Draft programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters

(2001/C 12/01)

INTRODUCTION

The Treaty of Amsterdam inserted into the Treaty establishing the European Community a new Title IV containing specific provisions on judicial cooperation in civil matters.

In order to lend impetus to this cooperation and to set precise guidelines therefor, the European Council meeting in Tampere on 15 and 16 October 1999 held that "enhanced mutual recognition of judicial decisions and judgments and the necessary approximation of legislation would facilitate cooperation between authorities and the judicial protection of individual rights". It approved the principle of mutual recognition, which should become "the cornerstone of judicial cooperation in both civil and criminal matters within the Union".

In civil matters, the Tampere European Council advocated "further reduction of the intermediate measures which are still required to enable the recognition and enforcement of a decision or judgment 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 judgments 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".

It asked the Council and the Commission to adopt, by the end of 2000, a programme of measures to implement the principle of mutual recognition, and added that "in this programme, work should also be launched on a European Enforcement Order and on those aspects of procedural law on which common minimum standards are considered necessary in order to facilitate the application of the principle of mutual recognition, respecting the fundamental legal principles of Member States".

The Brussels Convention of 27 September 1968 lays down rules on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This Convention has undergone several amendments with the accession of new States to the Community(1) and is now in the process of being converted into a regulation(2).

The Community has other major achievements to its credit: the "Brussels II" Regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses, and the Regulation on insolvency proceedings(3).

The principle of mutual recognition of civil and commercial judgments between Member States is therefore not new. However, its implementation has had limited effect to date, for two main reasons. The first relates to the fact that many areas of private law do not come within the ambit of the existing instruments. This applies, for example, to family situations arising through relationships other than marriage, rights in property arising out of a matrimonial relationship, and succession.

The second reason lies with the fact that the existing texts retain certain barriers to the free movement of judicial decisions. The intermediate procedures enabling a ruling handed down in one Member State to be enforced in another are still too restrictive. Thus, despite the changes and simplifications it makes with regard to recognition and enforcement of judgments, the future Brussels I Regulation does not remove all the obstacles to the unhindered movement of judgments within the European Union.

Discussions on the subject were held at the informal meeting of Justice and Home Affairs Ministers in Marseilles on 28 and 29 July 2000.

The current programme of measures establishes objectives and stages for the work to be undertaken within the Union in the coming years to implement the principle of mutual recognition. It advocates the adoption of measures that can facilitate both the activity of economic agents and the everyday lives of citizens.

This programme contains measures that concern the recognition and enforcement in one Member State of a decision taken in another Member State, which implies that harmonised jurisdiction rules should be adopted, as was the case in the Brussels Convention and the Brussels II Regulation. It in no way prejudges work that will be undertaken in other areas under judicial cooperation in civil matters, particularly with regard to conflicts of law. The measures relating to harmonisation of conflict-of-law rules, which may sometimes be incorporated in the same instruments as those relating to jurisdiction, recognition and enforcement of judgments, actually do help facilitate the mutual recognition of judgments.

In the implementation of the measures advocated, account will be taken of the instruments adopted and ongoing work in other international forums.

The approach adopted to establish the programme is threefold:

- identifying the areas in which progress should be made,

- determining the nature, detailed procedures and scope of potential progress,

- fixing the stages for the progress to be made.

I. AREAS OF MUTUAL RECOGNITION

STATE OF PLAY

The 1968 Brussels Convention is the basic instrument. It covers all areas of civil and commercial law except for those which are expressly excluded from its scope, which are listed exhaustively in the text: the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession; bankruptcy; social security; and arbitration. The scope will not be changed by the future Brussels I Regulation, which is to replace the Brussels Convention.

Supplementary instruments: the areas excluded from the scope of the Brussels Convention are not yet all covered by instruments supplementing the 1968 provisions.

The Brussels II Regulation of 29 May 2000 applies to civil proceedings relating to divorce, legal separation or marriage annulment and to civil proceedings relating to parental responsibility for the children of both spouses on the occasion of such matrimonial proceedings.

The following are therefore not covered, and remain outside the ambit of any instrument applicable between the Member States:

- certain aspects of divorce litigation or legal separation that are not covered by the Brussels II Regulation (particularly decisions concerning parental responsibility amending decisions taken at the time of the divorce or legal separation),

- family situations arising through relationships other than marriage,

- rights in property arising out of a matrimonial relationship,

- wills and succession.

The Regulation of 29 May 2000 on insolvency proceedings applies to collective proceedings which entail the partial or total divestment of the debtor and the appointment of a liquidator(4).

