INTRODUCTION INTO INTRODUCTION INTO

PRIVATE INTERNATIONAL PRIVATE INTERNATIONAL

LAW OF THE EUROPEAN LAW OF THE EUROPEAN

UNION UNION

Marko Jovanovic, LL.M.

MASTER IN EUROPEAN INTEGRATIONPrivate International Law in the Context of the

EU Legal StructureUniversity of Belgrade Faculty of Law

Why does the European Why does the European Union need common rules of Union need common rules of Private International Law?Private International Law?

1. Legal Certainty (Foreseeability)2. Suppression of “exorbitant”

rules of jurisdiction 3. Prevention of “forum shopping”4. The system of four European

freedoms cannot properly function without the free movement of court decisions

Historical development of Historical development of the EU Private International the EU Private International Law Law Stage 1 – the period of COORDINATION

Stage II – the period of COOPERATION

Stage III – the period of COMMUNITY ACTION

The period of coordinationThe period of coordination1957-19921957-1992Legal 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 The period of coordination (2)(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 The period of coordination (3)(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 The period of coordination (4)(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 cooperationThe period of cooperation1992-19971992-1997Legal 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 The period of cooperation (2)(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 The period of cooperation (3)(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 The period of community actionaction1997-20071997-2007Legal 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 The period of community action (2)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 The period of community action (3)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 The period of community action (4)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 The period of community action (5)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 The period of community action (6)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 non-contractual obligations (“Rome II” Reg. 864/2007).

Beyond 2007Beyond 2007Treaty 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)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)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 Concept of the European Judicial AreaJudicial AreaPart of the Area of Freedom, Security and

JusticeLack 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 PILSources of EU PILUnified 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 PILSources of EU PILFirst generation of procedural acts

acts on jurisdiction and recognition and enforcement (Brussels I, Brussels II bis)

Second generation of procedural actsacts on judicial cooperation in civil matters (Reg. on service of documents, Reg. on cooperation between MS in taking of evidence)

Third generation of procedural actsacts containing “material” rules of procedure(European payment order, small claims)