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Putting Union Citizenshipinto practice:

CIVIL LAW COOPERATION

UNION CITIZENSHIP IN PRACTICE: OUR COMMON VALUES, RIGHTS AND DEMOCRATIC PARTICIPATION

European Parliament Hearing15 March 2016

©Aude FioriniDundee Law School

a.r.fiorini@dundee.ac.uk

Legal Context

Union citizenship and civil law cooperation› At first sight the link is elusive:

– Civil law cooperation predates the formal introduction of Citizenship in theEC Treaty;

– ‘Cornerstone of judicial cooperation in civil matters’, was first created onthe basis of Art 220 EEC which was meant to benefit of ‘Member Statenationals’;

– Later developments in civil justice cooperation - though presented as aCommunity policy related to the free movement of persons - were justifiedby the needs of internal market and thus could be viewed as potentiallylimited to economically active EU citizens.

Union citizenship and civil law cooperationNow unquestionably linked:

› Civil law cooperation is a core element of the AFSJ, which is forthe benefit of Union citizens exercising their right to freemovement.

– Clarity: Current Treaties expressly state that the EU has a (shared)competence in civil law cooperation for the benefit of Union citizens.

– Consistency: Policy programmes show that measures have been developedin this area effectively to put citizenship into practice.

CIVIL JUSTICE AND CITIZENSHIP in the TREATIESAFSJ benefits Union citizens exercising their right to free movement.

› Art 3(2) TEU: the Union offers its citizens an Area of (Freedom, Security and) Justice in which the free movement of persons is ensured:

– Art 67(4) TFEU: the AFSJ is an area in which access to justice is facilitated;

– Art 81 TFEU: the Union develops judicial cooperation in civil matters havingcross-border implications;

› Arts 20(2)-21(1) TFEU: Every citizen of the Union has the right to move and reside freely within the territory of the Member States.

CIVIL JUSTICE AND CITIZENSHIP - in the PROGRAMMES

› 1999 Tampere conclusions: a shared area for the citizens where freedomis accompanied by justice

› 2004 Hague programme: responding to the ‘expectations of our citizens’.

› 2009 Stockholm programme: focusing on the ‘interests and needs of citizens’

› 2014 Strategic Guidelines: AFSJ is an interlinked area without frontiers in a Union which ‘empowers and protect its citizens’.

Practice

Civil Justice and the EU: Conundrum

Jutice is expected to be› accessible to all› smooth and fair to all

EU Context: the Area of F, S & Justice› Mobility of EU Citizens› Variety of legal and judicial systems in the EU

Combining the variety of legal systems & mobility

› Challenge 1: Accessibility of Justice?– Uncertainty (jurisdiction/applicable law/effects of foreign judgments);– Complexity/costs;

› Challenge 2: Fairness?– Limping situations– Forum and system shopping

ØRisks if no action:ØUnion citizens availing of their right to free movement will not get the

justice they deserve orØUnion citizens will be discouraged from taking advantage of their right to

free movement

Judicial Cooperation in civil matters: today

› The last 17 years have seen the adoption of many common rules in- in civil and commercial matters, - divorce,- parental responsibility, - maintenance and - succession cases

– Work in on-going on further areas

› This has benefited EU citizens in three practical respects.

1. General benefits of EU Harmonisation of civil justice

- Increased legal certainty/predictability for EU Citizens- Cross-border families now have much clearer, accessible, answers regarding

the legal aspects of their separation, child custody and child support or in case of a death› which EU MS court has jurisdiction to deal their situation with contact with more than

one EU MS› what law that court will apply and› the extent to which the resulting judgement is going to be given effect in other EU MS

- Decrease in forum shopping in those areas- Eg: Mr Massa has lived in 2 EU MS and has assets in 3 MS. If Mr Massa

dies, his heirs will know that a the court of the country in which Mr Massa was habitually residing when he died has jurisdiction to deal, under its ownlaw, with the succession as a whole.

2. Limping situations

EU Regulations guarantee that Union citizens involved in cross-border situations have much greater protection against ‘limpingsituations’ (i.e. where their rights / status is recognised in all MS,uniformly); eg:

– A divorce granted in one MS is recognised in other EU MS (even if theywould not have allowed it on the same facts).

– Access orders granted in one MS are automatically recognised andenforceable in other EU MS

– Maintenance orders made in one EU MS are recognised in other EUMS without any special procedure

– Heirs or legatees are able to demonstrate their status or exercise theirrights in EU MS without any special procedure

3. Complexity/Costs

- The EU has created (optional) European simplified and acceleratedprocedures (EPOP, ESCP) to improve access to justice

- Exequatur (intermediate proceedings) have been abolished in disputes incivil and commercial matters and some disputes in family matters

- The establishment of Central Authorities facilitates the smooth resolutionof difficulties (eg: maintenance, parental responsibility)

Outlook

› Much has been achieved

› Much remains to be done

Doing more: patching the mosaic effect

Judicial cooperation in civil matters has led to a large mosaic ofsectoral instruments with varying degree of specialisation.

› Covering more ground = filling gaps:E.g.:

– No common rules regarding existence, validity, recognition ofmarriages

› Facilitating comprehensibility = improving consistency ofsectoral approaches:

E.g.:

– treatment of multiple nationalities

Doing more: improving implementationEnsuring smooth practical operation of rules

› Reinforcing existing platforms– E-justice portal, European Judicial Network, European Judicial Atlas

› Raising awareness– Information of citizens, training of legal professionals & service providers

› Engaging with the EU/domestic law interface– Better articulation

Doing better?

› Substance– Periodical reviews

› Variable & flexible geometry

arfiorini@dundee.ac.uk