International conference of the UIHJ in Reims of November the 4, and 5 2005

An international conference in the land of Champagne

On November 4 and 5 2005 was held at the Faculty of Law of Reims an international conference organized by the UIHJ, with the participation of the French National Chamber of Judicial Officers and the Regional Chamber of Judicial Officers within the competence of the Court of Appeal of Reims.

This exceptional seminar brought together representatives of the European and international institutions, high-ranking magistrates, as well as French and European Judicial Officers French.

At the time of the No vote for the European Constitution, what is the weight of the European institutions in the creation of an area of freedom, security and justice called of its wishes by the European Summit of Tampere of October the 15, and 16 1999? And what is the place of the Legal professionals in the creation of this area?

To discuss it on a European and international level, the UIHJ, under the cane of its president, Jacques Isnard, organized this conference which joined together Legal professionals and representatives of the European and international institutions. The material organization of the conference was entrusted, in collaboration with the secretariat of the UIHJ, to President Jacques Bertaux, former president of the French National Chamber of Judicial Officers, President of the Regional Chamber of the Judicial Officers within the competence of the Court of Appeal of Reims and member of the UIHJ. Each participant could appreciate the considerable work carried out by this strong defender of the interests of the profession. President Bertaux animated the debates with the understanding that one knows to him. During two days, not less than 21 interventions followed one another at an intensive pace.

 

Importance of the various institutions and organizations European and international

After the welcoming speech of Gerard Clément, dean of the Law Faculty of Reims, which stressed the importance of the European stakes and was pleased with the very great competence of the speakers, president Bertaux recalled the prevalence of France in the reform of the legal professions and in particular of that of Judicial Officer in the Eastern European countries of Europe and the installation in many countries of a liberal Judicial Officer in, beneficially inspired of the French model.

In his introductory report, Jacques Isnard, president of the UIHJ, insisted on the importance of the various institutions and European and international organizations which are the European Commission, the Council of Europe, the European Commission for the efficiency of justice (CEPEJ), the European Court of Human rights (ECHR), the Court of Justice of the European Communities (CJEC) or the Hague Conference on private international law.

President Isnard stated that the conference aimed to show that the European area of justice was not built only in Brussels but was also forged through other interactive cores, whether they are of institutional origin or traditional essence. The legal co-operation, he indicated, encumbers essentially to the Member States but is also based on the initiative of actors who invest themselves to support the harmonization of national laws in contemplation of the Community instruments and European jurisprudence. The nongovernmental international organizations such as UIHJ also play an important part in the creation of an area freedom, security and justice and bring a position which seems appreciated by European institutional bodies, like the European Commission or the CEPEJ.

Anna Lamperova, permanent representative of the Slovak Republic at the Council of Europe, developed the topic of the Council of Europe as a vector of integration of the new Member States in the European Union. Mrs Lamperova took part in the construction of the current basis of the system of enforcement of court decisions in Slovakia and knows particularly well the profession of Judicial Officer.

The ambassadress of Slovakia at the Council of Europe stressed that the fall of the Berlin Wall in 1989 had many consequences on the social, economic life and policy of the countries and the European people. In the countries concerned, it was necessary to find and implement new rules of life and new orders in conformity with the new conditions. Justice was in many countries in a lamentable state and it was necessary to rectify this situation.

The results obtained in Slovakia after the implementation of the enforcement of court decisions via the Judicial Officers influenced in a positive way legal security noted Mrs Lamperova. The Council of Europe, while having for goal to harmonize the national legislations of the Member States and their rights around common principles, within the framework of its programs of legal co-operation, since helped the States to develop and reinforce their respective systems of enforcement of the court decisions in civil and commercial matters. The Council of Europe was in particular focused on the improvement of the procedures of enforcement and the practices of the enforcement agents, and gave rise to the recommendation (Rec) on 2003-17 adopted September 9, 2003 by the Committee of the Ministers of Justice of the Council of Europe.

 

The influence of the European legal institutions on a European level

Jean-Domenica Sarcelet, prosecuting attorney at the French Cassation Court, on behalf of Jean-Louis Nadal, General Attorney at the French Cassation Court, evoked in detail the consequences of the jurisprudence of the ECHR on the organization of the deliberation of the Cassation Court in France. Mr. Sarcelet successively evoked the new dynamics of the general Attorney at the Cassation Court defined from the jurisprudence of the ECHR on deliberation of the Cassation Court, the course of the procedure of audience at the Courtl and the missions of the General Attorney within this jurisdiction.

