A high standards quality justice
During its meeting in Tampere of October 15th and 16th 1999, the European Council aimed at maintaining and developing an area of freedom, security and justice in which freedom of movement is assured to people. To gradually set up such an area, the Community adopts, inter alia, provisions in the field of legal cooperation in civil matter necessary to the good performance of the internal market. The European Council also approved the principle of mutual recognition of court decisions as the cornerstone of the creation of a genuine area of justice. To mark the ten years of this fundamental summit, to measure its scope, its projections but also its downfalls, the UIHJ wanted to organize an international symposium of a great dimension. Sibiu, European capital of culture in 2007, high place of tradition, and its Faculty of Law Simion Barnutiu, were the ideal place for this event.
The conference was perfectly organized in co-operation with Ioan Les, dean of the Faculty of Law of Sibiu, member of the Scientific Council of the Institute of International Private Judicial Law and Enforcement Law, and Marius Crafcenco, president of the National Union of the judicial officers of Romania. The main amphitheater of the faculty was full. Judicial officers came from many countries of Europe and Africa, as well as law professors and representatives of international institutions amongst which, the European Commission, and the International Training Centre for Judicial Officer in the person of its administrator, Abel-Didier Pansard, shared the benches of the prestigious faculty with its Rumanian students.
Most of the board of the UIHJ was there: Jacques Isnard, president, Leo Netten, 1st vice-president, Roger Dujardin, vice-president, Bernard Menut, secretary, Roland de Meerleer, Adrian Stoïca and Francis Guépin, members, as well as René Duperray, general secretary, and Mathieu Chardon, 1st secretary.
In his introductory remarks, Jacques Isnard recalled the importance of the council of Tampere, of which several of the 62 points of its conclusions interested procedural law and law of enforcement procedures, namely:
- To establish minimum standards ensuring an adequate level of legal aid in cross-border cases
- To establish special common procedural rules for simplified and accelerated cross-border litigation on small consumer and commercial claims
- The realization of documents or forms for cross-border legal procedures
- Mutual recognition of court orders, considered as the cornerstone of legal co-operation within the European Union
- The reduction of intermediate measures which are still required to enable the recognition and enforcement of a decision or judgment in the requested State with the fixing of minimal standards (suppression of the exequatur)
- Recognition of the decisions given in the phase preceding the judgment to facilitate the seizure of banking assets
- The creation of a European Enforcement Order
- The installation of new rules allowing to improve access to justice and to facilitate legal co-operation in civil matter, in particular as regards evidence taking and order for payment
To prepare the implementation of these conclusions, recalls Jacques Isnard, a covering document was carried out in the form of the program of 30 November 2000, called the “Programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters”. This document laid down in detail the modes of implementation of the mutual recognition of judicial decisions and judgments as well as the necessary bringing together of legislations so as to facilitate the co-operation between authorities. Thus, as of spring 2000 the first three regulations of 29 May 2000 were to hatch:
- Regulation 1346/2000 on insolvency proceedings;
- Regulation 1347/2000 on the recognition and enforcement of judgments in matrimonial matters (Brussels II)
- Regulation 1348/2000 on the service of judicial and extra-judicial documents.
But the president of the UIHJ was to regret “a climate of constant fights of influence and perpetual cultural confrontations” which indisputably harm the comprehension and the clearness of the instruments of derived law. Then, drawing up an assessment of the situation and evoking the program of The Hague of 4 and 5 November 2004, Jacques Isnard pointed out that the Community objectives were to create a European area of justice respectful of the traditions and legal systems of the Member States which associates the professionals closely. Thus, it is a question of constituting a European area of justice in which an effective access to justice is guaranteed for obtaining and enforcing court decisions. Information is central to legal security. “On first analysis we are bound to note how much forms, in the manner of introducing court proceedings, can be different according to the Member States. These forms are as vague and dubious as their legal authenticity and, by way of consequences, their conclusive force are variable” estimates the president of the UIHJ. However, “the document initiating proceedings constitutes the key of the legal process and the qualification of the judgment, like afterwards the effectiveness of enforcement, depend on the technique applied to inform the parties of the lawsuit to come”. He greeted the work completed by the members of the UIJH on the document initiating proceedings with the making of a film on the service of documents in the European Union, of a report on the service of documents in Europe and the draft directive of document initiating proceedings in the European Union. On the aspect of enforcement, Jacques Isnard expressed a regret: why the prescriptions of the European Council of 5 and 6 June 2003, specifying to the experts that the document which was to be the European Enforcement Order (EEO) could circulate freely only if the service of the document initiating proceedings was handed only in the person of the debtor, were not put into effect? The president of the UIHJ ended his remarks by thanking all the participants and the speakers, as well as the co-organisers of the conference, Dean Ioan Les, Marius Crafcenco, and the vice-president of the European commission, Jacques Barrot, who made a point of giving his support for this demonstration. And the president to conclude, with its usual liveliness: “The walls of this splendid amphitheater prepare to resonate from the sparkles of the remarks made by the thirty-eight speakers appearing in the program and to whom I now give the floor!”
