Abstract
Mutual trust is the bedrock of the EU’s internal policy regarding judicial cooperation. When it comes to cooperation with third States, however, there seems to be a blind spot. Indeed, despite the increasing importance of foreign trade, most—if not all—FTAs concluded by the EU remain silent on judicial cooperation. Such a result is unfortunate, since the combination of trade agreements and judicial cooperation measures would certainly foster foreign trade. Therefore, this contribution discusses possible options, including grounds of competency of the EU, that could improve the current situation.
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Notes
- 1.
See also Institut de Droit International (Session de Genève 1874) Resolution “Utilité d’un accord commun des règles uniformes de droit international privé”. http://www.idi-iil.org/app/uploads/2017/06/1874_gen_01_fr.pdf. Accessed 7 June 2018.
- 2.
See e.g. Recital 3 of Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), OJ L 351, pp. 1–32.
- 3.
http://ec.europa.eu/eurostat/statistics-explained/index.php/International_trade_in_goods. Accessed 7 June 2018.
- 4.
Ibid.
- 5.
Even larger is the volume of Intra-EU trade, see Eurostat, n. 4: “Trade in goods between EU Member States (intra-EU trade) was valued—in terms of dispatches—at EUR 3110 billion in 2016. This was 78% higher than the level recorded for exports leaving the EU-28 to non-member countries of EUR 1745 billion (extra-EU trade).” Taking intra-EU exports and imports together, these trade flows almost double the size of extra-EU trade.
- 6.
DG Trade (2016) Strategic Plan 2016–2020. http://trade.ec.europa.eu/doclib/docs/2016/august/tradoc_154919.pdf and https://ec.europa.eu/info/sites/info/files/strategic-plan-2016-2020-dg-estat_march2016_en.pdf, p. 6. Accessed 7 June 2018.
- 7.
Ibid., p. 4.
- 8.
Ibid., p. 6.
- 9.
Ibid.
- 10.
http://ec.europa.eu/trade/policy/countries-and-regions/agreements. Accessed 7 June 2018.
- 11.
European Commission (2017) Overview of FTA and Other Trade Negotiations. http://trade.ec.europa.eu/doclib/docs/2006/december/tradoc_118238.pdf. Accessed 7 June 2018.
- 12.
European Commission (2016) The European Union Trade Policy 2016. http://trade.ec.europa.eu/doclib/docs/2011/august/tradoc_148181.pdf, p. 22. Accessed 7 June 2018.
- 13.
European Commission (2015) Trade for All. Towards a More Responsible Trade and Investment Policy. http://trade.ec.europa.eu/doclib/docs/2015/october/tradoc_153846.pdf, p. 22, sub 4.2.: “A trade agenda to promote sustainable development, human rights and good governance”. Accessed 7 June 2018.
- 14.
To conceive (somewhat idealistically) of trade as a vehicle for deeper values than just economic benefits has roots in, inter alia, e.g. the conceptual thinking of the time of the Enlightenment, see Kant (1795/96), in translation (provided by the author of this text): “It is the spirit of trade that cannot go together with war, and sooner or later this spirit will cast its spell on each and every people.”.
- 15.
Currently under renegotiation. http://ec.europa.eu/trade/policy/countries-and-regions/countries/mexico. Accessed 7 June 2018.
- 16.
See e.g. Article 20: Cooperation in relation to matters of the information society; Article 21: Cooperation in agriculture and the rural sector; Article 22: Cooperation on mining; Article 23: Cooperation on energy; Article 24: Cooperation on transport; Article 25: Cooperation on tourism.
- 17.
The text was finalized in 2016, but is currently undergoing legal review. http://ec.europa.eu/trade/policy/countries-and-regions/countries/vietnam. Accessed 7 June 2018.
- 18.
See European Commission (2015) n. 14 at p. 4.
- 19.
