19. Further Developments in the Field of Judicial Co-operation as regards Family Law in EU Countries.
Under Article 65 of the Treaty Establishing the European Community (consolidated version after the Treaty of Amsterdam, signed on 2 October 1997, in force since 1 May 1999, ex Article 73m) the European Union can take measures in the field of judicial co-operation in civil matters having cross-border implications; these provisions shall include:
(a) improving and simplifying:
(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.
According to Article 66 of the same Treaty (ex Article 73n) the Council, acting in accordance with the procedure referred to in Article 67 (61), shall take measures to ensure co-operation between the relevant departments of the administrations of the Member States in the above mentioned areas, as well as between those departments and the Commission.
Under Article 2 of the Treaty on European Union (Treaty of Maastricht, consolidated version after the Treaty of Amsterdam, signed on 2 October 1997, ex Article B) the Union shall set itself, among other things, the objective "to maintain and develop the Union as an area of freedom, security and justice."
In the general framework set forth by these provisions, the European Council and the European Commission drafted in 1999 an "Action Plan (.) on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice" (62). During the same year the European Council held a special meeting on 15 and 16 October 1999 in Tampere (Finland) on the creation of an area of freedom, security and justice in the European Union. According to the conclusions issued at the end of this meeting, the European Council is determined to develop the Union as an area of freedom, security and justice by making full use of the possibilities offered by the Treaty of Amsterdam. It will place and maintain this objective at the very top of the political agenda. It will keep under constant review progress made towards implementing the necessary measures. The above mentioned conclusions invite the Commission to make a proposal for an appropriate scoreboard to that end. The European Council will hold a full debate assessing progress at its December meeting in 2001.
Among the topics dealt with in the Tampere conclusions we can mention the recommendations concerning a "Better access to justice in Europe" (points 29 and 30), according to which European Council invites the Commission, in co-operation with other relevant fora, such as the Council of Europe, to launch an information campaign and to publish appropriate "user guides" on judicial co-operation within the Union and on the legal systems of the Member States. It also calls for the establishment of an easily accessible information system to be maintained and up-dated by a network of competent national authorities.
The European Council also invites the Council, on the basis of proposals by the Commission, to establish minimum standards ensuring an adequate level of legal aid in cross-border cases throughout the Union as well as special common procedural rules for simplified and accelerated cross-border litigation on small consumer and commercial claims, as well as maintenance claims, and on uncontested claims. Alternative, extra-judicial procedures should also be created by Member States.
Points 33 and 34 of the conclusions of meeting in Tampere deal with the "Mutual recognition of judicial decisions," by asserting that "Enhanced mutual recognition of judicial decisions and judgements and the necessary approximation of legislation would facilitate co-operation between authorities and the judicial protection of individual rights." The European Council therefore "endorses the principle of mutual recognition which, in its view, should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union. The principle should apply both to judgements and to other decisions of judicial authorities.
In civil matters the European Council calls upon the Commission "to make a proposal for further reduction of the intermediate measures which are still required to enable the recognition and enforcement of a decision or judgement in the requested State. As a first step these intermediate procedures should be abolished for titles in respect of small consumer or commercial claims and for certain judgements in the field of family litigation (e.g. on maintenance claims and visiting rights). Such decisions would be automatically recognised throughout the Union without any intermediate proceedings or grounds for refusal of enforcement. This could be accompanied by the setting of minimum standards on specific aspects of civil procedural law.
Finally, the meeting in Tampere has dealt with the issue of a "Greater convergence in civil law." According to these conclusions (see points n° 38 and 39) the European Council invites the Council and the Commission "to prepare new procedural legislation in cross-border cases, in particular on those elements which are instrumental to smooth judicial co-operation and to enhanced access to law, e.g. provisional measures, taking of evidence, orders for money payment and time limits." As regards substantive law, an overall study is requested "on the need to approximate Member States' legislation in civil matters in order to eliminate obstacles to the good functioning of civil proceedings." The Council should report back by 2001.