Then Constantin Oprean, rector of the University Lucian Blaga and Ioan Les, were due to accommodate both participants and speakers, in their welcoming in their beautiful city, European capital of culture in 2007. They stressed the importance of the works and the honor which had been made to them to bear the responsibility for this demonstration which they wished profitable and in a friendly and fraternal environment.
Marius Crafcenco welcomed all the congressmen, thanked the UIHJ to have chosen Romania as the venue of the demonstration and welcomed all in his country, by underlining the quality and the ambition of the work of the congress which constituted for the judicial officers of his country a major and historical event.
In a video message, Jacques Barrot, vice-president of the European commission, then also greeted the initiative of this conference and indicated how much he would be attentive to its outcomes. In particular, at the eve of the renewal of the European Commission and the forthcoming program of Stockholm, Mr. Barrot did not fail to emphasize the topicality of the conference. He wished for the enforcement of court decisions to be as simple abroad as in a national context and estimated that, in a global context, the mutual recognition between Member States required that justice met high standards of quality.
A Tower of Babel in Belgium
The congress proceeded over three days. It included three quite distinct parts: a European part, a national part and an international part. The main part, European, was entitled “Legal Europe: 10 years after the council of Tampere”. The national part consisted of a conference on enforcement law in Romania. Finally the international part had as a subject: “Enforcement law: transcontinental prospects”.
The European conference was divided into three topics themselves divided into five workshops. The first topic, entitled “The council of Tampere”, gathered two workshops: “Promises” and “Assessment and prospects”. The second topic “The document initiating proceedings” gathered the 3rd and 4th workshops respectively entitled: “The introduction of court proceedings in the EU” and “Programs for new instruments”. Finally the third topic, “Towards an enforcement law”, included the 5th workshop called: “An existing law but in search of recognition”.
Frédérique Ferrand (France), professor at law at the University Jean Moulin (Lyon III), member of the Scientific Council of the Institute of International Private Judicial Law and Enforcement Law, opened the ball by treating “Mutual recognition: principal Community instruments”. On the basis of the genesis of the creation of the European area of justice, the spirit of which is included in article 220 of the treaty establishing the European Economic Community, Professor Ferrand pointed out that it is in this context that the negotiations began which led to the adoption of the Brussels convention of 27 September 1968 on the recognition and execution of court decisions in civil and commercial matters. Then the treaty of Amsterdam moved from the third pillar to the first the field of civil legal cooperation, which means that the Community institutions are from now on qualified to draw provisions on the matter, in particular that mentioned in article 65 of the Treaty and aiming to:
- Improving and simplifying:
o the system for cross-border service of judicial and extrajudicial documents,
o cooperation in the taking of evidence,
o the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases;
- Promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction;
- 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.
Frédérique Ferrand evoked in turn the objectives of the Council of Tampere as regards access to justice, then as regards recognition. In the course of a presentation in two parts, illustrated by the whole of the regulations in force, she explained how the European legislator has initially softened the intermediate steps necessary for the recognition or the execution of a title within the EU, and in the second time removed intermediate control to support an actual freedom of movement of judgments in certain fields, without any control of the Member State of enforcement, until the execution stage itself. Professor Ferrand specified that the Community institutions intend to influence more and more on the applicable civil procedure in the Member States and that they engaged on the ground of the creation of specific procedures which the Commission would have wished that it apply not only to cross-border litigations, but also to internal litigations. “This shows that the objective of the Commission, in the medium term, is to harmonize national civil procedures in order to allow an equal access to justice and an equal quality of justice in all Member States. If the practical utility of such instruments is well understood, it nevertheless is justified to wonder about what will soon remain of the autonomy of procedures in the Member States” she concluded.
