Preface
| Author | Charles Elsen |
| Profession | Director- General, Council of the European Union |
| Pages | 5-7 |
Page 5
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The foundations for the construction of judicial cooperation in civil matters were laid in the 1960s. Two instruments were established at that time: firstly, the 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters and, secondly, the 1980 Rome Convention on the law applicable to contractual obligations.
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Although only the Member States of the European Community could become contracting parties to those Conventions, neither instrument was based on the provisions of the EC Treaty. A European judicial area was still a long way off, although the 1970s saw the first expressions of political support for it.
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Within the framework of European political cooperation during the 1980s, the Member States concluded a further two conventions, neither of which was particularly ambitious in its scope. The first simplified procedures for the recovery of maintenance payments through the establishment of reinforced administrative cooperation in that specific area. The second abolished the legalisation of documents in the Member States. Only a few of the Member States actually ratified those instruments.
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The entry into force of the Maastricht Treaty on 1 November 1993 heralded the beginning of a new stage in the construction of judicial cooperation in civil matters, with Article K.1 including such cooperation among the objectives to be achieved within the framework of the European Union. This period was marked by a will to create new instruments in areas hitherto excluded from cooperation between Member States, such as family law, and saw the adoption of the Brussels II Convention on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of child custody, as well as the Convention on the service of judicial and extrajudicial documents in civil and commercial matters.
Page 6
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The entry into force of the Treaty of Amsterdam on 1 May 1999, as subsequently amended by the Treaty of Nice, first enabled judicial cooperation in civil matters to develop a grand design. The conclusions of the Tampere European Council on 15 and 16 October 1999 paved the way for decisive progress by the European Community towards the establishment of a genuine system of private European law between the Member States of the European Union.
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Furthermore, since this entire area had been transferred from the Treaty on European Union to the EC Treaty, judicial cooperation in civil matters began to function, generally speaking, according to rules more in tune with those which had governed the traditional fields of European construction.
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Various instruments were concluded during this period. The Council 'communitarised' the earlier Conventions on jurisdiction and the recognition and enforcement of judgments and established new instruments in this area including, most notably the Brussels I, the Brussels II and the Brussels IIa Regulations and the Regulation on insolvency proceedings.
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The Council has also adopted a number of instruments introducing provisions to improve judicial assistance between Member States. These instruments, of crucial importance to the everyday life of people seeking justice, relate to the taking of evidence abroad and the service of judicial and ex-trajudicial documents in civil or commercial matters.
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Access to justice is another important aspect of the area of justice which is being developed. The adoption of the Directive to improve access to justice has made it possible to raise the level of legal aid in cross-border disputes, and for parties to civil or commercial disputes to defend their rights in court even where their financial situation prevents them from meeting the legal costs involved.
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The Council has also created a European Judicial Network for the gradual establishment of an information system for the general public and specialists alike. The network improves, simplifies and speeds up judicial cooperation between Member States in civil and commercial matters, both in the areas already covered by instruments in force and in areas where no instrument yet applies.
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Most of the above instruments are included in this publication, which aims to further the objective set by the Tampere European Council of keeping citizens in general, and legal practitioners in particular, better informed about the instruments that exist.
Page 7
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Judicial cooperation in civil matters is still at the development stage. As far as defining rules for jurisdiction and the recognition and enforcement of judgments is concerned, its horizons should be extended to other areas of civil and commercial law, such as inheritance matters and rights in prop -erty arising out of a matrimonial relationship.
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Furthermore, the Community should step up cooperation on the free movement of judgments to the point where, for certain types of judgment, judicial control ceases to be necessary between Member States. The Regulation creating a European enforcement order for uncontested claims, which was adopted recently, is a case in point.
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The adoption of conflict-of-law rules is also an important stone in the edifice of judicial cooperation in civil matters. Reference here should be made to the Rome II draft Regulation on the law applicable to non-contractual obligations.
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As far as judicial cooperation in civil matters is concerned, the area of freedom, security and justice is thus gradually being created. I trust that all practitioners of law will find this selection of texts a useful working tool.
Directorate- General H-Justice and home affairs
Brussels, April 2004