These conclusions clearly show the path the European Authorities want to follow in the next years, even though we know that it will not be an easy task. Tampere conclusions have already stirred sharp criticism especially by those "Common Law fans" who are fearing that such steps could lead to Britain's legal system being merged or subsumed by the different system based on Roman law (63). On the other hand, many Civil Law scholars are fearing that the continental system-based on Roman, French and German law-could be submerged and "defeated" for its complexity, in the "competition" with the "simplicity" of the Common Law system (64). Nonetheless, the Council keeps on drafting proposals for Council Regulations in the field of judicial co-operation, thus clearly showing its intentions to outline the framework of a single European "Judicial Space" not only in criminal, but also in civil matters (65).
20. Proposals for Council Regulations in the Fields of Civil Matters and Family Law.
First of all, let me mention on this subject the "Proposal for a Council Regulation (EC) on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters," presented by the Commission on 14 July 1999 (66).The purpose of this proposal for a Regulation is to uniformise the rules of private international law in the Member States relating to jurisdiction and to improve the recognition and enforcement of judgements in civil and commercial matters. It intends to replace and update the Brussels Convention of 1968 and the Protocol to it (67), with a view inter alia to take account of new forms of commerce which did not exist in 1968. The effect of incorporating the revision in a Community instrument will be that the new rules enter into force on a well-known, uniform and not-too-distant date (68).
As what concerns legal basis of such a proposal, the subject-matter covered by the Convention is now within the ambit of Article 65 of the Treaty; the legal basis for this proposal is Article 61(c) of that Treaty. The form chosen for the instrument-a regulation-is warranted by a number of considerations. The Member States cannot be left with the discretion not only to determine rules of jurisdiction, the purpose of which is to achieve certainty in the law for the benefit of individuals and economic operators, but also the procedures for the recognition and enforcement of judgements, which must be clear and uniform in all Member States. Moreover, transparency is a vital objective in this context; it must be possible to come to an immediate uniform understanding of the rules applicable in the Community without the need to seek the provisions of national law that transpose the content of the Community instrument, bearing in mind that national law will very often be foreign to the plaintiff. And opting for a Regulation enables the Court of Justice to ensure that it is applied uniformly throughout the Member States. The instrument falls to be adopted by the procedure of Article 67 of the Treaty, which provides that, during a transitional period of five years, the Council is to act unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament (69).
As far as family law is concerned, I'll finally mention the Proposal for a Council Regulation (EC) on Jurisdiction and the Recognition and Enforcement of Judgements in Matrimonial Matters and in Matters of Parental Responsibility for Joint Children, presented by the Commission on 4 May 1999 (70).
The Explanatory Memorandum of this act remarks that by Article 2 of the Treaty on European Union, the Member States set themselves the objective of maintaining and developing the Union as an area of freedom, security and justice, in which the free movement of persons is assured and litigants can assert their rights, enjoying facilities equivalent to those they enjoy in the courts of their own country. To establish such an area the Community is to adopt, among others, the measures relating to judicial co-operation in civil matters needed for the sound operation of the internal market. Reinforcement of judicial co-operation in civil matters, which many believe has developed too slowly, represents a fundamental stage in the creation of a European judicial area, which will bring tangible benefits for every Union citizen. The sound operation of the internal market creates a need to recognise and enforce judgements in matrimonial matters and in matters of parental responsibility. To this end, rapid procedures and legal certainty are of the essence at a time when the increasing frequency of family relations between persons having different nationalities or residing in different Member States inevitably leads to a growth in litigation.
The need to draw up a Convention extending the 1968 Brussels Convention to matrimonial matters, initially excluded from its scope, was under consideration in the European Union for a long time. At its meeting in Brussels on 10 and 11 December 1993 the European Council considered that the entry into force of the Treaty opened up new prospects for the European citizen, requiring additional work to be carried out in respect of certain aspects of the citizen's family life. Following the meeting of the European Council on 10 and 11 December 1993, the Greek Presidency circulated a questionnaire to the Member States to identify the general outline of what the Convention should contain. In the light of the replies received, a synthesis was drawn up and used as a basis for the instruction to draw up a draft convention given by the European Council in June 1994. In the second half of 1994 the German Presidency presented a draft convention covering only divorce, legal separation and marriage annulment. The decision was subsequently taken to include parental responsibility for the children of both spouses within the scope of the convention.
