“It’s all about trust, my lady – are you ready to take the next step?”

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

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