Project Blog
We are happy to announce that the project has published a set of Brochures in the native/official languages of the participating States. The project brochure features succint information on the research problem of the EU-EN4s project. The brochures are available at: https://www.pf.um.si/en/acj/projects/pr09-eu-en4s/results/brochure/
Take a look at the English version here: https://pf.um.si/site/assets/files/4981/zgibanka_en.pdf
The beginning of the New Year was marked by an Expert Meeting, held at the University of Central Lancashire (UCLan) in Larnaka, Cyprus. Participants from 10 cooperating Member States arrived to provide valuable insight into ongoing research activities.
Previously, by the end of 2019, partners had conducted National Workshops with lawyers, judges and other partakers in order to identify pressing matters relating to domestic and foreign enforcement titles. At the Expert Meeting, the gathered info was put to good use, where the drafting of upcoming national reports regarding the structure and effects of judgements was most thoroughly discussed. The ultimate aim here is to compare the national reports of each involved State, identify and analyse any differences and tackle identified problems, with a view of strengthening mutual trust. These efforts will later be translated into an International Comparative Assessment.
The effects of res judicata, its personal and objective boundaries, as well as the effect of enforceability under national law, had sparked a lively debate among the experts. The partners had agreed that further research is required in these areas. Accordingly, specified research areas had been assigned. These (inter alia) include the “cause of action” as understood by various jurisdictions, as well as its relevance for rules on lis pendes and related actions; the relationship between the enforcement title and the certificate pursuant to Art. 53 of the Brussels Ia Regulation; the enforcement of notary acts and other authentic instruments; the cross-border enforcement of court settlements; the particularities of res judicata under common law etc.
Additionally, the expert meeting presented a great opportunity for Partners to acquaint themselves with some particularities of enforcing the acquis in Cyprus. In this vein, prof. Stéphanie Laulhé Shaelou, Head of School of Law at UCLan Cyprus introduced all partners to ‘The Application of the Brussels Regulation in Cyprus across the Dividing Line’, which was followed by a short presentation on ‘The right of effective judicial protection as another victim of the financial crisis’, by Dr. Despina Christofi, Lecturer at the School of Law, UCLan Cyprus.
All experts also visited the Supreme Court of Cyprus, where a presentation of the judicial system of the Republic of Cyprus and ongoing legal reforms was given by legal officers of the Supreme Court. The history of the judiciary of the Republic of Cyprus and of the Constitution were then presented by Dr. Klearchos Kyriakides. The day continued with a working lunch with presentations by members of the Cyprus Bar, advocates Achilleas Demetriades, George Z. Georgiou and Christos Konstantinou respectively, while the Honourable Judge George Arestis (ret’d), former judge of the Supreme Court of Cyprus and of the Court of Justice of the European Union, acted as a discussant. The main focus of the working lunch was for experts to get familiarised with and exchange views on current legal issues and challenges pertaining to the enforcement of foreign judgments in Cyprus.
It is expected that preliminary comparative findings of the project will be presented at an International Conference in September. More info to come.
To be clear, the “lady” referred to in the title is the European Union (EU), heading towards her 70s. After a long life of turbulent relations between her Member States (MS) – one of them even decided to leave the family(!) – a lesson can be learned. Be it a personal or a business relationship, mutual trust is crucial. The same holds true for the relationship among MS of the EU. This includes the area of cooperation in civil judicial matters. Let us glance over some new developments in this area.
First, looking back in retrospect – it all began in the area of free-movement of goods with the famous Cassis de Dijon judgement, in which the CJEU ruled that (in general) a product lawfully produced and marketed in one MS should not be precluded from entering the market in all other MS. In the internal market, the EU has and is (up to this date) taking legislative initiative in order to harmonise the MS’ national laws – or, in other words, to create common ground for the proper functioning of the “mutual trust” principle (and thereby the internal market).