The consequence is that if, for example, a German claimant wants to serve process against a Singaporean Party, this will have to be done under the Convention between His Majesty and the President of the German Reich regarding Legal Proceedings in Civil and Commercial Matters of London, March 28, 1928.
- 20.
European Council (3 March 2005) Hague Programme: Strengthening Freedom, Security and Justice in the European Union, OJ C 53, pp. 1–14.
- 21.
Ibid., p. 14, sub 4.
- 22.
European Council (11 April 2006) Council Doc. 8140/06, http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%208140%202006%20INIT. Accessed 7 June 2018.
- 23.
Ibid., p. 3, sub II.2.a., para. 8.
- 24.
Ibid., para. 9.
- 25.
Ibid., para. 13 et seq.
- 26.
Ibid., para. 16 and 17.
- 27.
Ibid., para. 18 and 19.
- 28.
Ibid., para. 29.
- 29.
Ibid., para. 31.
- 30.
Ibid., para. 32.
- 31.
http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html. Accessed 7 June 2018.
- 32.
MERCOSUR can be characterized by its piecemeal legislation on judicial cooperation. In particular, the following instruments have been adopted: the Las Leñas Protocol on judicial cooperation, the Buenos Aires Protocol on international jurisdiction in contractual matters, the Protocol on precautionary measures, the International Commercial Arbitration Agreement, and the Agreement on legal assistance, all available at http://www.sice.oas.org/Mercosur/instmt_e.asp. Accessed 7 June 2018. The most comprehensive instrument, the Las Leñas Protocol, deals with judicial cooperation and assistance in civil, commercial, labour and administrative matters. The Protocol adopted a system of cooperation based on letters rogatory, which evidently does not reflect a high level of mutual trust between the states of MERCOSUR. For a deeper analysis on judicial cooperation in MERCOSUR, see Arroyo (2010); Tiburcio (2010); Weller (2017/1, 785 et seq.).
- 33.
This provision has no equivalent in the TFEU because its mission was entirely accomplished once the competency of Article 81 TFEU was established.
- 34.
https://curia.europa.eu/common/recdoc/convention/en/c-textes/brux-idx.htm. Accessed 7 June 2018.
- 35.
European Council (5–6 December 1977) Conclusions of the Presidency. http://www.consilium.europa.eu/media/20779/bruxelles_december_1977__eng_.pdf, sub VIII (at the very end). Accessed 7 June 2018.
- 36.
Proposition de Valéry Giscard d'Estaing sur la mise en place d'un espace judiciaire européen (5 December 1977). http://www.cvce.eu/obj/proposition_de_valery_giscard_d_estaing_sur_la_mise_en_place_d_un_espace_judiciaire_europeen_bruxelles_5_decembre_1977-fr-c7f7171f-f73a-4ab4-829e-faa221acaeca.html. Accessed 7 June 2018. On details of the history see Menuet (2006, 21 et seq.).
- 37.
See Arts. 61 lit.c, 65 EC.
- 38.
Association agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part (30 August 2014), OJ L 261/4, pp. 4–743.
- 39.
Association agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part (30 August 2014), OJ L 260/4, pp. 4–738.
- 40.
Association agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part (29 May 2014), OJ L 161/3, pp. 3–2137.
- 41.
European Council (11 April 2006), n. 23, p. 5 para. 19.
- 42.
Emphasis added by this author.
- 43.
ECJ, Opinion 1/03 of 7 February 2006—Lugano Convention. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:62003CV0001:EN:HTML. Accessed 7 June 2018.
- 44.
Ibid., para. 34.
- 45.
Article 65(a) lemma 3 EC: “Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and insofar as necessary for the proper functioning of the internal market, shall include: the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases.”
- 46.