Roger Dujardin (Belgium), vice-president of the UIHJ, treated the application of three regulations in Belgium: Regulation 1393/2007 on service of documents, the Brussels I regulation and the regulation on the European Enforcement Order (EEO). In a first part, our fellow-member wondered whether Regulation 1393/2007 could build a “Tower of Babel in Belgium”. Indeed, according to him, regulation 1348/2000 and its successor give place to litigations around the linguistic mode and the time of service. Our colleague takes the example of a Dutch-speaking only inhabitant of Antwerp recently installed in Greece and who does not yet speak the language of this country. He is summoned upon a Belgian German-speaking jurisdiction. The document initiating proceedings is written in German and includes a Greek translation. In accordance with the provisions of article 8 of Regulation 1393/2000, he cannot refuse the document although he does not understand the language it is written in. Roger Dujardin also wonders if article 17 of the EEO Regulation does not make this instrument “a sand castle under a Belgian downpour”. He observes that the European obligation of information (more particularly in article 17 b) goes further than that envisaged in the Belgian judicial Code. “According to some authors, the current Belgian legislation perhaps insufficiently meets the minimal procedural standards imposed in the EEO Regulation” he notices, to wonder whether a modification of the Belgian law would be necessary “to widen the obligatory mentions in the document initiating proceedings by giving information on the consequences of defect and the effectiveness of the judgment which can be returned”.
An immense need for information and training
A roundtable was then animated by Bernard Menut, secretary of the board of the UIHJ, on the application of the Community instruments in various countries.
Dionysos Kriaris, vice-president of the National Chamber of the Judicial Officers of Greece, indicated that the creation of the EEO constitutes a big step since this instrument avoids the recourse to a procedure of exequatur of a legal decision. Like his fellow-member Dujardin, Dionysos Kriaris raised the problem of article 17 of the EEO Regulation by indicating that, in his country, necessary information is not provided in the document initiating proceedings, which can be covered by article 18 of the Regulation. Then, the vice-president of the Greek chamber put forward articles 13 and 14 which make an inventory of the modes of handing-over of the document initiating proceedings without indicating the people entitled to carry out this handing-over. “This omission must be clarified and it must be indicated that the only qualified people who offer the necessary guarantees to a made safe handing-over, and thus information with the recipients, are the judicial officers” says he, and to consider that the intervention of the judicial officer is the “necessary pre-requisite for the validity of a procedural document”. Our fellow-member also indicated that a bill was filed in which the introductory report clearly emphasizes the importance of the intervention of judicial officers to guarantee and protect the rights of the parties.
For Nicola Hesslen, judicial officer at the Public Service of Forced Covering (PSFC) in Gothenburg (Sweden), the service of documents is the most important institution for the harmonization in the European Union. “Without a harmonization in this field one will never have procedures of effective and secure enforcement as for example the EEO” she declared. To make this regulation more effective, our colleague proposes that the European Commission publishes all the agreements and arrangements existing and aiming to accelerate or simplify the transmission of documents, in accordance with the provisions of article 20 of Regulation 1393/2007. She also proposes the installation of a standardized tariff in the European Union for all Member States when the services of a member of the legal profession or a qualified person according to the law of the Member State are necessary.
As regards Brussels I Regulation, Nicola Hesslen indicates that this instrument is frequently used by the PSFC. She also noted a general ignorance of the instruments by professional lawyers who, sometimes, do not know which instrument to use to carry out the court decision: Brussels I or the EEO Regulation. Regarding the latter, Sweden adapted its legislation by a 2006 Act to establish the EEO in internal law. Some problems of application were however raised, more theoretical than practical since only between five and ten EEOs were recorded to date in Sweden. For example, according to article 10 paragraph 4 of the Regulation, the delivery of a EEO certificate cannot be challenged. In Sweden, the EEO certificate is issued by the PSFC which is not a jurisdiction according to article 4 paragraph 7 of the Regulation. With the current provisions it is thus not possible for the SPRF to asks a preliminary opinion of the Court of Justice of the European Communities on the interpretation of the EEO. In conclusion, our colleague is satisfied with the existence of the EEO but stated an immense need for information and training in Sweden and elsewhere among judicial officers and other categories of lawyers with regard to the application of Community instruments. She wished for the organization of seminars and conferences on this subject.
Then Claire Sandbrook, chair of the Association of High Court Enforcement Officers of England and of Wales, drew up a review of the situation, while emphasizing on specificities of the legal system of her country.