“The Court of Justice of the European Communities, pillar of the construction of the area of freedom, security and justice? ” Such was the fundamental topic approached by Philippe Leger, prosecuting attorney with the CJEC. In a clear speech illustrated by many jurisprudence, Mr. Leger in particular leant on the three distinct appeals existing in front of the CJCE: the prejudicial reference (which make it possible to rule on the interpretation of the Treaty like on the validity and the interpretation of the decisions taken by the institutions of the Community), the recourse in failure (which has as an aim, on the initiative of the Commission or a Member State, to sanction the violations of the Community rules by the Member States), and proceedings for annulment.

John Marston, president of High CourtEnforcement Officers Association (Association of the Judicial Officers of England and Wales), expert with the Council of Europe, explained the role of experts in this organization. After having pointed out the object of the Council of Europe, John Marston indicated that the Council of Europe was seeking the assistance of various legal professionals such as magistrates, professors of university, lawyers, notaries, Judicial Officers,... Our colleague revealed the particular lighting of the missions of expertise in the field of legal cooperation in civil matters relating to the enforcement of court decisions in many countries of the ex Soviet block.

Mrs Nicola Hesslen, president of the Association of the Judicial Officers of Sweden, approached the topic of “the area of freedom, security and justice or the awakening to a Scandinavian legal culture”. After having evoked the current situation in Scandinavia, where the enforcement of court decisions is carried out by civil servants Judicial Officers, and the harmonization of the procedures in Denmark, in Finland and Sweden, in particular through Scandinavian seminars organized regularly by the profession, Mrs Hesslen moreover developed the influences in Scandinavia of the European Convention on Human rights and of the judgements of the CJEC.

Jose Handbook Suarez Robledano, magistrate at the higher Court of justice of Madrid, spokesman of the Professional Association of the Spanish Judges, treated the subject of the reform of the profession of enforcement agents in his country, taking into consideration constitutional requirement and recommendation 17 of the Council of Europe of September 9, 2003. In Spain, the court decisions are currently carried out under the direction of the magistrate having ruled. The judge thus appoints a civil servant of the court to carry out the enforcement. In front of the chronic inefficiency of this system, Spanish Procuradores, who are highly qualified independent lawyers, are being delegated in an increasingly recurring way with the delicate mission of the enforcement of the decisions of court. Procuradores wish to legalize this situation while being based in particular on recommendation 17 of September 9, 2003 and on the support without fault of the UIHJ.

 

Co-operation and European integrity

Eberhard Desch, president of the CEPEJ, presented this European body as a model of co-operation with the professionals and a research laboratory for the European Union.

The European Commission for the Efficiency of Justice (CEPEJ) has been established on 18 September 2002 with Resolution Res(2002)12 of the Committee of Ministers of the Council of Europe. The aim of the CEPEJ is the improvement of the efficiency and functioning of justice in the member States, and the development of the implementation of the instruments adopted by the Council of Europe to this end. Its tasks are to analyse the results of the judicial systems, to identify the difficulties they meet, to define concrete ways to improve, on the one hand, the evaluation of their results, and, on the other hand, the functioning of these systems, to provide assistance to member States, at their request, and to propose to the competent instances of the Council of Europe the fields where it would be desirable to elaborate a new legal instrument (source: CEPEJ).

Elisabeth Schöberl, lawyer with the ministry of Economics in Austria, developed the topic of “the area freedom, security and justice, factor of processual harmonization of laws interns”, from the point of view of the Processual Law and enforcement. Mrs Schöberl treated its topic through the harmonization of the procedural rules on a European level and on an external level, by mentioning the problems of incompatibilities in particular being able to exist between the rules of the various Member States.
Our colleague Leo Netten, first vice-president of the UIHJ and Judicial Officer in Tilburg (Netherlands), that all the French Judicial Officers know since his two very noticed interventions in Paris in 2004 (one at the French Judicial Officers annual meeting, and the other at the Second seminar on debt collecting, presented recommendation 17 of September 9, 2003 of the Committee of the Ministers of the Member States of the Council of Europe. This recommendation is fundamental and founder for the profession of Judicial Officer in Europe since it has the aim of posing, at the European level, the general principles of the enforcement agent in charge of the enforcement.

Roger Dujardin, Judicial Officer in Antwerp (Belgium), vice-president of the UIHJ, showed, during a remarkable intervention, how the liberal Judicial Officer could constitute a guarantee against the corruption and the bleaching of the money. He in particular recalled that the Judicial Officer is invested of a part of the public authority and influence in the exercise of his ministry the interests of the community and the citizens. His impartial and independent character and his professional liability make of him a trusting agent impermeable to the corruption and the bleaching of the money but also an insuperable barrier with these plagues, which are unfortunately too frequent in certain States.

