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8.1.1.  Judicial cooperation in civil matters in the EU

    Judicial cooperation in civil matters is important since in a genuine European area of justice, individuals and businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal and administrative systems in the Member States. The main objective in this area is legal certainty and equal access to justice for all EU citizens, implying easy identification of the competent jurisdiction, clear designation of the applicable law, availability of speedy and fair proceedings and effective enforcement procedures. Procedural rules should respond to broadly the same guarantees, ensuring that people will not be treated unevenly according to the jurisdiction dealing with their case. The rules may be different provided that they are equivalent.

    The European Council of Tampere (15 and 16 October 1999), therefore, endorsed the principle of mutual recognition of judicial decisions and judgments, which is the cornerstone of judicial cooperation in both civil and criminal matters. This principle is now affirmed in Article 67 and elaborated in Article 81 of the TFEU, which states that in order to develop judicial cooperation in civil matters having cross-border implications 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, notably, 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.

    Several EU legal instruments replaced pre-existing Conventions. Thus a Regulation replacing the ''Rome I'' convention stipulates that a contract shall be governed by the law chosen by the parties either expressly or as clearly demonstrated by the terms of the contract or the circumstances of the case [Regulation 593/2008]. A Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which replaced the 1968 Brussels Convention, lays down provisions concerning general jurisdiction and special jurisdiction in matters relating to insurance, consumer contracts, individual contracts of employment and some exclusive jurisdictions [Regulation 1215/2012, last amended by Regulation 2015/281]. It also contains rules on prorogation, examination, admissibility, enforcement of judgments, authentic instruments and court settlements. Other Regulations establish: rules for the mutual recognition of protection measures ordered in a Member State in civil matters [Regulation 606/2013]; and a general framework for activities aiming to facilitate the implementation of judicial cooperation in civil matters [Regulation 743/2002]. This Regulation has the following objectives: encourage such cooperation; improve mutual knowledge of the Member States' legal and judicial systems in civil matters; facilitate the correct application of European instruments in this area; and improve public information on access to justice, judicial cooperation and the legal systems of the Member States.

    Specific Regulations concern: the law applicable to divorce and legal separation [Regulation 1259/2010]; the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for joint children [Regulation 2201/2003]; the recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations [Regulation 4/2009, last amended by Regulation 2015/228]. Procedures exist for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning the jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations [Regulation 664/2009]. The European Union has approved the Hague Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance and the Member States are bound by this Convention [Decision 2011/432 and Convention].

    Common rules apply to: the legal aid and other financial aspects of civil proceedings in cross-border disputes [Directive 2003/8]; the service in the Member States of judicial and extrajudicial documents [Regulation 1393/2007]; and cross-border insolvency proceedings regarding an insolvent debtor’s assets [Regulation 2015/848, last amended by Regulation 2017/1105]. The European order for payment procedure simplifies, speeds up and reduces the costs of litigation in cross-border cases concerning uncontested pecuniary claims [Regulation 1896/2006, last amended by Regulation 2017/1260]. The European Account Preservation Order prevents the subsequent enforcement of the creditor’s claim from being jeopardised through the transfer or withdrawal of funds up to the amount specified in the Order which are held by the debtor or on his behalf in a bank account maintained in a Member State [Regulation 655/2014]. The European Small Claims Procedure, available to litigants as an alternative to the procedures existing under the laws of the is Member States, is intended to simplify and speed up litigation concerning small claims in cross-border cases, and to reduce costs [Regulation 861/2007, last amended by Regulation 2015/2421]. A European enforcement order for uncontested claims allows creditors who have obtained an enforceable decision with regard to a claim that has never been contested by the debtor to proceed directly to its enforcement in another Member State (abolition of exequatur) [Regulation 805/2004]. A Framework Decision established the rules under which a Member State should recognise and execute in its territory a confiscation order issued by a court competent in criminal matters of another Member State [Framework Decision 2006/783]. As a general rule, the law applicable to a non-contractual obligation arising out of a tort/delict is the law of the country in which the damage occurs (Rome II) [Regulation 864/2007]. A directive facilitates access to cross-border dispute resolution and to promote the amicable settlement of disputes by encouraging the use of mediation and by ensuring a sound relationship between mediation and judicial proceedings [Directive 2008/52]. A Regulation defined the jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and created a European Certificate of Succession [Regulation 650/2012]. Procedures exist for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning: the law applicable to contractual and non-contractual obligations [Regulation 662/2009].

    The European judicial network in civil and commercial matters seeks to facilitate judicial cooperation between the Member States both in areas in which existing instruments apply and in those where no instrument is currently applicable. It also aims to devise, progressively establish and update an information system which is accessible to the public. The network is composed of contact points designated by the Member States, and includes central authorities provided for in European instruments, in instruments of international law to which the Member States are party or in rules of domestic law in the area of judicial cooperation [Decision 2001/470]. A uniform procedure administers the request and direct transmission of evidence and proof between the courts of the Member States in civil or commercial matters {Regulation 1206/2001].

    The European Community/Union is a party to the Hague Conference on Private International Law (HCCH), which works for the progressive unification of the rules of private international law [Decision 2006/719]. In this context, it has signed the Convention on Choice of Court Agreements, aimed at promoting party autonomy in international commercial transactions and increasing the predictability of judicial solutions in such transactions [Decision 2009/397].

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