Security in the centre of the debate
The 2nd workshop was moderated by Roger Dujardin. Pelayia Yessiou-Faltsi, emeritus professor of the Faculty of Law of Thessaloniki (Greece) drew up an assessment of five years of application of the EEO in Greece. She began her speech by showing that despite the purpose of Regulation 805/2004 to offer an additional option of facilitated enforcement to the creditor, there is no explicit reference in this text to the need of establishing a set of uniform minimum procedural standards to govern the enforcement proceedings per se in the Member State of enforcement. Ultimately, the effective operation of Regulation 805/2004 is dependent: on the one hand upon a number of checks to be properly performed, mostly through the application of national rules or institutions, by the courts or other authorities of the Member-States where the judgment is given; on the other hand, upon the divergent enforcement systems of the Member-States, which, on the basis of the mutual trust ideal, are expected to be equally or at least sufficiently speedy and efficient. After having described the procedure allowing the delivery of the EEO certificate in Greece, professor Yessiou-Faltsi carried out a particularly complete evaluation of the application of the instrument in her country, given that the procedure was only recently installed. The three known certificates established by the county court of Thessaloniki in 2008 pose the problem of the scope of application and in particular touch with the distinction between civil and administrative matters as regards article 2. As regards articles 13 to 15, she indicated that some of the modes of handing-over do not exist in Greek law (postal or electronic notifications), the service being carried out by the judicial officers. Following the example of Dionysos Kriaris, professor Yessiou-Faltsi recognized that the requirements of article 17 of the Regulation relating to the procedural formalities to achieve by the debtor to dispute the debt and the consequences of the absence of objection or the non-appearance are not filled in internal law. At the conclusion of a particularly captivating intervention, Mrs. Yessiou-Faltsi underlined the progress of the EEO Regulation which avoids the successive exequatur when the debtor moves from one country to another State or has goods in various States. In the same way mechanisms of execution in internal law are not affected, it is always necessary to deal with the divergences and differences existing between the various European systems.
Jose Almagro Nosete, Judge (Spain), gave a very complete presentation on the EEO, while carrying out an analysis of this instrument in comparison with the national legislation of his country. For example, in order to determine the enforceable character of the decision which must be certified as a EEO, Regulation 805/2004 does not lay down any rule referring to the national legislation of each Member State. In the Spanish legislation, he indicates, the final judgments of condemnation fulfill the requirements of the EEO taking into account their enforceable character. Concerning the scope of application, Mr. Nosete specifies that, taking into account his procedural system, neither arbitrations nor conciliations recorded before the administrative jurisdictions could be the subject of a certification as a EEO. He also discussed the notion of uncontested claim with regards to the attitude of the defendant during the court hearing. Concerning the notification of the document initiating proceedings, the speaker points out that the EEO Regulation does not envisage the possibility to hand it on the work place of the addressee or to his caretaker, as opposed to what authorizes the Spanish legislation. On the other hand, the notification by the means of the deposit of the formal notification in the letterbox is not possible according to the Spanish procedural law, this mode of handing-over being considered as not offering any guarantee of its reception by the addressee. Consequently, no Spanish decision which can be certified as a EEO will be able to use this form of notification which is not valid legally. As regards information of the debtor in the document initiating proceedings, Mr. Nosete indicated that the requirements of articles 16 and 17 of the EEO Regulation are satisfied in Spanish internal law.
Anton Jongbloed, professor (the Netherlands), member of Scientific Council of the Institute of International Private Judicial Law and Enforcement Law, wondered about the future of the European Order for Payment (EOP) and the European Small Claims Procedure (ESCP). Any interrogation on the future requires considering the past. Professor Jongbloed thus recalled in his introduction some of the many reasons for which the European instruments were installed, amidst which appear the 1997 Treaty of Amsterdam, the increasing mobility of Europeans, or the development of trade and cross-border debts of all amounts, even small. Then the speaker described the broad outlines of the procedure of EOP. He indicated that the EOP is appealing for creditors insofar as its cost is lower than that of other available procedures. This text does not contain any mention on the costs of the possible intervention of a lawyer or those relating to enforcement. Professor Jongbloed indicated that by disputing the EOP, the debtor prevented the title from becoming enforceable. In spite of that, it is still interesting for the creditor to try to obtain a title by the means of the EOP. He wonders however if a non-jurist person would be able to cope without the assistance of a professional amidst the fourteen possibilities of engaging the procedure or the twenty-five ways of classifying debts. As regards the ESCP regulation (Regulation 861/2007 of 11 July 2007), Ton Jongbloed noticed that an equivalent procedure did not exist in all the Member States of the EU and that because of such an absence, the costs were often disproportionate compared to the amount of the debt. That is all the more true as the litigation is cross-border. After having described the broad outlines of the procedure, the speaker declared that the interest of the procedure was to be standardized, available in all the official languages of the EU, enforceable in all Member States, and also optional. For as much, when the decision is challenged, it is again referred to internal legal provisions, which are specific to each country. In addition, linguistic barrier is always present. In spite of the forms, courts sometimes need complementary documents which, as for them, will have to be translated. Professor Jongbloed ended his speech by making the point that purely European rules had been created in the field of procedural law. The two regulations will in the long term have an influence in the internal law if they are used. It is the case in The Netherlands where a procedure of order for payment, which existed between 1942 and 1992, became obsolete because of its high and often disproportionate costs compared to the interests at stakes. “This causes history to repeat itself often and there seems to be a pendulum movement (...).This is for the future to show, but there is undoubtedly a future for European procedural law solutions”, concluded the speaker.