As the Convention of 28 May 1998 (Brussels II) was not ratified before the Amsterdam Treaty entered into force (on 1 May 1999), its provisions were not applicable, should the Convention not be ratified by States. Transposing it into a Community instrument will have the effect, among others, of ensuring that it enters into operation and that it is in force on the same early date, known to all. That's why the Commission has incorporated the substance of the Convention in the proposal for a Regulation, taking advantage of the new provisions of the Treaty of Amsterdam (71). The purpose of this proposal for a Regulation is therefore to uniformise the rules of private international law in the Member States relating to jurisdiction and to improve the recognition and enforcement of judgements in relation to dissolution of the marriage link. It replaces the Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Matrimonial Matters (Brussels II), while ensuring continuity in the results of the negotiations.
The subject-matter covered by the Convention is now within the ambit of Article 65 of the Treaty; the legal basis for this proposal for a Directive is Article 61(c) of that Treaty. The form chosen for the instrument-a regulation-is warranted by the need to apply strictly defined and harmonised rules to jurisdiction and the recognition and enforcement of judgements, for otherwise the cross-border recognition of judgements will simply not work. These rules constitute a set of precise, unconditional provisions that are directly and uniformly applicable in a mandatory way and, by their very nature, require no action by the Member States to transpose them into national law. The instrument falls to be adopted by the procedure of Article 67 of the Treaty, which provides that, during a transitional period of five years, the Council is to act unanimously on a proposal from the Commission or on the initiative of a Member State and after consulting the European Parliament (72).
Like the Convention it is to replace, the Regulation fills a gap in the application of the 1968 Brussels Convention, Article 1 of which expressly excludes matters relating to the law of persons; it takes over its essential structure and most of its fundamental principles. The Regulation seeks to:
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(61) Article 67 of the Treaty Establishing the European Community (Consolidated Version after the Treaty of Amsterdam, signed on 2 October 1997, ex Article 73o) provides for that:
(63) The U.K. Home Secretary was adamant that Britain would oppose such plans. Jack Straw said that it was "neither possible, desirable or necessary to uproot centuries of tradition which lie behind our different legal systems". He dismissed as "nonsense" the idea that there is a "hidden agenda" to do so; see on these topics Democracy Movement, Corpus Juris Update, reporting an article published by The Times, October 16th, 1999, at the following URL: <http://freespace.virgin.net/c.mowbray/Juris.htm>; for a quite opposite point of view see Kriegk, La gestion des conflits internationaux en matière civile : de la communauté des sources à l'harmonisation des normes ?, paper presented during the meeting of the European Association of Judges held in Taipei (Taiwan) on 14 November 1999.
(64) See Schroth, Zunehmend isoliert, in Frankfurter Allgemeine Zeitung, 2. Dezember 1999, Nr. 281, p. 10: "Textbücher, Gerichtsentscheidungen und Fallsammlungen aus dem angloamerikanischen Recht sind für europäische Benutzer leichter verständlich als viele deutsche Werke. Dort lautet die Devise 'simplicity'. Charakteristisch hierfür sind eine einfache Sprache, Übersichtlichkeit und wenige Fußnoten. Im Vordergrund steht die Verständlichkeit, nicht wissenschaftlicher Tiefgang. Gesetze und Vertragstexte mögen wegen geringer Abstraktionshöhe länger sein, sie sind aber leichter verständlich. In Deutschland dagegen gilt bislang jede neue Norm als rechtsstaatlicher Fortschritt, während die erfolgreiche Normvermeidung kaum wahrgenommen wird. Die Selbstisolierung des deutschen Rechts beginnt schon beim juristischen Studium, sie wird somit erlernt. Nur etwa fünf Prozent der deutschen Jurastudenten verbringen einen Teil des Studiums im Ausland. Die verfügbaren Stipendien für Auslandsaufenthalte werden nicht ausgeschöpft. Umgekehrt nimmt das Interesse ausländischer Studenten an einem deutschen Jura- oder Aufbaustudium ab. (...) Es muss Gründe geben, weshalb die Tendenz zur