RICERCA ITALIANA     

Judicial cooperation in civil and criminal matters within the European Union. Experiences, results and perspectives.

Università degli Studi di Genova

Abstract

The building up of effective forms of judicial cooperation in civil and criminal matters within the European Union is essential to both the conservation and the development of an area of freedom, security and justice, within which the free movement of persons has to be guaranteed.
In the light of the ongoing European process of integration, the research aims at critically analysing all instruments concerning the exercise of jurisdictional competence and the recognition of judgments in civil and commercial matters (with regard to both the more "traditional" ones, like the 1968 Brussels Convention and the Regulation No.44/2001,and the more recent ones, like Regulations No.1346/2000 on insolvency proceedings; No.1348/2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters;No.1347/2000 on jurisdiction, recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses,replaced by Reg. No.2201/2003;No.1206/2001 on cooperation between Member States' courts in the taking of evidence in civil or commercial matters;No.805/2004 of the European Parliament and of the Council, creating a European Enforcement Order for uncontested claim)judgment.
As to the criminal field, the research aims at examining relatively new forms of judicial cooperation between Member States, such as the joint investigation teams, the 2000 Convention on Mutual Assistance in Criminal Matters, the European judicial network and Eurojust, which, recently tested, provide a significant contribution to the course of criminal procedures, making information and documents available more quickly. Particular attention will be paid to the European Arrest Warrant (which has replaced the previous instruments concerning extradition),especially focusing on the consequences that the implementation of such new mean of cooperation may produce on the guarantees now recognised in the extradition proceeding.
With regard to judicial cooperation in civil matters, the research will also focus on the analysis of the development of the Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations, also known as "Rome II", (underlying every possible deficiency thereof and proposing, if necessary, innovative solutions) and on the proposals of new instruuments (such as, for instance,the conversion into a Community instrument of the 1980 Rome Convention on the law applicable to contractual obligations). The project will also study the interconnections between the instruments of judicial cooperation and those concerning the protection of intellectual property and information technology, in order to understand whether the aims to be attained in this field are such as to merit a regime other than Regulation 44/2001. With regard to the criminal field,the possibility will be examined of introducing mandatory rules on the resolution/prevention of conflicts of national jurisdictions, the eventual development of the discipline of the European Prosecutor, the effects of such new means of cooperation on the protection of the intellectual property and the implementation of the principle of mutual recognition. In the end, the research also aims at comparing civil and criminal experiences, with regard not only to the tools that are already in force, but also to those which are still to be introduced (with an effort to underline whether the means adopted in the criminal field are similar to the civil ones). <<<

