RICERCA ITALIANA     

Research program

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

University Co-ordinator

Università degli Studi di GENOVA - DIRITTO PRIVATO, INTERNAZIONALE E COMMERCIALE "G. L. M. CASAREGI" - GENOVA(GE)

Research Unit Leader

Sergio Maria CARBONE

Description

On the basis of the state of the art, as it has been explained in paragraph 2.4, this research aims to analyse the most recent developments and, above all, every possibility of evolution of judicial cooperation in civil as well as in criminal matters: such an objective will be pursued by constantly comparing all the choices made within those fields and underlying how judicial cooperation in both matters contributes, or, at least, should contribute, to improve free movement of persons within a common area of freedom, security and justice which is becoming more and more effective.
To that end, which, at the same time, is the ratio itself of judicial cooperation in civil and criminal matters, the analysis of the rules that are already applicable and of those that are still to be adopted will be carried out by the members of the research unit of the University of Genoa with a view to the gradual creation of a common European area of justice within which coordination of jurisdictions is guaranteed and judgments can move freely. In fact, since the creation of an area of freedom, security and justice is essential to enhance the protection of individual rights, one might ask whether such an objective has to be pursued necessarily through the creation of a common system of competences and the coordination of the activities and functions of "European" national jurisdictions in both civil and criminal matters.
During its first phase, due to the fact that such process is still evolving (and thanks to the high degree of "transparency" of the European legislative procedure), the research unit belonging to the University of Genoa, on the one hand, will concentrate on the most recently adopted instruments and on the projects that are being examined by the European institutions and, on the other hand, will collect all the doctrinal comments referring to them. To that end, an analysis of the main changes made by the Treaty establishing a Constitution for Europe appears unavoidable and will render it possible to compare the present institutional order with the emerging one: thus, attention will be paid to the abolition of the three Union's "pillars", to the new procedures and the new sources of law that the institutions will adopt in order to achieve the judicial cooperation in civil and criminal matters and, therefore, to strengthen the area of freedom, security and justice, which is complementary to the objective of the common market, as it is evidenced by article I-3, par. 2, of the Treaty establishing a Constitution for Europe.
During its second phase, the research unit will carefully concentrate on the analysis of the new forms of judicial cooperation which the European Union is planning to adopt in both civil and criminal matters.
With regard to the former field, the analysis will be mostly concerned with the Proposal for a Regulation of the European Parliament and the Council on the law applicable to non-contractual obligations, currently before the Union institutions for approval. Once entered into force, the Regulation will standardise the Member States' rules of conflict of laws regarding non-contractual obligations, with significant implications of a general character (e.g. those relating to the function and nature of private international law) as well as of a more particular nature (e.g. the introduction of new conflicts rules and the tendency towards their "specialisation") and so on. Therefore, a detailed analysis of the contents of the Proposal will be undergone, having particular regard to its most significant provisions and to the relevant legislative procedure.
Neither will this research omit to examine all those important proposals which have been presented in 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. A further element of reflection will in addition be constituted by the 1980 Rome Convention on the law applicable to contractual obligations its evolution and transformation into an EC legal instrument as well as by the ongoing works concerning the law applicable to wills and succession.
In addition, an effort will be made to systematically analyse the Council Conclusions "concerning preparatory work for The Hague conference on international jurisdiction and the effects of foreign judgments in civil and commercial matters" and to put such an initiative's prospects of development into a Communitarian perspective (particularly from the standpoint of the external relations of the EC). In the end, attention will be paid to some of the specific questions that have been left unresolved after the huge enlargement of the European Union to the ten new Member States. In addition, it will be taken into consideration which part of the communitarian acquis on judicial cooperation in civil matters is still not binding on the new Member States.
With regard to judicial cooperation in criminal matters, the analysis will be particularly concerned with the proposals which have been launched by both the Commission and the Council in some of their not binding documents (cf. the Communication from the Commission to the Council and the European Parliament - Mutual Recognition of Final Decisions in Criminal Matters, COM (2000) 495 final, 26th July 2000 and the Programme of measures adopted by both the Council and the Commission by 29 November 2000 to implement the principle of mutual recognition). To that end, attention will be paid, first of all, to the bills aiming at the introduction of uniform rules on conflict of laws and at the prevention of conflict of jurisdiction between Member States. In fact, as it has already been highlighted in paragraph 2.4, there is neither a rule of lis pendens nor any ranking between the grounds of jurisdiction, but only (and from time to time) an incentive to coordinate and, to the extent possible, to centralise prosecutions. Therefore, in order to prevent conflicts of jurisdiction or of judgments, rules should be adopted establishing that the authorities of only one Member State are competent to pronounce on a certain case. To that end, the analysis will be undergone in the light of the "Initiative of the Hellenic Republic with a view to adopting a Council Framework Decision concerning the application of the ne bis in idem principle", which provides rules on lis pendens, underlying how article III-171, par. 1, lett. b) of the Treaty establishing a Constitution for Europe, unlike article 31, par. 1, lett. d), of the EU Treaty, establishes that the Union shall prevent and settle conflicts of jurisdiction between Member States.
The analysis, therefore, will also be concerned with the principle of mutual recognition of decisions in criminal matters, starting from the analysis of the different aspects of the whole field of mutual recognition (ne bis in idem, recognition and execution of the foreign decision). According to the projects and proposals launched by the Commission and the Member States within the Union, the principle of mutual recognition can be regarded as applicable (even though not always effective) first of all to «final material» decisions, which, depending on the penalty they enjoy, might be differently regulated: therefore, among them one could find decisions imposing detentive or pecuniary penalties, alternative sanctions or confiscation orders, interdictions or disqualifications. The principle of mutual recognition should also be applicable to decisions pronounced in the post-sentence phase, the so-called post-sentencing follow-up decisions», and to the so-called «pre-trial orders», adopted pending a criminal procedure, such as orders freezing assets or evidence. The principle will therefore be applied to measures such as production orders and search and seizure orders (see the Proposal for a Council Framework Decision on the European Evidence Warrant for obtaining objects, documents and data for use in proceedings in criminal matters) and it is already effective with regard to procedural decisions, adopted pending a court decision as well as after it has been pronounced, to prison sentences or to «judicial decision[s] issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order» (see article 1, par. 1, of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States). Recently, the principle has been regarded as applicable also to «non-custodial pre-trial supervision measures». In the light of these instruments, either already in force or next to be adopted, the research unit belonging to the University of Genoa will aim at studying, above all, the powers that the executing judicial authority is provided with, underlying the abolition of the exequatur procedure and the subsequent gradual adoption of a direct and automatic system of recognition of foreign decisions. Thus, careful attention will be paid to the analysis of the reasons for which foreign decisions cannot be recognised or given effect, with a view to comparing the EU system with the reasons for which, under international treaty law, foreign decisions cannot be recognised or given effect.
Such a comparison between the results achieved in the different fields of judicial cooperation in civil and criminal matters will be the leading motive of the present research, within which an effort will be made to highlight the similarities and the differences among the choices made in those fields. In doing this, it will clearly be born in mind that the different solutions sometimes adopted in criminal matters are mainly due to the fact that criminal law represents the core of the national sovereignty and that in such field Member States are not keen on waiving their own competences. The main aim of the whole research, therefore, will be to underline the ways in which different forms of judicial cooperation could effectively contribute not only to the strengthening of the already existing area of freedom, security and justice, but also to the improvement of the common market (especially the field of the free movement of persons) and, therefore, of the overall European integration process.