Ibid., para. 114: “The competence of the Community to conclude international agreements may arise not only from an express conferment by the Treaty but may equally flow implicitly from other provisions of the Treaty and from measures adopted, within the framework of those provisions, by the Community institutions (see ERTA, paragraph 16). The Court has also held that whenever Community law created for those institutions powers within its internal system for the purpose of attaining a specific objective, the Community had authority to undertake international commitments necessary for the attainment of that objective even in the absence of an express provision to that effect (Opinion 1/76, paragraph 3, and Opinion 2/91, paragraph 7).” And further in para. 116: “In paragraph 17 of the ERTA judgment, the Court established the principle that, where common rules have been adopted, the Member States no longer have the right, acting individually or even collectively, to undertake obligations with non-member countries which affect those rules. In such a case, the Community also has exclusive competence to conclude international agreements.”
- 47.
Article 216(1) TFEU: “The Union may conclude an agreement with one or more third countries or international organisations where the Treaties so provide or where the conclusion of an agreement is necessary in order to achieve, within the framework of the Union's policies, one of the objectives referred to in the Treaties, or is provided for in a legally binding Union act or is likely to affect common rules or alter their scope” (emphasis added by this author).
- 48.
Article 3(2) TFEU: “The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope” (emphasis added by this author).
- 49.
ECJ, n. 46, para. 172 et seq.: para. 172 f.: “The new Lugano Convention would affect the uniform and consistent application of the Community rules as regards both the jurisdiction of courts and the recognition and enforcement of judgments and the proper functioning of the unified system established by those rules. It follows … that the Community has exclusive competence to conclude the new Lugano Convention.”
- 50.
Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000, OJ L 324, pp. 79–120.
- 51.
Council Regulation (EC) No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, OJ L 174, pp. 1–24.
- 52.
On the controversy over this issue see e.g. Schulze (2007), 942 et seq.
- 53.
Council Decision 2006/719/EC of 5 October 2006 on the accession of the Community to the Hague Conference on Private International Law, OJ L 297/1, pp. 1–14.
- 54.
Council Decision 2014/887/EU of 4 December 2014 on the approval, on behalf of the European Union, of the Hague Convention of 30 June 2005 on Choice of Court Agreements, OJ L 353, pp. 5–8.
- 55.
Council Decision 2016/414/EU of 10 March 2016 authorising Austria to sign and ratify, and Malta to accede to, the Hague Service Convention 1965, OJ L 75, pp. 1, 2.
- 56.
Protocol 21 to the Lisbon Treaty.
- 57.
Protocol 22 to the Lisbon Treaty.
- 58.
ECJ, Opinion 2/15 of 16 May 2017.
- 59.
Ibid., para. 292.
- 60.
Compare GA Eleanor Sharpston, Opinion 2/15 of 21 December 2016, para. 525: “Where the European Union has competence as regards the substantive provisions of an international agreement, it also enjoys competence as regards the dispute settlement mechanisms which aim to ensure that those provisions are effectively enforced. Such mechanisms merely help to achieve the primary objectives of the agreement and are thus accessory to the (substantive) rules to which they relate.”
- 61.
Ibid.
- 62.
See also Born’s and Butler’s draft Model BAT. https://www.victoria.ac.nz/law/about/staff/petra-butler/Draft-Model-BAT.pdf. Accessed 7 June 2018.
- 63.
For an in-depth analysis (with a very liberal approach) see Cuniberti (2017).
- 64.
See Article VII (1) New York Convention.
- 65.
See Forster EM, Howards End, 1910: “Only connect the prose and the passion, and both will be exalted, and human love will be seen at its height. Live in fragments no longer. Only connect, and the beast and the monk, robbed of the isolation that is life to either, will die”, if it is appropriate to cite an English novelist in the sober context of judicial cooperation.
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Weller, M. (2018). Judicial Cooperation of the EU in Civil Matters in Its Relations with Non-EU States—A Blind Spot?. In: Uzelac, A., van Rhee, C. (eds) Transformation of Civil Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 70. Springer, Cham. https://doi.org/10.1007/978-3-319-97358-6_4
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