Enhancing Mutual Trust – Codification of the European Conflict of Laws Rules: Some of the EU Commission’s Visions for the Future of EU Justice Policy

by Gilles Cuniberti on March 19, 2014

By Matthias Weller Prof. Dr. Matthias Weller, Mag.rer.publ., Chair for Civil Law, Civil Procedure and Private International Law, EBS University of Economics and Law; Director of the Research Center for Transnational Commercial Dispute Resolution, EBS Law School  On 11 March 2014 the European Commission presented its vision for the future EU justice policy until 2020. In its Press Release “Towards a true European area of Justice: Strengthening trust, mobility and growth”, the Commission identifies three key challenges after the forthcoming end of the European Council’s Stockholm Programme on 1 December 2014: Enhancing mutual trust, facilitating mobility and contributing to economic growth. Against the background of the “Assises de la Justice” held in Brussels in November 2013 the Commission, by outlining its own vision of the future EU justice policy, intends to further feed the discussion on the way to the European Council on 24 June 2014. The most comprehensive document is the Communication on the EU Justice Agenda for 2020 – Strengthening Trust, Mobility and Growth within the Union (COM [2014] 144 final of 11 March 2014. In this document the Commission, after summarizing the development of the European area of freedom, security and justice from Maastricht via Amsterdam and Nice to Lisbon as well as from the European Councils at Tampere via The Hague to Stockholm, further substantiates what it means by the three key challenges identified in its press release: Firstly, “mutual trust” is evoked as the “bedrock upon which EU justice policy should be built”, namely by “building bridges between the different justice systems”, in particular by mutual recognition. Whereas the European legislator has so far simply postulated a sufficient degree of mutual trust amongst the Member States in order to justify obligations for mutual recognition in respect to the judicial cooperation in civil matters, the European Commission now is acknowledging that mutual trust must be strengthened or even built in the first place – a view that has up to now been taken only in respect to criminal matters. But with only 24% of people trusting their own national justice system for example in Slovenia, or 25% in Slovakia, it appears hardly possible to continue presuming a sufficient level of trust, let alone mutual trust. In this context, the Commission suggests a new framework to safeguard the rule of law in the European Union. In its Communication to this proposal, the Commission explains that this framework is to operate as a “pre-Article 7 TEU procedure” addressing “systemic threats” to the rule of law consisting of three stages, namely a “rule of law warning” to be issued by the Commission to the respective Member State, a “rule of law recommendation” and on the third level a monitoring of the implementation of the recommendations before resorting to the “nuclear option” of Article 7 TEU that allows under certain conditions the suspension of (mainly voting) rights of Member States under the Treaties. The Commission makes crystal clear that its initiative is not meant to deal with individual breaches of fundamental rights or any miscarriage of justice in a particular case. Infringements of the rule of law other than “systemic” ones are to be taken care of – as before – by the national judicial systems including those provided for by the European Convention on Human Rights. However, if some national judicial systems are perceived by the public or even evaluated by the Commission under its proposed pre Article 7 TEU procedure not to be sufficiently trustworthy, there is a problem both conceptually for building bridges through mutual recognition to the judicial system of such a Member State as well as for the individual suffering or threatened to suffer from a (non-systemic) violation of the rule of law in his / her particular case. One answer to the individual’s problem obviously is allowing exceptions to mutual recognition, i.e. public policy-clauses. Therefore, if the Commission is now acknowledging that there may be the need to strengthen mutual trust in respect to certain Member States, it would be contradictory to further pursue at the same time limitations or even deletions of public policy clauses as it was proposed for the Brussels I Recast. Rather, the Commission itself should trust the Member States that they do not misuse public policy exceptions. Mutual trust does not only operate horizontally but also vertically. It is difficult enough for the aggrieved party to argue and prove a case of violation of public policy. An obvious question not raised by the Commission in this context would be whether initiating pre Article 7 proceedings should affect in any way obligations of other Member States to recognize judicial acts from the Member State addressed by the Commission (possibly depending on the nature of observations made by the Commission), for example by reducing the degree of probability for public policy violations that must be shown in order to benefit from this exception of recognition. Secondly, the Commission wants to enhance mobility of EU citizens, inter alia by further removing obstacles and “practical and legal difficulties” in respect to e.g. cross-border family matters Thirdly, the Commission intends to promote economic growth. Interestingly, the envisaged “structural reforms … to be pursued so as to ensure that justice systems are capable of delivering swift, reliable and trustworthy justice” appear to be understood as part of that strategy for economic growth rather than primarily as a core element of the rule of law. Most interestingly, of course, is the Commission’s vision on how to address these challenges: One core element is the “codification of existing laws” which is perceived to “facilitate the knowledge, understanding and the use of legislation, the enhancement of mutual trust as well as consistency and legal certainty while contributing to simplification and the cutting or red tape”. The Commission, having adopted since 2000 “a significant number of rules and civil and commercial matters as well as on conflict of laws”, suggests that “the EU should examine whether codifications of the existing instruments could be useful, notably in the area of conflict of laws”. It seems that the Commission proclaims the idea of codification in particular for the numerous –existing and forthcoming – instruments on the conflict of laws. From a continental perspective this would certainly be strongly welcomed because a codification would provide the chance to remove inconsistencies such as e.g. different rules on choice-of-law agreements in different instruments and would motivate for systematic thinking about complementing such a codification with rules on general issues like, for example, the handling of preliminary questions or of the characterization or the interpretation of recurrent connecting factors. It would be an interesting question whether not only the Rome instruments but also the Brussels instruments should be part of such a codification. Since the newest instruments contain both jurisdictional rules as well as choice of law-rules, a possible codification should include all European instruments on private international law. Complementing the codification of European conflict of laws rules would perfectly fit in the second tool by which the Commission envisages to address the challenges for the EU Justice Agenda which is – “complementing” existing EU law where appropriate, so far proposed by the Commission for the service of documents and the taking of evidence. Last not least, the Commission considers “facilitating citizens’ lifes” in all areas where mobile citizens still encounter problems. For example, “related to civil status records, the EU should assess the need for further action such as rules on family names to complement existing proposals to facilitate the acceptance of those public documents which are of particular practical relevance when citizens or business make use of their free movement rights”. Is the Commission thinking of codifying the recent case law of the ECJ in Garcia Avello, Grunkin Paul and the following judgments? This would again perfectly fit in the tool box for addressing the challenges for the EU Justice Agenda that consists of – codifying and complementing. Why not complementing by codifying? In that case, the question arises how rules on this area of conflict of laws in direct light of the primary rights of the mobile citizens from Articles 20 and 21 TFEU could be formulated. Methodically, the Commission holds all doors open: “Complementing” may include “mutual recognition” as well as “traditional harmonization”.

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