Mr Ioannis Mouratidis, Judicial Officer in Thessalonica (Greece), UIHJ expert, mentioned the problem of the responsibility for the late enforcement or the inexecution of an enforceable title. He stated in particular that if the Judicial Officer, whatever his legal statute, answers of his faults in the enforcement, for the ECHR, it is the State which remains the sole guarantor of enforcement.

 

Judicial Officers, essential elements of the State of law

Then Corneliu Birsan, judge of the ECHR, treated the influence of the jurisprudence of the ECHR in the composition of a mode of the provisional measures and in the construction of the area of justice in Europe. Mr. Birsan pointed out that the goal of the ECHR is to establish a true European law and order which, in fact, corresponds to a European legal area in the field of the protection of the human rights, law and order in which these rights are not theoretical and illusory, but concrete and effective.

This intervention was followed by that of Ireneu Cabral Barreto, judge with the ECHR, on the effects and the limits of the jurisprudence of the ECHR on the Portuguese internal legal and judicial order. Mr. Barreto concluded his intervention by quoting the Pinti decision from the ECHR of June 22, 2004: “. the Judicial Officers work in the interest of a good administration of justice, which makes them an essential element of the States of law; it is up to the State to take all measurements necessary so that they can conclude the task of which they were invested, in particular in their ensuring the effective contest of the other authorities which can lend strong hand to the enforcement whenever it is required”.

 

Next stages of the creation of a European legal area

The Hague Conference on private international law was represented by its first secretary, Philippe Lortie, who undertook to present the common points between his international organization and the European Union. Mr. Lortie has recalled that the Judicial Officers daily use - often without the knowledge - the Hague Convention of November 10, 1965 relating to the service abroad of judicial and extrajudicial documents in civil or commercial matters, convention drawn up by the Hague Conference with the assistance of the UIHJ. Mr. Lortie indicated that through its 65 Member States, of its network of 124 States and some 37 conventions now in force, the Hague Conference takes an active part in the development of the standard, in particular in the field of the service of documents and the enforcement of court decisions. To be convinced, it is enough to read the text of the convention of November 10, 1965: (EC) Regulation n°1348/2000 of May 29 2000 was very strongly inspired by it.

Katja Lenzing, administrator at the European Commission (Civil justice Unit) evoked the next stages in the creation of a true legal area. The program of Tampere ended in 2004, she recalled, and was replaced by the program of The Hague of 2004, which constitutes the roadmap of the European Commission for the five next years. Among the works are the Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (known as Brussels I) and the 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. A green book on the seizure of the banking assets at the European level is scheduled for April 2006. The provisional and interlocutory measures are also with the program, as well as the patrimonial transparency, the European order for payment and a Small claims payment. The Commission also envisages working in the field of the minimum standards of civil procedure, in particular in the field of the service of documents.

 

Towards a European Coordination Committee for Justice in France

To brilliantly close this conference before the summary report, Jean-Paul Spinelli, member of the board of the UIHJ and delegated vice-president, created the event by evoking the installation of a European Coordination Committee for Justice in France, which would serve as referent to the European organizations and the actors of the area of freedom, security and justice. This committee could have an internal objective of action, for the data exchange improving the professional exercise or the modification of the statutes of the Judicial Officers, and an external objective of action, through expertises near the European bodies and the participation in the sessions of these bodies.

With an extraordinary ease, Natalie Fricéro, professor at the Faculty of Law of Nice (France), discharged the very delicate mission of presenting a lively and coherent summary report of the innumerable interventions of the conference. It is under the angle of the professionals that professor Fricéro very precisely chose to build her presentation. In a first part, the professionals were introduced as being the guarantors of the efficiency of the area of freedom, security and justice with, on the one hand, the placement of common standards as well within the framework of the European Union as in that of the Council of Europe, and on the other hand the guarantee of the right to enforcement, doubly ensured by the State and the Judicial Officers. In a second part, the illustrious professor introduced the professionals like the actors of the development of an area of security, freedom and justice, through a organized participation in the work of the European institutions (e.g. professionals recruited as experts at the Council of Europe or collaborators or observers for European organizations), and in addition a spontaneous participation in the construction of the area of justice thanks to original initiatives emanating from the professionals, like in particular the proposal for a creation of the European Coordination Committee for justice in Europe.

In his closing speech, Paul Rochard, vice-president of the French National Chamber of Judicil Officers (NCHJ), indicated that the CNHJ was ready to support the project presented by Jean-Paul Spinelli and to ensure a logistical support and material to him. Mr Rochard thanked all the participants for the very great quality of their interventions as well as the UIHJ, represented by its president, Jacques Isnard, and President Bertaux, to have worked in the realization of this historical event. In fact, it was the first time indeed that a conference, which should be the subject of a publication in the next months, joined together as many actors of the European construction, tending to prove the very great strength of the profession of Judicial Officer on the international level.