PROPOSALS

A. IN AREAS NOT YET COVERED BY EXISTING INSTRUMENTS

It is mainly in the area of family law that progress is needed. Legal instruments will be drawn up in both the following areas.

1. International jurisdiction, recognition and enforcement of judgments relating to the dissolution of rights in property arising out of a matrimonial relationship, to property consequences of the separation of unmarried couples and to succession

Rights in property arising out of a matrimonial relationship and succession were already featured among the priorities of the Vienna action plan (December 1998). The economic consequences of judgments delivered when matrimonial ties are loosened or dissolved, during the lifetime of the spouses, or on the death of a spouse, are clearly of major interest in the creation of a European Judicial Area. In this context it is possible that, when drawing up instruments, a distinction needs to be drawn between rights in property arising out of a matrimonial relationship and succession. In this respect the relationship existing in Member States' law between rights in property arising out of a matrimonial relationship and succession will be examined.

The question of property consequences of the separation of unmarried couples will also be dealt with, so that all property aspects of family law can be examined.

2. International jurisdiction, recognition and enforcement of judgments relating to parental responsibility and other non-property aspects of the separation of couples

(a) Family situations arising through relationships other than marriage

Here it is a matter of supplementing the area covered by the Brussels II Regulation to take account of sociological reality: increasingly, couples are choosing to dispense with any matrimonial formalities, and there is a marked rise in the number of children born out of wedlock.

In order to take this new social reality into consideration, the scope of the Brussels II Regulation should be extended, by means of a separate instrument if necessary, notably to judgments concerning the exercise of parental responsibility with regard to the children of unmarried couples.

(b) Judgments on parental responsibility other than those taken at the time of the divorce or separation

The provisions of the Brussels II Regulation relate only to judgments in matrimonial proceedings. In view of the frequency and importance of judgments that are made subsequently and may modify the conditions under which parental responsibility is exercised, as fixed in judgments made at the time of the divorce or separation, it is necessary to apply to them the rules governing jurisdiction, recognition and enforcement contained in the Brussels II Regulation. This development must relate both to judgments concerning married couples and to those made in the context of the separation of unmarried couples.

In these new areas, which are not at present covered by any instrument, it will be useful to examine the legal situation in Member States' national law, as well as existing international instruments, in order to gauge the scope that should be given to any instruments that might be drawn up.

B. IN AREAS ALREADY COVERED BY EXISTING INSTRUMENTS

Here, the aim is to make the existing machinery work better by reducing or abolishing obstacles to the free movement of judicial decisions. The Tampere conclusions refer generally to all "civil matters", but also stress that as a first step these intermediate procedures should be abolished for titles in respect of small consumer or commercial claims and for certain judgments in the field of family litigation (e.g. on maintenance claims and rights of access).

Thus, two areas are involved: family law on the one hand, more especially rights of access and maintenance claims, and commercial and consumer law on the other. These areas are thus identified as being priorities.

1. Rights of access

France has already tabled an initiative. It is designed to abolish the exequatur procedure for the cross-border exercise of rights of access arising from a judgment falling within the scope of the Brussels II Regulation.

2. Maintenance claims

This matter, expressly mentioned in the conclusions of the Tampere European Council, directly concerns the everyday lives of citizens in the same way as the previous matter. Although the guarantee of effective and rapid recovery of maintenance claims is indeed essential to the welfare of very large numbers of people in Europe, this does not necessarily imply that a separate legal instrument has to be drawn up. Maintenance creditors are already covered by provisions of the Brussels Convention and of the future Brussels I Regulation, but it would also be advisable in the long term to abolish the exequatur procedure for maintenance creditors, thus boosting the effectiveness of the means by which they safeguard their rights.

3. Uncontested claims

The abolition of exequatur for uncontested claims should feature among the Community's priorities.

The substance of the concept of "uncontested claims" will be specified when the limits of the instruments drawn up in application of the programme are defined. At present, that concept generally covers situations in which a creditor, given the verifiable absence of any dispute by the debtor over the nature or extent of the debt, has obtained an enforcement order against that debtor.

The fact that an exequatur procedure can delay the enforcement of judgments concerning uncontested claims is a contradiction in terms. It fully justifies this area being the first in which exequatur is abolished. Rapid recovery of outstanding payments is an absolute necessity for business and is a constant concern for the economic sectors whose interest lies in the proper operation of the internal market.