The general idea was later transposed to the so-called Area of freedom, security and justice (title V of the TFEU). The underlying mechanism is simple. When a judgement (with an enforcement title as its operative part) is “produced” in one MS, it should be lawfully recognised and enforced in any other MS. Of course, things become more complicated in the Area of freedom, security and justice due to the fact that the fields of Civil procedural law, Enforcement of civil claims, and Criminal law are traditionally closely connected to national sovereignty. Thus, MS retain competence to regulate these matters. The principle of national procedural autonomy articulates said point.
Nevertheless, the EU managed (by taking incremental steps) to create a remarkable legal framework in the area of cooperation in civil matters, which “impersonates” the basic idea of mutual trust. This includes, inter alia, the adoption of the Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast). As stated in Recital nr. 4 of the latter, the differences between national rules governing jurisdiction and recognition of judgements are hampering the sound operation of the internal market. Consequently, it is essential to unify the rules of conflict of jurisdiction, and ensure rapid and simple recognition and enforcement of judgements. What is more, as stipulated in Recital nr. 26 – mutual trust justifies the abolishment of the special procedure (declaration of enforceability – exequatur) prior to enforcement in the MS addressed.
However, is this the end of the story or should our “lady” (the EU) take further steps?
Legal rules on paper seem to facilitate the system of cross-border enforcement and as a result cross-border debt collection. Nevertheless, in practice, problems may arise due to the fact that there are no uniform or harmonised rules on the EU level prescribing of how to draft and structure the enforcement title. If divergence in judgements and enforcement titles is hindering the principle of mutual trust or the concept of free-movement of judgements, this would present a serious problem for the achievement of mutual EU goals.
What action, then, should be taken in connection to this problem? Should (and could) the EU take a step to harmonise (or perhaps even unify) the structure of national judgements and enforcement titles in civil matters? At the first glance, this seems as a rather intrusive step intervening with the national sovereignty. To exemplify, a new regulation would be adopted on the EU level, prescribing that the judgement and the enforcement title should be uniformly structured – in all judgements delivered by EU Member States’ national courts – in the manner prescribed therein. As a result, some of the MS might be forced to change their centuries long lasting legal customs and traditions in connection to drafting their judgements. We would enter an era of “supra-national” (EU) judgements and enforcement titles in civil matters.
Yet, intrusive as it may seem at the first glance – it might be possible to implement the idea to a certain extent. The EU is known for its process of trying to find a “common denominator” among the MS. For instance, a remainder of such a process can be found in the third paragraph of art. 6 TEU, where it is written (in connection to fundamental rights) that the constitutional traditions common to the Member States (emphasis added), shall constitute general principles of EU law.
By the same token, a detailed analysis of MS’ enforcement titles and judgement’s structure in civil matters could provide us with the “enforcement title and judgement elements common to the Member States in civil matters”. Therefore, the common denominator would be found also in this (in comparison to fundamental rights and principles) rather “legally technical area”.
Taking a step even further – after finding the common elements of enforcement titles – should (and could) the EU take legislative initiative in order to harmonise rules on enforcement titles elements and structure?
On the one hand, it is evident, that the EU itself (art. 67 TFEU) recognises that the constituted Area of freedom, security and justice shall respect the fundamental rights and the different legal systems and traditions of the Member States (emphasis added by the author). On the other hand, the EU in art. 81. TFEU envisioned that the cooperation in civil matters might also include the adoption of measures for the approximation of the laws and regulations of the Member States.
Therefore, it is debatable whether the possibility (legal basis) for further approximation of laws exists. It will be up to the MS and the EU as a whole to reach the required consensus, most importantly, between the legal experts, scholars and politicians. They will decide whether the EU (“our lady”) is prepared to take the next step. In case the latter would further strengthen the realisation of the mutual trust principle and the functioning of the internal market, my recommendation would be: go for it!
Aljoša Polajžar, master’s student, Faculty of Law, University of Maribor