Transcript INTRODUCTION INTO PRIVATE INTERNATIONAL LAW OF THE

INTRODUCTION INTO PRIVATE
INTERNATIONAL LAW OF THE
EUROPEAN UNION
Marko Jovanovic, LL.M.
MASTER IN EUROPEAN INTEGRATION
Private International Law in the Context of the EU Legal
Structure
University of Belgrade Faculty of Law
Why does the European Union
need common rules of Private
International Law?
1.
2.
3.
4.
Legal Certainty (Foreseeability)
Suppression of “exorbitant” rules of
jurisdiction
Prevention of “forum shopping”
The system of four European freedoms
cannot properly function without the
free movement of court decisions
Historical development of the EU
Private International Law

Stage 1 – the period of
COORDINATION

Stage II – the period of
COOPERATION

Stage III – the period of
COMMUNITY ACTION
The period of coordination
1957-1992

Legal basis - Article 220 of the Treaty
establishing the European Economic
Community (1957):
“Member States shall, so far as is
necessary, 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 period of coordination (2)
Brussels Convention on Jurisdiction
and Recognition and Enforcement of
Judgments in Civil and Commercial
Matters (1968)

drafting history

multilateral convention concluded
under the rules of public international
law

“double” convention
The period of coordination (3)

Luxembourg Protocol (1971)
- supplements the Brussels Convention
- confers the authority of interpretation
of the Brussels Convention to the
European Court of Justice
The period of coordination (4)
Rome Convention on the Law
Applicable
to
Contractual
Obligations (1980)

multilateral convention concluded
under the rules of public international
law

unification of conflict-of-laws rules in
the matter of contractual obligations
The period of cooperation
1992-1997

Legal basis – Article K.1 of the Treaty
establishing the European Union (1992):
“For the purposes of achieving the objectives of the
Union, in particular the free movement of persons,
and without prejudice to the powers of the
European Community, Member States shall regard
the following areas as matters of common
interest:
(…)
6. judicial cooperation in civil matters;
(…)”
The period of cooperation (2)
Judicial cooperation in civil matters is
placed under the “third pillar”
 Sources of law still do not form part of
the EC legislation
 Great ambition to continue the
harmonization process, yet modest results

The period of cooperation (3)
Unsuccessful projects:
1. Convention on Insolvency Proceedings (1995);
2. Convention on the Service of Process (1997);
3. Convention on the Service of Judicial and
Extrajudicial Documents in Civil and
Commercial Matters (1997)
4. Convention on Jurisdiction and Recognition
and Enforcement of Judgments in Matrimonial
Matters (1998)

The period of community action
1997-2007

Legal basis – Article 65 of the Treaty
establishing the European Community
(1997):
“Measures in the field of judicial cooperation in
civil matters having cross-border implications, to
be taken in accordance with Article 67 and in so
far as necessary for the proper functioning of the
internal market shall include: (...)
The period of community action (2)
“(…) a) improving and simplifying:
- the system of cross-border service of
judicial and extra-judicial documents
- cooperation in the taking of evidence
- recognition and enforcement of
decisions in civil and commercial cases,
including decisions in extra-judicial cases;
(…)”
The period of community action (3)
“(…) b) promoting the compatibility of the
rules applicable in the Member States
concerning the conflict of laws and of
jurisdictions;
c) eliminating obstacles to the good
functioning of civil proceedings, if necessary
by promoting the compatibility of the rules on
civil procedure applicable in the Member
States.”
The period of community action (4)
Transposition of the competence for the
matters of private international law from
the third to the first pillar
 Progressive transformation of PIL
legislation into EC legislation
 Creation of the “European Judicial Area”

The period of community action (5)

Legislative activity of the EC in the field of
Private International Law (procedure):
- Regulation on jurisdiction and recognition and
enforcement of judgments in civil and
commercial matters (“Brussels I” Reg. 44/2001);
- Regulation concerning jurisdiction and the
recognition and enforcement of judgments in
matrimonial matters and the matters of
parental responsibility (“Brussels II bis Reg.
2201/2003)
The period of community action (6)

Legislative activity of the EC in the field of
Private International Law (conflict of
laws):
- Regulation on the law applicable to
contractual obligations (“Rome 1” Reg.
593/2008);
- Regulation on the law applicable to noncontractual obligations (“Rome II” Reg.
864/2007).
Beyond 2007

Treaty on the Functioning of the
European Union – Art. 81(Judicial
Cooperation in Civil Matters):
“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.
Beyond 2007 (2)
For the purposes of paragraph 1. 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;
Beyond 2007 (3)
c) the compatibility of the rules applicable in the
MS 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 ADR methods;
h) support for the training of judiciary and judicial
staff.”
Concept of the European Judicial
Area
Part of the Area of Freedom, Security and
Justice
 Lack of definition
- judicial side of the internal market?
- legal framework (civil and criminal)
that facilitates the functioning of the
system of four freedoms
 Lack of precise legal meaning of the term
“area”
 “Area” vs. “Territory”

Sources of EU PIL
Unified conflict of law rules
- Rome I (contracts)
- Rome II (non-contractual obligations)
- Rome III? (divorce and legal separation)
 Unified rules of international civil
procedure
- 3 generations

Sources of EU PIL

First generation of procedural acts
acts on jurisdiction and recognition and
enforcement (Brussels I, Brussels II bis)

Second generation of procedural acts
acts on judicial cooperation in civil matters
(Reg. on service of documents, Reg. on
cooperation between MS in taking of evidence)

Third generation of procedural acts
acts containing “material” rules of procedure
(European payment order, small claims)