Article 47 of the EU Charter of Fundamental Rights and Its Impact on Judicial Cooperation in Civil and Commercial Matters
Effective Access to Justice and Judicial Cooperation in Civil and Commercial Matters
The fundamental rights enshrined in Art. 47 CFR will play a significant role in the context of the judicial cooperation in civil matters and, ultimately, in the developing of an Area of Freedom, Security, and Justice.
In this regard it should be noted that the intention to create such an area led the Member States to grant more competences to the Community, including, in particular, the power to pass legislation with a view to promote the compatibility of the rules concerning conflict of laws and jurisdiction, traditionally left to the national parliaments.29 Accordingly, the Community has adopted several measures with a cross-border impact to the extent necessary for the proper functioning of the internal market (as, for instance, the well known Brussels Regulation), with an extraordinary and unique legislative activism30 characterized in the first period by a lack of organicity and coordination. On its part the ECJ recently delivered an Opinion31 emphatically praising Regulation No 44/2001 in as much as it institutes a unified and coherent system of rules on jurisdiction and enforcement of judgements.
The Lisbon-Reform Treaty strengthens the role of the Community legal order in the field of conflict of laws and jurisdiction. Among the several law changes introduced by Art. 81 TFEU, which it would be inappropriate to examine in this paper, it must be stressed that such cooperation may now include the adoption of measures for the approximation of the laws and regulations of the Member States aimed at ensuring an effective access to justice.32 This indirect reference to Art. 47 CFR should not be underestimated. Of course, being part of the wider category of fundamental rights, the protection was already granted in the EU civil judicial cooperation domain, even before the comunitarization brought about by the Amsterdam Treaty.
For the purposes of the present analysis, it is sufficient to recall that under Regulation Brussels I – which, based on the principle of mutual trust in the administration of Justice within the Community, allows for judgments rendered in a member State to be automatically recognized in other Member States33 – the unsuccessful party will be able to contest, in an adversarial procedure, the declaration of enforceability issued by a national court on the grounds that his/her rights of defence were violated.34
At the same time, given the formal abolishment of the three pillar structure, 35 it seems fair to state that with the entry into force of the Lisbon Treaty the scope of the principle of effective access to justice in the AFSJ will be further clarified, fully benefiting from the preliminary reference mechanism laid down in Art. 267 TFEU.36
From a general standpoint, it should be underlined that effective access to justice, together with the mutual recognition and trust principles, legal certainty and the autonomy of the parties, provides a posteriori evidence of the actual existence of a system which the Court (correctly) considers to be coherent.
Particular attention should be paid to the circumstance that the effective access to justice is capable of significantly affecting EU cross-border litigation, both in a positive and negative way. On the one hand, in fact, the need to ensure access to justice will have repercussions on the EU legislativepolicy in this field. More precisely, it is suggested that regulations will be adopted to reduce the many obstacles private parties still face in exercising this fundamental right. In this regard, suffice it to recall the problems posed by the different legal aid regimes applicable in the Member States.37
In addition, it should not be forgotten that individuals involved in litigation in a foreign Member State (i.e. an EU country of which they are not citizens) often have to meet nationality or residence requirements and incur in extra costs which ultimately may limit access to justice. The quality and economic accessibility (perhaps through public funding) of legal services are essential conditions to guarantee observance of the ‘constitutional’ standard of protection affirmed by Art. 47 CFR.38 Indeed, the will to promote a legislation capable of ensuring effective access to justice can already be appreciated taking into account the latest regulations on the Small Claims procedure and the EU Order for Payment Procedure,39 both aimed at ensuring (effective and efficient) access to justice by creditors.40 As far as the former act is concerned, it is interesting to observe that the Recital No 9 makes reference to the fundamental rights and principles enshrined in the Charter. Pursuant to the EU Small Claims Procedure, the court or tribunal must respect the right to a fair trial and to an adversarial trial, in particular when deciding on the need for an oral hearing.