4. Litigation on small claims

The concept of litigation on small claims referred to by the Tampere European Council covers various situations of varying degrees of importance that give rise to different procedures according to the Member State concerned. Discussions on simplifying and speeding up the settlement of cross-border litigation on small claims, in line with the Tampere conclusions, will also, through the establishment of specific common rules of procedure or minimum standards, facilitate the recognition and enforcement of judgments(5).

II. DEGREES OF MUTUAL RECOGNITION

STATE OF PLAY

Current degrees of mutual recognition

In areas not covered by existing instruments, recognition and enforcement of foreign judgments is governed by the law of the requested State and by existing international, bilateral or multilateral agreements on the subject.

In areas already covered, there are two degrees of mutual recognition.

The first degree still features today in the 1968 Brussels Convention and the Brussels II Regulation: recognition is automatic unless contested; a declaration of enforceability (exequatur) may be obtained upon application and can be refused on one of the grounds on the exhaustive list in the relevant instrument. This exequatur procedure is therefore less complex than would generally result from the application of national law.

The second degree resulted from the review of the Brussels and Lugano Conventions and will be implemented following adoption of the Brussels I Regulation, which is due to replace the 1968 Brussels Convention: the procedure for obtaining a declaration of enforceability is considerably streamlined; it is obtained on completion of certain formalities and can only be contested by the other party at the second stage (system of "reversing the responsibility for action"). This streamlined exequatur will apply to all areas covered by the current 1968 Brussels Convention and to insolvency procedures covered by the Regulation of 29 May 2000.

PROPOSALS

Achieving further degrees of mutual recognition

A. MEASURES DIRECTLY AFFECTING MUTUAL RECOGNITION

1. Areas not covered by the existing instruments

The approach must be to follow a gradual method to reach the degree of mutual recognition currently achieved by the Brussels II Regulation, before attaining the degree achieved by the future Brussels I Regulation, and then to progress beyond it. However, it will be possible in certain cases to reach new degrees of mutual recognition directly, without any intermediate step.

2. Areas already covered by the existing instruments

In these areas, further progress should be made, with two series of measures.

(a) First series of measures: further streamlining of intermediate measures and strengthening the effects in the requested State of judgments made in the State of origin

(i) Limiting the reasons which can be given for challenging recognition or enforcement of a foreign judgment (for example, removal of the test of public policy, taking account of cases in which this reason is currently used by the Member States' courts).

(ii) Establishing provisional enforcement: the decision stating enforceability in the requested country would thus be enforceable on a provisional basis, despite the possibility of appeal.

Such a development requires an amendment of Article 47(3) of the draft Brussels I Regulation (Article 39(1) of the Brussels Convention).

(iii) Establishing protective measures at European level will enable a decision given in one Member State to embrace the authorisation to take protective measures against the debtor's assets in the whole territory of the Union.

This possibility, which is currently not afforded by the draft Brussels I Regulation, would, for example, enable a person who has obtained judgment against a debtor in one Member State, in the event of the latter challenging recovery of his debt, to have the debtor's property forthwith frozen in another Member State as a protective measure, without recourse to a further procedure. These measures would be without prejudice to the fact that certain types of property may not be seized under domestic law.

(iv) Improving attachment measures concerning banks, e.g. by establishing a European system for the attachment of bank accounts: with a judgment certified as enforceable in the Member State of origin, measures could be taken in any other Member State, without exequatur and ipso jure, for attachment of the debtor's bank accounts. The judgment would become enforceable in the country of attachment, at least for the purposes of the latter, unless contested by the debtor.

(b) Second series of measures: abolition of intermediate measures

Abolition, pure and simple, of any checks on the foreign judgment by courts in the requested country allows national judgments to move freely throughout the Community. Each requested State treats these national judgments as if they had been delivered by one of its own courts.

In some areas, abolition of the exequatur might take the form of establishing a true European enforcement order, obtained following a specific, uniform and harmonised procedure(6) laid down within the Community.

B. MEASURES ANCILLARY TO MUTUAL RECOGNITION

1. Minimum standards for certain aspects of civil procedure

It will sometimes be necessary, or even essential, to lay down a number of procedural rules at European level, which will constitute common minimum guarantees intended to strengthen mutual trust between the Member States' legal systems. These guarantees will make it possible, inter alia, to ensure that the requirements for a fair trial are strictly observed, in keeping with the European Convention for the Protection of Human Rights and Fundamental Freedoms.

For each measure under consideration, the question of drawing up some of these minimum guarantees will be examined, in order to determine their usefulness and their role. In certain areas, and particularly where abolition of the exequatur is planned, drawing up such minimum guarantees may be a precondition for the desired progress.