Mathieu Chardon, 1st secretary of the UIHJ, then wondered how to cure the imperfection of some European legislation. He initially focused on the progress achieved in the past ten years since the Summit of Tampere as regards European instruments. According to him, the many reasons which are opposed to a European harmonization turn finally around two factors: on one hand the diversity of languages and on the other hand the diversity of legal systems in force in the European Union. “It is necessary to bring harmonization to a higher level without however imposing a linguistic or legal Esperanto” he estimates. For him, security is central to the debate. Can a judge in charge of litigation offer the image of a safe justice if he does not know whether the defendant was informed of the court hearing? Can the judgment which was given under such conditions be then carried out safely? Security implies the use of minimal standards, taking into consideration national legislations, making it possible to ensure that the defendant standing trial was duly summoned to appear, prepare his defense and measure the consequences of a default. That implies a service of the document initiating proceedings carried out by a qualified and responsible lawyer. As for the level of the minimal standard to adopt, Mathieu Chardon estimated that “if one was to impose a standard lower than the existing one in a country which needs a higher security, it is all its legal system which would be called into question. It is precisely what is happening with the regulations on the service of documents, EEO, EOP or ESCP”. And to consider in conclusion the creation of a European directive creating a European document initiating proceedings.
Francoise Andrieux, expert UIHJ, general reporter of the next congress international of the UIHJ in Marseilles (7 - 12 September 2009), showed a film report which she carried out with René Duperray during one year in the whole of the European Union on the means of introducing court hearings in the Community. A great disparity results from this with various degrees such as the contents of the document initiating proceedings or the way in which it is made available to the recipient.
Then Mathieu Chardon presented a preliminary draft of a European directive creating a European document initiating proceedings intended to harmonize the procedure of introduction of the court hearing at Community level. This project establishes the general provisions making it possible to simplify, facilitate and harmonize the document initiating proceedings into the Member States by creating a relevant document served to the defendants by a member of a legal profession or a qualified person according to the law of each Member State, physically or by any other secured means. It includes three main parts: one relating to the contents of the document initiating proceedings, the second relating to the way in which the document is served to the defendant, and the last relating to its outcomes. This project must be soon presented to the Community authorities.
A roundtable then was held, animated by Francis Guépin, member of the board of the UIHJ.
Francesa Biondi, judicial officer (Italy), Roderick Macpherson, Messenger-At-Arms (Scotland), Lorenzo Ruiz Martinez, procurador (Spain), Carlos Calvo, president of the National Chamber of the Judicial Officers of Luxembourg, Antonio Gomes da Cunha, president of the Chamber of Solicitadores of Portugal, and Matyas Kapa, dean of the Faculty of Law of the university Karoly Gaspar (Hungary), presented in turn the means of introducing court hearings into their respective countries.
Yes We Can!
