| Author (Person) | Davies, Eric | ||||||||||||||||||||||||
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| Publisher | ProQuest Information and Learning | ||||||||||||||||||||||||
| Series Title | In Focus | ||||||||||||||||||||||||
| Series Details | 13.5.02 | ||||||||||||||||||||||||
| Publication Date | 12/05/2002 | ||||||||||||||||||||||||
| Content Type | News, Overview, Topic Guide | In Focus | ||||||||||||||||||||||||
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The creation of a 'European judicial area' has been brought a step closer by a number of recent developments concerning civil and commercial law. On 3 May, the Commission adopted a proposal on EU-wide recognition of family law rulings to tackle child abduction and also launched a consultation on the law applicable to non-contractual obligations ('Rome II'). A few weeks earlier, on 19 April, it published a green paper on alternative dispute resolution, and on 22 March the Commission adopted a recommendation for a Council Decision concerning the adoption of the new Lugano Convention. Background The European judicial area or 'area of justice' is part of a broader 'area of freedom, security and justice' whose creation was agreed by EU leaders at a special meeting of the European Council in Tampere, Finland, on 15-16 October 1999. The Commission's Scoreboard on progress towards the creation of an area of freedom, security and justice states that:
The area of justice is based on the principle of mutual recognition, with Member States agreeing to recognise each other's civil and criminal law procedures, rather than on the harmonisation of legal systems. At the time the Treaty of Amsterdam was signed, the then European Commissioner responsible for justice and home affairs, Anita Gradin, stated that harmonisation of the Union's legal systems 'will not happen in my lifetime' (see Cooperation in this area is not a new phenomenon: common standards on jurisdiction and the enforcement of judgements in civil and commercial matters were agreed in the Brussels I Convention, signed in 1968 by the six original Member States of the European Economic Community. However, increasing ease of movement in the EU - due to the impact of both the Single European Market and the Schengen Agreement - has given rise to more and more "cross-border" legal problems. The fact that each of the Union's Member States has its own legal system means that there is significant scope for problems when disputes involve more than one of them. For example, it is not always easy to decide in which Member State a case should be tried. When a judgement is made in one Member State, it can be difficult to ensure that it is applied elsewhere. Differences in language and legal procedures can result in undue delays when documents have to be transferred between courts in the different Member States. It was therefore during the 1990's that significant moves were made towards increasing judicial cooperation. The 1993 Treaty on European Union brought judicial cooperation under the Union's 'Pillars', based on a system of intergovernmental cooperation. In October 1996, the Commission launched the Grotius programme to promote judicial cooperation in the area of civil law. Initially funded for the period 1996-2000, it was extended by a year and renamed Grotius-civil. The Treaty of Amsterdam, which came into force on 1 May 1999, transferred judicial issues into the 'first pillar', based on the Community legal system. However, the Treaty also gave Member States the right to draft legislation in the area of justice - a unique situation in the EU, where that responsibility normally rests with the Commission. Giving Member States that right has, according to some commentators, resulted in the system 'snarling up' under the pressure of Member States 'constantly drafting new plans' (see Other concerns have also been expressed about the ability of the EU to forge its 'area of justice'. Following riots in Genoa at the G7/G8 summit in July 2001 (where the EU was represented by the Belgian Presidency and the European Commission), the Government of Italy was criticised over the treatment of non-Italian protestors arrested during the riots. A spokesman for the UK-based organisation Fair Trials Abroad said that the EU's efforts to create an area of freedom, security and justice had been 'seriously undermined' and that the failure of the Italian legal system to treat a large group of fellow Europeans fairly could result in the area of justice being 'set back a decade ... perhaps longer' (see Recent initiatives Despite the problems and concerns outlined above, initiatives continue to be taken with the aim of improving cooperation between the Member States in matters of civil law. Four such initiatives launched within the last two months are summarised below:
One of the main aims of this proposal, adopted by the Commission on 3 May 2002, is to discourage the growing problem of child abduction in the EU. Announcing the initiative, António Vitorino, European Commissioner for Justice and Home Affairs, said: 'I hope these measures will prevent hundreds of children from suffering distress and disruption in custody cases between parents from different EU countries.' The proposal builds on a number of previous initiatives in this area:
The Regulation proposed on 3 May would establish a mechanism for returning abducted children, based on cooperation between the courts and authorities in the Member States. The final decision in a case would be taken by a court in the Member State where the child normally resided prior to the abduction. However, if it were considered that the abducted child would be endangered by being returned, a court in the Member State to which the child had been abducted could decide not to return the child. Children would have the right to maintain contact with both parents.
Also on 3 May 2002 the Commission published an initial draft of a proposed Regulation intended to ensure that courts in all EU Member States apply the same law when dealing with cross-border disputes on non-contractual obligations (Consultation on a preliminary draft proposal for a Council Regulation on the law applicable to non-contractual obligations). There are currently no common rules concerning non-contractual obligations in the EU, and such cases are increasingly prone to the phenomenon of 'forum shopping' - that is, they are brought before the courts of whichever Member State has laws thought to favour the party bringing the case. The Commission's initiative is particularly concerned with questions of civil liability where damage has been caused to another party (e.g. in cases of pollution or defective products). Speaking at the launch of the consultative process - which ends on 15 September - Commissioner Vitorino said: 'As long as the solution of disputes in such an important matter is subject to differences from one Member State to another for the mere reason that their courts apply different laws, there will be no genuine area of justice in Europe.' (The law applicable to contractual obligations is covered by the 1980 Rome Convention on the law applicable to contractual obligations - 'Rome I'; the new proposal is therefore known popularly as 'Rome II').
The Commission's Green Paper on alternative dispute resolution in civil and commercial law COM (2002) 196 [pdf] was published on 19 April 2002. It is intended 'to initiate a broad-based consultation of those involved in a certain number of legal issues which have been raised as regards alternative dispute resolution in civil and commercial law'. Alternative Dispute Resolution (ADR) has become a political priority for the EU, particularly in the context of the information society, where Online Dispute Resolution (ODR) is now recognised as a useful way of settling cross-border disputes. The Green Paper - which defines ADR as 'out-of-court dispute resolution processes conducted by a neutral third party, excluding arbitration proper' - raises a number of questions about ADR processes, including 'ADR clauses in contracts, limitation periods, confidentiality constraints, the validity of consent given, the effectiveness of agreements generated by ADR processes, the training of third parties, their accreditation and the rules governing their liability.' The deadline for responses to the Green Paper is 15 October 2002.
In March 2002 the European Commission adopted a recommendation for a Council Decision authorising the opening of negotiations with a view to adopting the new Lugano Convention. Under the Convention, the provisions of Regulation (EC) No 44/2001 (known as 'Brussels I') will apply throughout the EU, Poland and the members of EFTA (Iceland, Liechtenstein, Norway, Switzerland). Brussels I concerns the EU Member States' recognition and enforcement of civil and commercial rulings. (The current Lugano Convention was signed in 1988; since then, the Treaty of Amsterdam has changed the way in which issues of judicial cooperation are handled by the EU Member States). Further information within European Sources Online:
Further and subsequent information on the subject of this In Focus can be found by an 'Advanced Search' in European Sources Online by inserting 'judicial area', 'area of justice' or other appropriate phrase in the keyword field. Further information can be seen in these external links: Eric Davies The creation of a 'European judicial area' has been brought a step closer by a number of recent developments concerning civil and commercial law. |
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| Subject Categories | Justice and Home Affairs | ||||||||||||||||||||||||