If the establishment of minimum guarantees appears to be insufficient, discussions should be directed towards a certain degree of harmonisation of the procedures.

In order to take into account the fundamental principles of law recognised by Member States, measures aiming at the establishment of minimum guarantees or at a certain degree of harmonisation of procedures will be sought most particularly in the case of the mutual recognition of decisions relating to parental responsibility (including those concerning rights of access). Questions relating to the child's best interests and the child's place in the procedure will, inter alia, be discussed in this context.

In order to increase the certainty, efficiency and rapidity of service of legal documents, which is clearly one of the foundations of mutual trust between national legal systems, consideration will be given to harmonising the applicable rules or setting minimum standards.

If the parties to proceedings are able to adduce their arguments in a manner recognised as valid by all the Member States, this clearly increases confidence in the proper administration of justice at an early stage in the proceedings, making it easier to dispense with checks later on.

Such a development will take duly into account progress already made on account of the entry into force of Council Regulation (EC) No 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.

2. Efficiency of measures providing for improved enforcement of decisions

Another series of ancillary measures would consist in seeking to make more efficient the enforcement, in the requested State, of judgments delivered in another Member State.

Some of these measures could concern more specifically debtors' assets. It would in fact be much easier to enforce judgments within the European Union if it were possible to obtain accurate information on the debtor's financial position. Measures could therefore be taken to enable precise identification of a debtor's assets in the territory of the Member States.

When devising measures of this kind, account should be taken of the impact they could have on data protection and the confidential nature of certain information as provided for in Member States' domestic law or in international law.

3. Improving judicial cooperation on civil matters in general

These would include measures conducive to implementation of the principle of mutual recognition, i.e. which would make for a climate of improved cooperation between national judicial authorities.

The establishment of the European Judicial Network on civil and commercial matters should accordingly feature in the programme of measures, as an ancillary measure(7).

Mention should also be made of an instrument for enhancing cooperation between Member States' courts on the taking of evidence in civil and commercial matters(8).

Similarly, the programme includes the development of measures giving easier access to justice. Here, account will be taken of the follow-up to the Green Paper on legal aid submitted by the Commission in February 2000, with a view to taking initiatives with regard to legal aid in cross-border cases.

Likewise, it would seem particularly useful to make the public better informed on the rules on mutual recognition(9).

Lastly, implementation of the mutual recognition principle may be facilitated through harmonisation of conflict-of-law rules.

III. STAGES

METHOD

It is always difficult to set deadlines for work to be achieved in the Community: deadlines which are too short are unrealistic, while those set too far ahead do not provide sufficient incentive for States. Progress should be made in stages, without any precise deadlines, but simply some broad guidelines.

1. The programme will be put in hand as from adoption of the Brussels I Regulation, which is the basic instrument for mutual recognition.

2. The programme distinguishes between the following four areas of action:

- areas of civil and commercial law covered by the Brussels I Regulation,

- areas of family law covered by the Brussels II Regulation, and family situations arising through relationships other than marriage,

- rights in property arising out of a matrimonial relationship and the property consequences of the separation of unmarried couples,

- wills and succession.

3. In each area stages are established with a view to making gradual progress. A stage is begun when the previous one has ended, at least as regards essentials (for example, Council agreement on an instrument, even if it has not yet been formally adopted for technical reasons); however, this requirement must not prohibit more rapid progress from being made in certain subjects.

4. Several initiatives may be taken at the same time in several areas.

5. Ancillary measures mentioned in the programme are taken whenever they seem necessary, in all areas and at all stages of the programme.

PROPOSALS

A. AREAS COVERED BY THE BRUSSELS I REGULATION

First stage

- European enforcement order for uncontested claims.

- Simplifying and speeding up the settlement of cross-border litigation on small claims.

- Abolition of exequatur for maintenance claims.

Second stage

Revision of the Brussels I Regulation:

- incorporation of previous developments,

- abolition of exequatur in other areas,

- measures to strengthen the effects in the requested State of judgments made in the State of origin (provisional enforcement, protective measures, including the attachment of bank accounts).

Third stage

Abolition of exequatur in the areas covered by the Brussels I Regulation.

B. AREA OF FAMILY LAW (BRUSSELS II AND FAMILY SITUATIONS ARISING THROUGH RELATIONSHIPS OTHER THAN MARRIAGE)(10)

First stage

- Abolition of exequatur for judgments on rights of access(11).

- Instrument relating to family situations arising through relationships other than marriage: adoption of the Brussels II Regulation's machinery. This may be a new instrument or a revision of the Brussels II Regulation, through extension of the latter's scope.