Then Natalie Fricero, professor at the University of Nice, director of the Institute of legal studies, member of Scientific Council of the Institute of International Private Judicial Law and Enforcement Law, intervened on the topic of “The document initiating proceedings in the centre of legal security”. Professor Fricero indicated that the Sibiu conference “brought us together around precise problems: does the European Union need to be concerned with the document initiating proceedings in order to establish common standards to all the States?” She defined the document initiating proceedings as “the procedural document by which a person takes the initiative of a lawsuit”. This document has procedural value only if it is made available to the defendant: the document initiating proceedings includes, at the same time, a request made to the judge and a mode of service of this request to the defendant, by notification or in person. After having noted the extreme diversity of the modes of introducing a court hearing within the European Union, she indicated that it was time “that a European regulation harmonizes the methods of the document initiating proceedings, while being based on common principles, minimal standards existing in all the States.” In a brilliant presentation, Mrs. Fricero initially exposed the need for a harmonized European document initiating proceedings. According to her, the document initiating proceedings constitutes a condition of the respect of the requirements of a fair trial, as testified by several decisions of the European Court of Human Rights (Miholapa vs. Latvia of 31 May 2007, Gospodinov vs. Bulgaria of 10 May 2007, Pellerin vs. Italy of 20 July 20th), or of the Court of Justice of the European Communities: Krombach case of 28 March 2000). The document initiating proceedings also constitutes a condition of freedom of movement of judgments in the European legal area. Professor Fricero makes the point that the recognition and the distraint of a judgment cannot be allowed if the ways the court hearing is introduced did not guarantee an effective exercise of the rights of defense, and possibly, the exercise of a ground for appeal is case of default judgment. However, the effective execution of a court decision is a human right that the European Court linked to the notion of a fair trial in its Horsnby vs. Greece case of 18 March 1997. “Thus exists a direct link between the service of the document initiating proceedings and the basic rights of European citizens” she states, and to continue, being the suppression of exequatur: “It will be possible to meet these stakes only by harmonizing the processes of initiating proceedings”. Hence the need for determining the characteristics of the ideal European document initiating proceedings, which was developed by Professor Fricero in the second part of her presentation. The introductory document must rest on an equitable and protected process. Thus, the information of the defendant, condition of the respect of the contradictory and the rights of defense, must be carried out by an introductory document which must have certain qualities: clearness in the drafting, minimal standards as regards its contents, such as the date, the indication of the seized jurisdiction, the identification of the applicant and the defendant, the object and causes of the request, the identification of the possible representatives and the identification of the person in charge of the service of the document, as well as the conditions of the representation or of the assistance in justice, with the consequences of the non-appearance and the absence of dispute of the request, the list of the documents which will be produced to court and to be communicated, the procedural possibilities allowing to dispute the claims of the applicant, or the expenses to which the defendant is committed. Lastly, the document must be made available to the recipient. In this respect, estimates Natalie Fricero, “temptation is to go towards simplistic modes: but it is necessarily to the detriment of the quality of the judgment. Which judge can make a decision if the defendant could not present his arguments? The celerity of justice is not assured if the badly convened defendant does not present himself and then uses the possibility to challenge the judgment”. Thus, information must be guaranteed by a reliable process guaranteeing the effectiveness of the rights of defense. Such is not the case of the telephone, even of the fax, “which does not make it possible to prove with certainty the date and the contents of information”. In the same way, following the example given by Jose Almagro Nosete, “a simple handing-over in the letterbox does not appear to be enough to acquire the certainty of full information”. For the speaker, the document initiating proceedings supposes the recourse to a professional of service such as a judicial officer, “essential element of the Rule of law” as recognized in the Pini vs. Romania case of 22 June 2004. And to finish by a relentless conclusion immediately followed by a thunder of applause: “the European document initiating proceedings is the cornerstone of freedom of movement of court decisions, and it will be able to contribute to the effectiveness of the European legal area only if all the Member States resort to a protected process which generates a mutual trust. It is a famous formula which we could make ours: A European document initiating proceedings: Yes, we can!”
A project rejected by the European Parliament
The 4th workshop was chaired by Marc Schmitz, judicial officer (Belgium), quaestor of the Committee of the UIHJ. Burkhard Hess, professor at the University of Heidelberg (Germany), member of the Scientific Council of the Institute of International Private Judicial Law and Enforcement Law, made a very alive presentation of the attachment of banking assets, through a Power Point presentation. Mastering his topic, Professor Hess drew up the history of this procedure and indicated which the stakes were. Then he informed the audience about the state of progress of the work before the European Commission as regards the drafting of a European Regulation of freezing of banking assets, whose base is the Green Book of 24 October 2006.
