Aspects Concerning the Judiciary Cooperation of the European Union Member States in Civil and Commercial Matters

Autor:Roxana Anca Bularca; Cătălina-Georgeta Matei
Páginas:138-162
RESUMO

The paper presents the development and the implementation of the judicial co-operation and the common policies in civil and commercial matters regarding the administration of evidence as part of judicial research. The European Union Treaty has been followed by a series of communitarian regulations referring to issues that have been discussed by the Member States. Therefore, the judicial co-operati... (ver resumo completo)

 
ÍNDICE
TRECHO GRÁTIS

Roxana Anca Bularca.Assistant Prof., Transilvania University of Braşov, Law and Sociology Faculty, Department of Private Law, B-dul Eroilor, no. 25, Braşov, Romania; Judge, Brasov County Court, Romania.

Cătălina-Georgeta Matei. Assistant Prof., Transilvania University of Braşov, Law and Sociology Faculty, Department of Private Law, B-dul Eroilor, no. 25, Braşov, Romania; Expert, the Ombudsman Office from Brasov, Romania.

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For individuals and companies to be able to exercise their rights wherever they might be in the European Union, the incompatibilities between Member States will have to be removed. For example, at the Tamper European Council in October 1999, European Union leaders presented three priorities for action, mutual recognition of decisions judicial decisions and increased convergence in the field of civil law. Further more, the Council adopted a decision establishing a European judicial network in civil and commercial matters. These instruments aim to improve the judicial co-operation in practice. Since 1968, the European governments have agreed on common rules on jurisdiction and enforcement of judgements in civil and commercial areas. Going further, the Treaty of Amsterdam made judicial co-operation in civil matters a European Community policy linked to the free circulation of people.

1 The communication of judiciary and extrajudiciary documents in civil and commercial matters

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Judicial cooperation of EU member states also entails ensuing equivalent trial related rights to all European nationals who are parties or participants in civil or commercial law suits tried in courts located in any of these states.

In relation to the communication of judiciary and extrajudiciary documents in civil and commercial matters the Regulations of the Council of the European Union no. 1348 of 29 May 2000 were adopted. This is a mandatory deed in all its elements and is directly applied in all member states in accordance with the Founding Treaty of the European Community.

In order to adopt the Regulations of the Council of the European Union in relation to the Founding Treaty of the European Community, art. 61 (c) and art. 67 par. (1) in particular took into consideration the following priorities:

The Union was founded with the objective of maintaining and developing as a space of freedom, security and justice, within which the free circulation of persons is ensured. For the stepwise achievement of such a space, the Community has to adopt, inter alia, measures concerning the judiciary cooperation in civil matters, required for an adequate functioning of the internal market.

The good functioning of the internal market requires an improved and accelerated conveying of judiciary and extrajudiciary documents in civil and commercial matters, for an adequate communication between the member states.

In accordance with the principles of subsidiarity and proportionality stated under art. 5 of the Treaty, the objectives of the Regulations, while not sufficiently achievable by the member states, can be consequently accomplished at Community level. The Regulations do not exceed the limits of aspects necessary for the achievement of these objectives.

The efficiency and celerity of judicial actions in civil matters entail the direct and rapid transmission of judicial and extrajudicial documents between the local authorities appointed by the member states. The member states, however, may appoint either aPage 140 transmitting and a receiving authority, or one authority fulfilling both functions for a five year period. This mandate is renewable every five years.

The celerity of transmission justifies the imposing of adequate means, while satisfying conditions related to the legibility and fidelity of the received document. The security of the transmission requires the conveyed document to be accompanied by a standard form to be filled in in the language of the location of communication or in another language accepted by the respective member state.

In order to ensure the efficiency of the Regulations, the option of rejecting the communication of the documents is restricted to exceptional situations.

The celerity of transmission justifies the communication of the documents within few days from receipt. If communication has not been completed within a month, the receiving authority is required to duly inform the sending authority. The expiry of this deadline does not involve the return of the request by the transmitting authority if it follows clearly that communication is achievable within a reasonable time interval.

In order to protect the interests of the recipient it is required for the communication too, to be made in the official language or in one of the official languages of the place of delivery, or in another language of the transmitting member state understood by the recipient.

Given the differences between the member states in relation the norms of procedure, the date effectively taken into consideration for communication varies from one member state to another. Under these circumstances and considering the difficulties that may appear the Regulations need to provide a system allowing the legislation of the receiving member state to establish the date of communication. Nevertheless, when the documents in question need to be communicated by a fixed deadline within a procedure to commence or already on docket in the transmitting member state, the date taken into consideration in relation to the petitioner is established by the law of the transmitting member state. A member state may, however, given justified cause, benefit from derogation from the above provisions for a transitory five year period.

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Such derogations can be renewed by a member state at five year intervals, based on considerations related to its judicial system.

The Regulations prevails over the provisions of bilateral or multilateral agreements with the same field of applicability closed between member state, in particular over the Protocol appended to the Brussels Convention of 27 September 1968 and the Hague Convention of 15 November 1965 (ratified by Romania by Law no. 124/2003 published in the Official Bulletin of Romania no. 265 of 16.04.2003) concerning the relationships of member states that are parties of these instruments. This however does not impede the member states to maintain of to close agreements or conventions for the purpose of accelerating of simplifying the transmission of documents, provided these agreements and conventions are compatible with the Regulations in question.

Information transmitted in accordance with the provisions of the Regulations need to benefit from an adequate protective regime. This desideratum falls under the applicability of Directive 95/46/CE of the European Parliament and Council of 24 October 1995 concerning the protection of natural persons in relation to the processing of personal data, and concerning the free circulation of these data, as well as under the applicability of Directive 97/66/EC of the European Parliament and Council of 15 December 1997 concerning the processing of personal data and the protection of private life in telecommunications.

The required measures for the application of the Regulations are adopted in accordance with Council Decision 1999/468/EC of 28 June 1999 concerning the establishing of the modalities for exercising the competences of application assigned to the Commission.

The measures include also the devising and updating of a manual via adequate modern means.

Three years, at the latest, after the coming into force of this Regulations, the Commission needs to examine the modality of its application and, if the case, will propose modifications.

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The Regulations is applied in civil and commercial matters when a judiciary or extrajudiciary document has to be transmitted from one member state to another in view of communication. This is not applicable when the address of the recipient is not known.

The Regulations refer to the institution of “transmitting authority” and of “receiving authority” for the completion of summoning/subpoena and communication procedures on the territory of the European Union.

Each member state appoints civil servants, authorities or other persons, called “transmitting authorities”, competent to transmit judiciary or extrajudiciary documents to be communicated in another member state.

Each member state appoints civil servants, authorities or other persons, called “receiving authorities”, competent to receive judiciary or extrajudiciary documents to be communicated from another member state.

A member state may also appoint a transmitting and receiving authority to carry out both functions, the relevant information in relation to this authority being communicated to the Commission.

The member states inform the Commission on any subsequent modification of the conveyed data. Such informing is achieved by means of the “central responsible authority”.

Each member state appoints a “central responsible authority” for the completion of the following functions: providing information to the transmitting authority, identification of solutions to difficulties occurring in the transmission of documents to be communicated, and transmission – in exceptional cases and upon request from the transmitting authorities – of a request of communication to the competent receiving authority.

The judiciary documents are transmitted directly and as swiftly as possible between the appointed authorities.

The transmission of documents, requests, confirmations of receipt, evidence of delivery and of any other documents between the transmitting and the receiving authorities can be made by any adequate means, provided that the accordance and conformity of content of the received...

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