General presentation of the European «procedural» regulations
| Autor | Luís de Lima Pinheiro |
| Cargo del Autor | Professor at the University of Lisbon, School of Law (Faculdade de Direito da Universidade de Lisboa) |
| Páginas | 51-68 |
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I will begin with three introductory remarks.
First, to thank Professor Alegría Borrás and Dr. Carmen Parra for the invitation to give a general presentation on the so-called European «Procedural» Regulations at this International Conference. I consider it an honor, and it is also a good motive to visit this wonderful city.
Second, to express my reservations about designating the Regulations which deal with jurisdiction and recognition of judgments as «procedural».
It is true that international jurisdiction and recognition of foreign judgments are often considered as part of an International Civil Procedure Law, together with pure procedural matters, such as service of documents abroad, taking of evidence abroad and legal aid in international matters. Moreover, rules on international jurisdiction may be deemed part of the Procedure Law and some rules on recognition of foreign judgments concern the procedures involved.
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Nonetheless, the body of rules dealing with international jurisdiction has to a large extent autonomy regarding other procedural rules, presents structural similarities with choice of law rules, and raises many similar problems of interpretation and application.
And many rules on recognition of foreign judgments concern the conditions for the recognition rather than the procedures which may (or may not) be involved in this recognition. They are, in my opinion, substantive rules.
Furthermore, there is a trend towards embracing in the same instruments jurisdiction, recognition of judgments and choice of law and it seems still less acceptable to designate such instruments as «procedural».
I would therefore deem the regulations on jurisdiction and recognition of judgments sources of Private International Law, and confine the designation of International Civil Procedure Law to instruments dealing with pure procedural matters.
As a last remark, I would point out that there are many European instruments dealing with jurisdiction, recognition of judgments and procedural matters, that they are complex and that they lay down different regimes. In a short presentation I cannot go into a detailed examination of all these instruments. I shall focus on the legal basis of these instruments and on the general features of Brussels I and Brussels II bis Regulations, and limit myself to mere references to other Regulations.
The «procedural» regulations have been preceded by the Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, concluded in 1968.
This Convention was based on Article 220 of the original EEC Treaty which obliged the EEC Member states to enter in negotiations «with a view to securing for the benefit of their nationals (...) the simplification of
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formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards».
The Convention adopted was, however, a «double Convention» dealing both with international jurisdiction and the recognition of foreign judgments. This option has been justified by the need to increase the harmonization of laws, provide greater legal certainty, avoid discrimination and facilitate the «free movement» of judgments , which was after all the ultimate objective1.
Each time that the Community was enlarged it was concluded an Accession Convention with the new Member States. These Accession Conventions introduced modifications of different importance in the Brussels Convention.
The unification of the rules on international jurisdiction and mutual recognition of judgments had, therefore, an essentially intergovernmental basis, and was pursued through international conventions concluded by the Member States.
The situation changed with the entry into force of the Amsterdam Treaty, in 1999. This Treaty conferred a certain legislative competence to the EU in matters of Private International Law and International Civil Procedure Law, including international jurisdiction and recognition of foreign judgments (Articles 61(C) and 65 of the EC Treaty).
This competence was granted «in so far as necessary for the proper functioning of the internal market». In practice, however, the Community organs interpreted these provisions in the sense of a generic competence to legislate in those matters, regardless of any effective link with the functioning of the internal market.
In the exercise of this competence many regulations have been adopted and many other have been proposed or planed, envisaging a general communitarization of Private International Law.
On this basis the following Regulations have been adopted:
· Reg. No 1346/2000 on insolvency proceedings
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· Reg. No 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (Brussels II Regulation), already repealed
· Reg. No 1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil and commercial matters, already repealed
· Reg. No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation)
· Reg. No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters
· Reg. No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility and repealing Reg. No 1347/2000 (Brussels II bis Regulation)
· Reg. No 805/2004 creating a European enforcement order for un-contested claims;
· Reg. No 1896/2006 creating a European order for payment procedure
· Reg. No 861/2007 establishing a European Small Claims Procedure
· Reg. No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters and repealing Council Reg. No 1348/2000
· Reg. No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations
Regarding Proposals of Regulations presented by the Commission a mention must be made to the Proposal for a Regulation on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession2.
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With the entry into force of the Treaty of Lisbon, Article 3 paragraph 2 of the EU Treaty states that the Union «shall offer its citizens an area of freedom, security and justice without internal frontiers». This paragraph precedes paragraph 3, which refers to the establishment of the internal market.
The competence of the organs of the EU in Private International Law and International Civil Procedure Law matters has been included in the Title V of the Part Three of the Treaty on the Functioning of the EU dedicated to the so-called «area of freedom, security and justice». The judicial cooperation in civil matters is dealt on Chapter 3, and based on the principle of mutual recognition of judicial and extrajudicial decisions (Article 81 (1)).
This systematization points to the autonomy of the «area of freedom, security and justice», including the judicial cooperation in civil matters, in relation to the internal market3.
Indeed, according to Article 81 (2) of the Treaty, the exercise of the competence in Private International Law and International Civil Procedure Law is no more formally dependent on a necessity for the proper functioning of the internal market. This is just one of the considerations which may be taken into account for that purpose.
The instruments based on this provision are, in principle, adopted by qualified majority in the framework of the ordinary legislative procedure (Article 81 (2) of the same Treaty). An exception is provided for measures concerning family law with cross-border implications which, in principle, shall be established by the Council, acting unanimously after consulting the European Parliament (Article 81 (3) of the same Treaty).
It is also possible that a group of Member States establishes an enhanced cooperation between themselves in these matters, where the objectives of such cooperation cannot be attained within a reasonable period by
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the Union as a whole (Article 20 of EU Treaty and Articles 326 et seq. Of the Treaty on the Functioning of the EU).
For instance, this enhanced cooperation has led, in the field of choice of law, to Reg. No 1259/2010, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.
Meanwhile, the Commission has presented the following Proposals:
· for a Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters4which is designed to replace the Brussels I Regulation
· for a Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes5· for a Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships6· for a Regulation on mutual recognition of protection measures in civil matters7· for a Regulation Creating a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters8.
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The main purposes of the Brussels I Regulation are the unification of the rules of international jurisdiction in civil and commercial matters and to facilitate the...
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