORCEMENT OF DECISIONS
Making the comparison between the thematic fields already covered
by the EU Law with the needs that we can feel in the everyday activity of the
citizens and the businesses, we can reach some points that represent areas where
the intervention of the European Union legislator seem to be advisable and
expectable. Such areas can be: 1. Trusts and agency; 2. Corporations; 3. Property;
4. Non-marital registered partnerships and similar institutions; 5. Marriage; 6.
Names of natural persons; 7. Adoption; 8. Parentage; 9. Protection of adults; 10.Carlos Manuel Gonçalves de Melo Marinho / Civil Justice in the European Union – past and future 15/15
Status and capacity of natural persons; 11. E-justice and digital access to Justice;
12. European digital identity and service of judicial documents standing on it; 13.
Legal professions; 14. Common Procedural structures; 15. Arbitration; 16. Special
damages and responsibility for the risk; 17. Insurance contracts not included in
Rome I Regulation; 18. Common interim and precautionary measures; 18.
Violation of privacy rights; 19. Mass claim cases, namely consumer collective
redress.
In this field, we can dream together of a New Europe where citizens
will have effective access to Justice and where the geographical conditions will
not influence such access nor limit the free movements of persons and
undertakings and the trustful establishment of legal relations between them.
Here, the citizen is our final motivation.
The dream is our light and path.
Lisbon, 11 November 2013You can also read