Selbstisolierung offenbar gerade die deutsche Rechtsordnung trifft. Die sprachliche Uberfrachtung ist nicht etwa nur mit der Komplexität der zu regelnden Sachverhalte zu erklären, denn die benachbarten Rechtsordnungen stehen vor den gleichen Schwierigkeiten. Die dogmatische Struktur des deutschen Rechts gilt heute als Grund fiir die abnehmende Außenwirkung des deutschen Rechts. Diese Diagnose überzeugt aber nicht. Gerade in einem kodifizierten Rechtssystem hat die Dogmatik eine grundlegende Bedeutung, sichert sie doch die gleichmäßige, voraussehbare und normgetreue Rechtsanwendung. Zugleich erlaubt sie eine sprachliche Vereinfachung, die das Normverständnis und die Normbefolgung fördert. Ein Beispiel dafür ist das Bürgerliche Gesetzbuch. Die heutige Gesetzgebung, Rechtsprechung und Literatur gefährden das dogmatische Niveau durch ihre Neigung zu Einzelfallregelung und Interessenjurisprudenz, die ihrerseits einen Hang zur komplexen Rechtfertigungssprache nach sich ziehen. Auf diese Weise entstehen Gedankengebäude, die für den ausländischen Betrachter nicht mehr zugänglich sind und folglich nicht in die internationale Diskussion einfließen können."
(65) On this topic see for instance De Pauli, La convenzione di Bruxelles del 1968 nell'interpretazione giurisprudenziale e lo spazio giuridico europeo, in La cooperazione giudiziaria nell'Europa dei cittadini: situazione esistente - prospettive di sviluppo, in Speciale Documenti Giustizia, Roma, 1996, c. 86-90.
(66) COM(1999) 348 final 99/0154 (CNS).
(67) On 27 September 1968, the six Member States of the European Economic Community concluded a Convention on jurisdiction and the enforcement of judgements in civil and commercial matters (the Brussels Convention) on the basis of Article 293(4) (formerly 220(4)) of the EEC Treaty. A Protocol concerning the interpretation of the Convention by the Court of Justice of the European Communities was signed in 1971. The Convention and the Protocol, which are part of the Community acquis, have been extended successively to all the new Member States. The Brussels Convention was also taken as a model for the drafting of a similar Convention between the Member States and the States belonging to the European Free Trade Association - the Lugano Convention - signed on 16 September 1988. At its meeting on 4 and 5 December 1997 the Council instructed an ad hoc working party composed of representatives of all the Member States and the EFTA States parties to the Lugano Convention, with observers from various sources, to undertake work on the parallel revision of the Brussels and Lugano Conventions. The Commission presented a proposal for a Convention to replace the Brussels Convention on the basis of Article K.3(2) of the Treaty on European Union. The proposal has been presented to the European Parliament, which has not yet given its Opinion, and to the Council. Work continued on the basis of Article 293(4) (formerly 220) of the EC Treaty, the Commission being closely involved, until the Amsterdam Treaty entered into force on 1 May 1999. On 28 May, the Council gave its political agreement on the outcome of the work done by the ad hoc working party.
(68) The Brussels Convention, as amended following the accession negotiations with Austria, Finland and Sweden, has not yet entered into force for all the Member States as only a minority of them have ratified it. But the Lugano Convention, to which non-member States are parties, cannot be taken over in the same way.
(69) The new Title IV of the EC Treaty, which applies to the matters covered by this proposal for a Directive, is not applicable in the United Kingdom and Ireland, unless they "opt in" in the manner provided by the Protocol annexed to the Treaties. At the Council meeting (Justice and Home Affairs) held on 12 March 1999, these two Member States announced their intention of being fully associated with Community activities in relation to judicial co-operation in civil matters. It will be for them to embark on the procedure of Article 3 of the Protocol in due course. Title IV of the EC Treaty is likewise not applicable in Denmark, by virtue of the relevant Protocol. But Denmark may waive its opt-out at any time. Denmark has so far given no notice of its intention of embarking on the procedure of Article 3 of the Protocol.
(70) COM(1999) 220 final 99/0110 (CNS).
(71) See above, note 51.
(72) Same remarks of note 67 apply to this Proposal, as far as the U.K., Ireland and Denmark are concerned.