As president of the UIHJ, Leo Netten is member ex-officio of the Council of the European Law Institute (ELI) seated in Vienna (Austria).
The ELI is an independent non-profit organisation created in 2011 established to initiate, conduct and facilitate research, make recommendations and provide practical guidance in the field of European legal development. Building on the wealth of diverse legal traditions, its mission is the quest for better law-making in Europe and the enhancement of European legal integration. By its endeavours, ELI seeks to contribute to the formation of a more vigorous European legal community, integrating the achievements of the various legal cultures, endorsing the value of comparative knowledge, and taking a genuinely pan-European perspective. As such its work covers all branches of the law: substantive and procedural; private and public.
The meeting was held in the premises of the prestigious University of Zagreb (Croatia), created in 1776, one of the oldest in the region and one of the largest, with more than 6,000 students. During the opening ceremony Hrvoje Sikiric, Dean of the Faculty of Law, University of Zagreb, Aleksa Bjelis, rector of the University of Zagreb, Diana Wallis, president of ELI, and Orsat Miljenic, Minister of Justice of Croatia took the floor.
For three days successive the reports prepared by the Projects Conference were presented, including Business Rescue in Insolvency Law, Statements on EU Copyright Rules, prevention and Settlement of Conflicts of Exercice of Jurisdiction in Criminal Law, and transposition of Transnational Principles to European Rules of Civil Procedure.
Three panels were organized. The first panel concerned Collective redress/Competition Damages Claims. The second panel was entitled “The Future of Human Rights Litigation in Europe”.
The third panel focused on Future ELI projects and Increased Involvement of Practitioners. It was chaired by Christiane Wenderhorst, Vice-President of ELI. The panellists were Paul Gilligan, President of the European Network of Councils for the Judiciary (ENCJ), Branko Hravtin, President of the Supreme Court of Croatia, Vice-President of the Network of Presidents of Supreme Judicial Courts of the European Union, Alasdair Lewis, President of the European Land Registry Association (ELRA), André Michielsens, President of the Council of the Notariats of the European Union (CNUE), Leo Netten, President of the UIHJ and Maria Slazak, First Vice-President of Council of Bars and Law Societies of Europe (CCBE).
The gathering of expertise and ideas from renowned experts in all branches and professions of the law is the very essence of the ELI. The input of colleagues such as judges, lawyers, notaries and jurists involved in government or the legislative process is of particular importance. Yet there are obstacles to the involvement of such professionals who typically suffer from extremely busy schedules and are in demand from several sources.
This panel session invited panellists and audience members to focus on questions such as:
By what methods can the ELI ensure that colleagues from legal practice can effectively and meaningfully engage I ELI project work?
What is an information strategy that best permeates the ever increasing load og information with which legal experts are confronted and enables them to follow and contribute to the collective endeavours of the ELI?
Which pressing legal issues require the attention of the ELI, and how can the ELI address topics and produce results which are useful to practitioners?
For his part, Leo Netten, developed the arguments reproduced below.
The president of the UIHJ particularly highlighted the draft Global Code of Enforcement prepared with the assistance of its Scientific Council. Diana Wallis stressed the importance of enforcement of judgments for ELI and the need for professionals to be fully integrated in the projects.
Presentation of Leo Netten, President of the UIHJ
By what methods can the ELI ensure that its activities and information can penetrate the ever increasing load of information with which legal practitioners are confronted, ensuring that they can efficiently follow and contribute to the collective endeavours of the ELI?
Which current legal issues require attention of the ELI?
How can the ELI address topics and produce results which are useful to practitioners?
The three questions are related.
To answer these questions, we should refer to the primary objectives of the institute:
The European Law Institute, founded in June 2011 as an entirely independent organization, aims to improve the quality of European law, understood in the broadest sense. It seeks to initiate, conduct and facilitate research, to make recommendations, and to provide practical guidance in the field of European legal development.
1. First objective: Improve the quality of EU legislation
Professionals are able to provide practical experience in the application of EU law. Their difficulties show miscarriage of this legislation.
Their skills allow them to propose solutions.
Through their activities, professionals can select European instruments that directly affect them, in particular those they are in charge of carrying out. They can identify theirs strengths and weaknesses and finally propose areas for improvement.
Regarding the profession of enforcement agent, some regulations are at the heart of our activities; to name but the most important:
- Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast of 44/2001);
- Regulation 805/2004 creating a European Enforcement Order;
- Regulation 1393/2007 on the cross-border service of documents;
- Regulation 1896/2006 establishing a European Order for Payment procedure;
- Regulation 655/2014 establishing a European Attachment of Bank Accounts;
- Regulation 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters.
In 2009, an important conference was organized by the UIHJ in Sibiu (Romania) on the service of documents in Europe. The aim was to improve the information to individuals and the legal security resulting from this information. Based on a field survey in all EU countries, the conference allowed us to propose a directive on the document initiating proceedings. The project, still valid, seems to register in the objectives of the ELI.