Principal Investigator

Sergio Maria CARBONE Università degli Studi di GENOVA

Research Objectives

The primary objective of the proposed research is, as it can be inferred from the title itself, not only the study of the EC instruments of judicial cooperation in both civil and criminal matters that are already existing or to be adopted in the near future,but also the comparison between experiences, results and the possible evolution of such fields.
Thanks to a division of competences and within the scientific autonomy that characterises each Research Unit, (also on the basis of the multisectoral approach of the research), on the one hand, the aim pursued by the local Units belonging to the Universities of Turin and Milan will be to provide an analysis of the current stage of current developments of judicial cooperation in both the civil and criminal fields, highlighting the most significant problems connected with the application of the instruments which have been enacted by the EC institutions within the first and third pillars of the European Union. On the other hand, the Units belonging to the University Cattolica del Sacro Cuore of Milan and to the University of Genoa will analyse some of the proposals presented both in civil and criminal matters in order to investigate ways of improving the mechanisms of judicial cooperation which are now under discussion within the European Union.
More specifically, it has to be said that the objective pursued by the University of Turin is double. In such context, therefore, attention will be paid, not only to the difficulties encountered by Member States in adapting their law to the instruments adopted within the EU third pillar (which, unlike EC regulations, are not directly applicable throughout Member States) but also to the application of such instruments. From this point of view, and with regard to the problem of the protection of human rights arising within the field of judicial cooperation in criminal matters, particular attention will be paid to the procedural guarantees (mainly) provided by the enforcement of the European Arrest Warrant, which replaces the more classical instrument of the extradition between Member States.
With regard to the civil and commercial field, the objective pursued by the University Statale of Milan will be to closely examine existing EC Regulations with particular reference toReg. No.44/2001 and the problems connected with the free movement of Member States' judicial decisions.Therefore, the main aim of the research will be to verify the existence of limits to the movement of judicial decisions within the European area of justice, in the light of the difficulties that have been encountered in giving to foreign measures the same effects they produce in their State of origin and that are due to the differences that the judgments that should be recognised and given effects present in both kind and nature.
Moving now to the Unit belonging to the University Cattolica del Sacro Cuore, its research staff will specifically analyse the problems connected with the protection of intellectual property rights, from the point of view of judicial cooperation, investigating the possibilities of interaction between EC acts on judicial cooperation (especially Reg. No.44/2001) and the field of intellectual property rights, in order to verify whether the policies to be served in this field are such to merit a different regime than Brussels and its progeny concerning jurisdiction and enforcement. A further part of the research will also deal with the impact of judicial cooperation in criminal matters on the protection of IP rights (e.g.: framework decisions on blocking orders and forfeiture and on monetary sanctions).
Finally, objective of the Unit belonging to the University of Genoa will be to examine the suitability of the instruments that are currently in discussion in both civil and criminal fields. With regard to the former field, attention will be paid, in particular, to the Proposal for a Regulation on the law applicable to non-contractual obligations, and, at the same time, an analysis will be carried out of the most important recently launched projects, such as the Green Papers on a European order for payment procedure and on measures to simplify and speed up small claims litigation and on alternative dispute resolution in civil and commercial law.
An effort will be made to provide a critical examination of such a discipline, considering, on the one hand, the opportunity of its adoption and, on the other, the content itself of the relevant provisions taken into consideration. With regard to the field of judicial cooperation in criminal matters, the objective pursued will be not only to investigate the possibility of a gradually more extended application of the principle of mutual recognition within area of justice which is going to become more and more integrated, but also the reduction of the powers that the executing judicial authorities are provided with as well as of the reasons for which recognition and execution of foreigner decisions are denied.In addition, it will be examined the question whether common rules should be adopted in order to either resolve or prevent conflicts of jurisdiction between Member States and, therefore, it will be analysed the opportunity of introducing rules establishing that the authorities of only one Member State are competent to pronounce on cases involving more than one Member State.
Further and more specific explanations of the objectives pursued by the three Units will be provided by par. 2.5 of each Unit's project. <<<

Timescale

24 months

National and international background

The scientific starting point of this research is founded:
a) on the choices made by the communitarian legislator in the field of civil and criminal judicial cooperation (sometimes also comparing such choices under an international law perspective), in order to maintain and develop an area of freedom, security and justice - having particular regard to the freedom of movement of persons - and to guarantee the existence of the fifth freedom, which concerns the movement of judgments.
b) with specific regard to the field of judicial cooperation in criminal matters, on the measures that have already been taken by national legislators (in particular by the Italian one) and which are going to be adopted within the EU, since, as it is well known, the instruments adopted within the third pillar, unlike the EC regulations, are not directly applicable throughout Member States and must be transposed into every national legal system;
c) on the doctrinal contributions which have been listed in the bibliography provided by models A and B of every single unit taking part to the Research;
d) on the decisions of the ECCJ (with particular regard to the ones on judicial cooperation in civil matters, seen that the number of its judgments on criminal judicial cooperation is still exiguous)as well as of national (Italian and foreigner) and international courts (in particular, of the European Court of human rights).
Further and more detailed information on the scientific starting point of the research will be available in par. 2.4 of every B Model ("national and international scientific starting point") provided by the Units taking part to the Research Project. <<<