RICERCA ITALIANA     

Research program

European Criteria for the drafting of Codes of Civil Procedure (towards a unified European Code of Civil Procedure)

University Co-ordinator

Università degli Studi di MACERATA - Diritto processuale civile - ()

Research Unit Leader

Antonio Carratta

Description

Object of the reserch of the Unit is the analysis of the profiles or criteria that emerge from the European procedural law with reference to the jurisdictional summary procedures (interim and provisional).
Primary task of the Unit of research, therefore, will be to individualize and to put in evidence the aspects of the jurisdictional summary procedures, emerged from the legislations of the Members States in the European judicial space.
To such objective, the first part of the research will be dedicated to the recognition and to catalogue all that is useful for obiective of program of research-Unit, with creation of a data bank, distinguishing – in the widest category of the summary relief - those with structure and function provisional and "protective" from that are not. Only after, the Unit will analyze some more gives close the contents, for that regards the specificities of the existing jurisdictional summary procedures and for examination of the common profiles or criteria.
In relation to this objective, the Unit of research - in coordination with the other Units - will articulate its research along four fundamental lines: a) the deepening of the main existing models of summary procedures in the European judicial space; b) the study of the criteria for the harmonization of the European procedural legislation and for the drafting of European Code of civil procedure; c) the analysis of the European legislative proposal on jurisdictional summary and interim relief; d) the articulation of eventual proposals of drafting of unified European jurisdictional summary and interim relief.

First phase.

In the first phase of research, the Unit will be concentrated on the examination of the various existing models of summary and interim procedures in the European judicial space. From this point of view, the attention will have to be turned, in particular:
- on the identification of the distinctive characteristics of the summary procedures in the Members States;
- on the possible interrelationship between the procedural criteria of the various models of summary procedures used from the States members;
- on the possible "harmonization" and unification between the various models.
To such objective, the Unit of research will dedicate, in the first time, to the recognition, to the eventual translation and to catalogue all that is useful for objective of research-program of Unit.
In particular, during of the research it will be proceeded:
a) to examination of the problems of jurisdictional summary procedures in the within of the European procedural systems, with particular reference to French, English, German and Spanish system; b) to the analysis of the European studies on jurisdictional summary procedures and the perspectives of reform;
c) to the examination of the jurisprudence of the European Court of Human Rights (ECHR) and the European Court of Justice (ECJ) on summary and interim relief;
d) to the analysis of fundamental models of summary procedures in the European judicial space;
e) to the examination of the proposal that in the last years are emerged from the legislative Organs of the European Union.
Results of this first part of the job will be collected in a data bank that the Unit of research will realize with the material acquired and selected.

Second phase.

In the second phase, the Unit of research will collaborate with the other Units for realization of a unified "European Code of Civil Procedure", engaging itself:
a) in the collation and systematic organization of legislation on summary and interim relief in the Members States of European Union; b) in the collection of the jurisprudence of the European Court of Justice on the jurisdictional summary and interim relief;
c) in the collection of the normative proposals of introduction of unified summary and interim procedures.
In this perspective, the job of the Unit of research will be organized for recognition of the principles or criteria of legislation on summary procedures (provisional protective and interim remedies), distinguishing:
- the summary provisional and protective remedies, that is measures that in the within of the single procedural system stretch to neutralize the danger of lesion of the subjective right during the time necessary in order to obtain the full jurisdictional protection;
- the summary (no protective) relief, that is measures that assure an assessment stable on the controversial legal situation, without the process to full and exhausting cognition, when the effective contestation of the right lacks or when there is the abuse of the right of defense of the part that has twisted or when it is necessary to assure the immediate protection of situations that have contained and/or mostly or exclusively not patrimonial function;
- the summary interim and "anticipatory" relief, that is measures that, involving the limited advance of the effects executive and declared of the final judgement, answer to the requirement to avoid that the time of the process is incumbent on the part that in the course of the same process to full and exhausting cognition.
Primary objective of the job in this second phase, therefore, is to characterize the possible solutions to the problems that emerge in judicial cooperation between Members States of European Union, with specific reference: a) to the harmonization of the discipline on the summary and interim procedures; b) to the determination of fundamental procedural aspects that guarantee the harmonization and that will be disciplines in a legislative instrument, regulations or directive; c) to the participation and the collaboration in the European legislative procedures in course or in that will emerge during the development of the research, with particular reference to those directing to the preparation of unified European summary and interim procedures (to begin from the European Order for payment procedure).