It appears here that practitioners can guide the ELI to a project to improve the European judicial system. Indeed, the document initiating proceedings concerns no less than 5 EU regulations and is their cornerstone:
- Regulation No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (revision of 44/2001);
- Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility
- Regulation 805/2004 creating a European Enforcement Title;
- Regulation 1393/2007 on the Cross-border Service of Documents;
- Regulation 861/2007 establishing a European Small Claims Procedure
This document is the founding step of any court proceeding. It seals, as such, all of the plaintiff's claims against his opponent over which the judge has a duty to rule under penalty of denial of justice. It materialises the cradle of the object of dispute and ensures the adversarial principle as well as the rights of the defence. This document represents the centrepiece of any legal action as part of a vector of information for both parties and sometimes for the judge too, according to the conditions of its handing. It helps to inform the defendant on all legal and factual elements on which the applicant intends to base his claim. In addition, when it is served by a judicial officer or a duly authorised agent, the document initiating proceedings gives the judge the opportunity to appreciate the conditions under which the defendant was summoned to appear. It also shows the information provided to him and ensures he was duly informed. In a community context, it is very beneficial for the judges required to rule a cross-border dispute.
It is therefore necessary to picture the scope of this document in relation to its influence in the area of enforcement of the court decision.
Thus this project, which may at first appear as a procedural detail covers many domains through its transversality and proves to be truly crucial for legal certainty.
2. Second objective: Initiate, lead, facilitate research, make recommendations and provide practical advice in the field of European legal development
Two factors seem to guide todays' reflections in many areas, including legislative legal innovation: globalisation and the economic crisis.
Professionals and especially enforcement agents cannot escape the constraints of these two elements.
The proper enforcement of court decisions allows the development of economic and social fabric.
It seemed important for the UIHJ to harmonise the principles of this enforcement through a Global Code of Enforcement.
The reasons for this:
First: We live in a time of globalisation. The internationalisation of disputes and the enforcement of judgements is a reality no one argues.
Enforcement titles circulate around states worldwide... so we should seek global rules.
Second: Today, the financial crisis places the need for enforcement (in its broad sense including: mediation, debt collection) in the foreground. There is a strong influence of the economic crisis on the enforcement and a strong influence of the enforcement on economic crisis. (See Doing Business: The report emphasizes the effectiveness of the judicial system).
Many international statements reaffirm the need to promote the rule of law and all states of the world are concerned.
People, companies will start economic relationship only if they can have some guarantees, some knowledge of what will happen if the contract fails to indeed install a mutual trust between economic operators. Readability and efficiency are the key words for economic success.
We agreed on having rules easily transferable to propose a harmonisation.
We should propose a model, standards.
These standards should define the ideal enforcement procedures. They could be implemented to work with various national systems. For example, we can consider that the debtor should be exercising his rights of defence in enforcement proceedings: but then it is up to the State to define the suitable appeal system. Reflection could lead to proposals for the creation of “global standards for enforcement”.
The Global Code of Enforcement contains the definition of the global standards of enforcement necessary to promote a fair and effective enforcement system.
- Part 1 defines the "Basic Principles";
- Part 2 concerns "Enforcement Agents";
- Part 3 deals with "The Judicial Authorities";
- Part 4 defines the "Common Provisions Regarding Enforcement Measures";
- Part 5 concerns "Common Provisions Regarding Provisional Measures".
This set of principles is intended to structure the forced enforcement of court decisions. According to the definition adopted in Recommendation Rec(2003)17 of 9 September 2003 by the Council of Europe, enforcement means "the putting into effect of judicial decisions, and also other judicial or non-judicial enforceable titles in compliance with the law which compels the defendant to do, to refrain from doing or to pay what has been adjudged.”
The Global Code of Enforcement relates to principles that should govern various procedures to compel, according to the law, a person to enforce the enforcement title. These principles should be universally recognised.
One of the results of this Global Code could lead to another study.
The collaboration between UIHJ and ELI can be illustrated through the idea of new participatory methods of enforcement (Soft Enforcement), in which the failing party could take an active part.
This theme could cover four goals.
- The participation of the parties in enforcement
When a court decision can no longer be challenged, the debtor should be able to take part in its enforcement through a process of benefit of discussion of his movable assets.
- The declaration and identification of assets
The quality of cross-border relationships encouraged by the EU passes through the guarantees of enforcement in the event of non-performance of contracts.
In various European countries transparency of assets takes various forms (books, registration, declaration) so it seems imperative for the professionals we are to determine the best solution in this area and to provide recommendations regarding knowledge of property belonging to individuals. This includes a prior study on the classification of goods.
- The implementation of guarantees
Provisional measures and guarantees should be implemented quickly and efficiently in all European countries.
- Fulfilling one's obligations
This idea is to monitor the progress of enforcement of the decision and consider the sanctions that could be taken against a failing debtor.
For example, should criminal sanctions be introduced in a civil trial? This in-depth debate probably deserves to be discussed at European level.
Others topics could serve as a basis of a collaboration between ELI and practitioners, for instance through legal means of evidence such as statement of facts, a precious help for judges having to render judgment or simply a decisive help for the justice system by avoiding trial by providing enough evidence to the parties.
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