- Extending the scope of any instrument(s) adopted earlier to judgments modifying the conditions under which parental responsibility is exercised, as fixed in judgments made at the time of the divorce or separation.

Second stage

For every previously adopted instrument:

- application of the simplified procedures for recognition and enforcement of the Brussels I Regulation,

- measures to strengthen the effects in the requested State of the judgments made in the State of origin (provisional enforcement and protective measures).

Third stage

Abolition of exequatur for the areas covered by the Brussels II Regulation and for family situations arising through relationships other than marriage.

C. DISSOLUTION OF RIGHTS IN PROPERTY ARISING OUT OF A MATRIMONIAL RELATIONSHIP AND THE PROPERTY CONSEQUENCES OF THE SEPARATION OF UNMARRIED COUPLES

First stage

Drawing up of one or more instruments on jurisdiction, recognition and enforcement of judgments relating to rights in property arising out of a matrimonial relationship and the property consequences of the separation of unmarried couples: adoption of the Brussels II Regulation's machinery.

Second stage

Revision of the instrument(s) drawn up at the first stage:

- application of the simplified procedures for recognition and enforcement of the Brussels I Regulation,

- measures to strengthen the effects in the requested State of the judgments made in the State of origin (provisional enforcement and protective measures).

Third stage

Abolition of exequatur for the areas covered by the instrument(s) drawn up.

D. WILLS AND SUCCESSION

First stage

Drawing up of an instrument on jurisdiction, recognition and enforcement of judgments relating to wills and succession: adoption of the Brussels II Regulation's machinery.

Second stage

Revision of the instrument drawn up at the first stage:

- application of the simplified procedures for recognition and enforcement of the Brussels I Regulation,

- measures to strengthen the effects in the requested State of the judgments made in the State of origin (provisional enforcement and protective measures).

Third stage

Abolition of exequatur for the areas covered by the instrument drawn up.

E. ANCILLARY MEASURES

Two measures have already been proposed: their adoption would seem to be necessary as soon as the programme is launched:

- instrument on the taking of evidence;

- establishment of the European Judicial Network on civil and commercial matters.

Furthermore, for each area of the programme and at each stage, the following ancillary measures could be considered:

- minimum standards for civil procedure;

- harmonisation of rules on, or minimum standards for, the service of judicial documents;

- measures to facilitate the enforcement of judgments, including those allowing identification of a debtor's assets;

- measures for easier access to justice;

- measures for easier provision of information to the public;

- measures relating to harmonisation of conflict-of-law rules.

LAUNCHING, MONITORING AND COMPLETION OF THE PROGRAMME

The programme starts with the launching of work on the first stage in one or more areas. It continues by following the order of stages in each area, on the understanding that progress may be achieved more rapidly in one area than in another.

Five years after adoption of the programme, the Commission will submit to the Council and the Parliament a report on its implementation. The Commission will make any recommendations to the Council that it deems useful for the proper execution of the programme, indicating in particular those areas in which it considers that special efforts should be made.

The monitoring report drawn up by the Commission may also contain recommendations concerning measures which were not initially planned in the programme but which it seemed necessary to adopt subsequently.

The programme of measures is completed by the general abolition of exequatur.

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(1) A consolidated version of the Brussels Convention was published in OJ C 27 of 26 January 1998.

(2) Usually referred to as the "Brussels I" Regulation.

(3) Council Regulations (EC) No 1347/2000 and (EC) No 1346/2000 of 29 May 2000 (OJ L 160, 30.6.2000).

(4) This excludes insolvency proceedings concerning insurance undertakings, credit institutions, investment undertakings which provide services involving the holding of funds or securities for third parties, and collective investment undertakings.

(5) The Commission is preparing a comparative study of law in the area, based on a questionnaire addressed to the Member States.

(6) This might be either a uniform procedure laid down in a regulation, or a harmonised procedure set up by each Member State pursuant to a directive.

(7) On 25 September 2000, the Commission submitted a proposal for a decision establishing a European Judicial Network in civil and commercial matters.

(8) Germany has submitted a draft Regulation in this area.

(9) Provisions on information to the public are contained in the Commission's proposal on the establishment of the European Judicial Network in civil and commercial matters.

(10) It being specified that, with regard to measures concerning judgments on parental responsibility (including judgments on rights of access), the ancillary measures referred to in point II(B)(1) concerning consideration of the child's best interests and the child's place in the procedure should be taken into account.

(11) Initiative already presented by France.