Then Mélina Douchy-Oudot, professor at the University of Dijon (France), evoked a subject of topicality within the Community: the patrimonial transparency. “It is not enough to obtain an enforceable title, it is still necessary to enable its enforcement, the satisfaction of the creditor and the discharge of the debtor” she recalls before approaching “the controversial competence of the European Union” on the matter. Professor Douchy-Oudot described the elements of the project of a new Community instrument (development of a handbook on the systems of enforcement existing within the EU, creation of a communication network) and the means of realization of the aims in view (declaration of assets, access to registers). Then the speaker specified that the European Parliament overall disallowed with the various proposals contained in the Green Book. In conclusion, she indicated that her choice was heading towards three directions: the creation of a handbook relating to the enforcement systems of the different member States and other specific information, the exchange of information between enforcement authorities, and the supervised access to national registers only for the use of the competent enforcement authorities.
The 4th workshop was completed by the intervention of Jérôme Carriat, administrator at the European commission. Mr. Carriat thanked the organizers of the conference for having invited him and expressed all the interest which he had in the following of the debates. He declared himself very interested by the European draft directive of a document initiating proceedings and cordially greeted this initiative. Mr. Carriat gave then a report on the whole of the works in progress on the various instruments being the subject of the conference and completed his intervention by indicating that he would make an account to the European Commission of the work being discussed here.
The destiny of the territoriality of enforcement measurements
The 5th workshop, which had as a subject “An existing law but in search of recognition”, was placed under the chair of Jacques Isnard.
Viorel Ciobanu, professor, former dean of the Faculty of Law of Bucharest, and Marian Nicolae, professor at the Faculty of Law of Bucharest, evoked the topic of the right of enforcement and to a fair trial.
Gilles Cuniberti, professor at the University of Luxembourg dealt with “the territoriality of enforcement procedures”. With all the eloquence which characterizes him, Professor Cuniberti introduced his matter by indicating that civil enforcement procedures are “traditionally reliant on borders because dominated by a principle of territoriality”, to wonder which is the destiny of this territoriality of enforcement procedures in a constantly changing Europe. He first of all discussed the international base of the principle of territoriality, of which it is unanimously recognized that it must be found in the public international law, as a corollary of the territorial sovereignty of the State. Thus, the specialized enforcement authorities could only intervene on their own soil. On the other hand, within the strictly European framework, the situation is very different, Mr. Cuniberti continues as prolegomena of an analysis of the European specificity. According to him, “the vast majority of international public law provisions can be the subject of a contrary agreement by two parties eager to observe other rules in their mutual relations”. The States have in this respect the greatest freedom: as soon as they conclude particular agreements, international legal provisions are not any more essential in their mutual relations. The speaker notes that the territoriality of procedures was not the subject of an in-depth study by the European authorities. “Perhaps the rupture will come from the instrument implementing the European freezing of banking assets”, as the Green Book of the Commission commented on by Professor Hess lets it forecast, he exposes. According to him, the principle of territoriality will not resist the construction of the common area of justice. He recalls that conservative measures can relate to goods located abroad, according to jurisprudences Denilauler and Van Uden. As regards insolvency, regulation (EC) n°1346/2000 of May 29th, 2000 relating to the procedures of insolvency clearly crowned the intellectual extraterritoriality of insolvency procedures, by organizing the universality of main bankruptcies, which can thus carry to relate to the goods of the debtor, even when they would be localized elsewhere in Europe. For as much, Mr. Cuniberti explains that it appears much more difficult for him to decide when it comes to material enforcement: “Could one imagine that tomorrow in Europe a French judicial officer goes physically to Germany to operate an attachment of goods there?”. And to quote president Isnard who predicts that the condition of nationality of the enforcement professionals should not be eternal and consequently foresees the possibility for the aforementioned professionals of recruiting collaborators coming from whole Europe. Being the jurisdiction ratione loci of enforcement agents, it is often limited to part of the national territory. One of the reasons is to make sure of the proximity between the citizen and the judicial officer; another is to ensure the presence of the judicial officer in all geographical areas, by controlling their distribution on the territory. And to conclude that “it does not seem that the opening of the European territorial competence of the judicial officers is necessarily incompatible with the realization of these objectives, and thus the maintenance, in the States wishing it, of a limitation of their internal ratione loci jurisdiction”.
