Civil Justice in the European Union past and future

Transcription

1 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 Its commands were initially developed by and also essential document the Presidency Conclusions of the Tampere European Council of 15 and 16 October 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:

2 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 in

3 Carlos 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 but

4 Carlos 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, , p. 25 and Decision No 568/2009/EC in OJ L 168, , 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 the

5 Carlos 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 III

6 Carlos 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 insolvency proceedings (in amendment of Council Regulation (EC) No 1346/2000) COM(2012) 744 final of , 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 the

7 Carlos 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.

8 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 allinclusive 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 judicial

9 Carlos 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 crossborder 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 ADR

10 Carlos 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.

11 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 law

12 Carlos 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 ways

13 Carlos 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 the

14 Carlos 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.

15 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 2013