Paula Meira Lourenço, assistant professor at the Faculty of Law of the University of Lisbon (Portugal), president of the Commission on the Efficiency of Enforcement of Portugal (CEEP), member of the Scientific Council of the Institute of International Private Judicial Law and Enforcement Law, treated the topic of the “right to enforcement to an enforcement law”. Initially Professor Meira Lourenço evoked the famous Horsnby vs. Greece case which recognized the right to the enforcement of a judgment within a reasonable time as a consequence of a fair trial envisaged by article 6 § 1 of the European Convention on Human Rights. By its jurisprudence, the European Court defined the contents of the right to enforcement. It is limited to the final and compulsory decisions in civil matters, being specified that exceptional circumstances can justify a delay in enforcement, as of the moment that a just balance is stricken between the right of the applicant and the objectives. One of the consequences of these provisions is that it is necessary to give the winner of the case the instruments necessary to the effective enforcement of the court decision. The European Union thus became aware that it could not ignore the way in which decisions were carried out across the borders. This reflection leads Mrs. Meira Lourenço to the second part of her presentation, centered on enforcement law. This law appears as equipped with an autonomy which covers pecuniary execution. It comprises its teaching, its publications and it is a specialized law. And the speaker to quote the regulations and directives of the Community legislator, the many works and conferences of the UIHJ for nearly ten years, those of the National School of Procedure of Paris, the International Training Council of judicial officers, the creation of the Institute of International Private Judicial Law and Enforcement Law and its Scientific Council to which she belongs, the many academic articles on the matter, of which those of Jacques Isnard, Jacques Normand, Natalie Fricero and more recently Guillaume Payan, author of a thesis on the subject, the specific teaching of the enforcement procedures in the universities, and finally the CEEP. The speaker finished her presentation by quoting some lines of thinking for the enforcement law: electronic lawsuit, total access to information relating to the identification and the inheritance of the defendant, electronic seizure and transparency of the activities of legal operators (judge, enforcement agent and lawyer).
Then, within the framework of a roundtable chaired by Leo Netten, 1st vice-president of the UIHJ, Guillaume Payan (France) made a presentation of his recent thesis on enforcement law in Europe, soon to be published. Adrian Stoica carried out a plea for an autonomous law of enforcement in the European Union. Jos Uitdehhag (The Netherlands), first quaestor of the Committee of the UIHJ, gave a report of the many reforms relating to enforcement of legal decisions and the profession of enforcement agent in the Balkans countries.
Supporting the autonomy of an enforcement law
The conference was completed by an international conference on the topic of transcontinental prospects for enforcement law.
Aïda Kemelmayer de Carlucci (Argentina), judge at the Supreme Court of Mendoza, professor at the Faculty of Law of Mendoza, member of the Scientific Council of the Institute of International Private Judicial Law and Enforcement Law, treated subject of the transnational mode of enforcement of legal decisions in South America. Then, Jacqueline Lahoues-Oblé (Ivory Coast), professor at the faculty of law of Abidjan, presented the treaty of Ohada as a draft of a harmonized international law of enforcement.
To close this historical conference, professor Ioan Les gratified the listeners with a masterly summary report. “The fundamental aim of the Sibiu Symposium was to carry out a thorough analysis of the results obtained since the council of Tampere of 1999 until now, especially in the last decade of application of innovative Community legislation intended to carry out an area of freedom, security and justice” he declared. At the conclusion of a singularly rich and alive intervention, Professor Les concluded his remarks in these terms: “Supporting autonomy of enforcement law is often boldly considered. Traditionally enforcement law is regarded in many European countries as forming an integral part of the private judicial law. The spectacular evolutions of the last years, materialized in the Community legislation which was analyzed here in Sibiu can constitute an important reference in the direction of the accreditation from the point of view according to which enforcement law constitutes a branch distinct from the legal system. (...) We consider that the inexistence of Enforcement codes in certain countries, where this matter is still subjected to the regulation of the code of civil procedure, constitutes an argument against the thesis of the autonomy of enforcement law, but it is not a fundamental argument. The nearest evolutions, concretized in the amplification of Community legislation as regards distraint, will be able to still legitimate more the autonomy of an enforcement law.”
There is no doubt that this conference, one of the most important ever organized by the UIHJ and whose work will be published, will mark the ten years of Legal Europe of the Council of Tampere. What will the Legal Europe be in ten years time? No one can tell. But there is no doubt that the UIHJ will be there to follow closely the evolutions, to remain a force of proposal and to ensure that the judicial officers play a paramount role in this area which is from now on ours and to which one can only wish for a long life.
It remains to thank once again our Rumanian friends for their exceptional welcome and their direction for the organization which also made of this conference a great success in the field of conviviality and confraternity between people coming from all round the world, and in front of whom Ion Deleanu, Professor at the Law Faculty of Cluj-Napoca, was made Doctor Honoris Causa of the University at the term of a breathtaking ceremony.