On the other hand, effective access to justice represents a limit vis-àvis the principle of mutual recognition of judgments and other decisions, recognised as being a cornerstone of judicial cooperation in civil matters at the October 1999 European Council meeting in Tampere. According to this principle, originally developed in the Common Market, a judgement should have the same authority and effectiveness in the country where enforcement is sought and in the country where it was adopted. The ultimate goal is the automatic recognition and execution of judicial decisions among the Member States of the European Union.41
The binding nature of the Charter appears capable of jeopardising the attainment of this objective. Art. 47 CFR and the described mutual recognition principle are difficult to combine although the former should prevail over the latter. As recognized by the ECJ in Krombach,42 the protection of effective access to justice may in some (exceptional) cases require the refusal to enforce a judgement by a court in another Member State.
Pursuant to the classic definition of ordre public international in international private and procedural law, this can be justified on grounds of public policy since national and community judges must abide by the fundamental values protected under EU Law.43 Of course, the legal force attributed to the Charter by the Lisbon Treaty can only strengthen the need to ensure the full effectiveness of its provisions.
Ultimately, it is up to the ECJ to define the contours of the notion of “European public order”.44 It is not difficult to predict that under the new treaties it will carry out this pivotal function by making extensive use of the Charter. In this sense, the effective access to justice affirmed in Art. 47 CFR is likely to become the main benchmark for assessing compliance with fundamental rights in the field of judicial cooperation.
Last but not least it is important to stress the impact of such a strengthened principle of effective access to justice on the national jurisdictions of EU Member States, in particular on their procedural rules. As already indicated, the latter are bound to respect the principles of equivalence and effectiveness so that national laws may not discriminate according to whether the claim is based on domestic or EU law and must guarantee effective and adequate redress for violations of Community law. In this respect, the approach taken by the ECJ in Leffler is rather indicative of the far reaching effects of these principles in the field of judicial cooperation,45
But with Art. 47 CFR acquiring supremacy and direct effect, it is suggested that all the mechanisms envisaged by the numerous acts passed in civil judicial cooperation matters – which are capable of deeply affecting the Member States’ normative systems 46 – will enhance their effectiveness by virtue of the functional integration of national rules into the Area of Freedom, Security and Justice. The latter shall in fact be interpreted in light of the result pursued by the single Regulation under consideration (effet utile doctrine), of the objectives of the judicial cooperation in civil and commercial matters and with a view to ensure effective access to justice; when choosing the national adversarial procedure for the exequatur of a foreign decision (Arts. 43, 45 of Brussels I Regulation and Art. 31 of Brussels IIbis Regulation) Art. 47 will become a strong interpretative instrument to say the least. This should also be true for the conflict of laws rules as established by the Rome regulations.
In other words, the circumstance that Art. 81 TFEU refers to effective judicial protection (and should thus, it is submitted, be read jointly with Art. 47 CFR), might lead the European and domestic courts to adjust their interpretative stance when dealing with EU legislation in the field of civil and commercial judicial cooperation and national procedural norms. The potential spill-over effect is notable as a multitude of supranational and, consequently, domestic provisions (broadly) falling within the scope of application of Art. 81 TFEU will be subject to this higher hermeneutical standard.47
In any event, it remains to the EUCJ to establish a clear hierarchy or a scale of values to be observed when dealing with judicial cooperation incivil matters, most notably between those enshrined in Art. 6 ECHR and those contained in Art. 47 CFR supported, of course, by the cornerstone principles of mutual recognition and trust between the Member States.
29. Reference is made to the amendments introduced by the Amsterdam Treaty. Cf., in particular, Arts. 61, 65 TEC.
30. Amongst the many acts adopted in this field, cf. EC Regulation 1346/2000,  OJ L 160/1; EC Regulation 1348/2000,  OJ L 160/37; EC Regulation 44/2001,  OJ L 12/1 (Brussels I, on jurisdiction, recognition and enforcement of judgments in civil and commercial matters), and EC Regulation 2201/2003 (Brussels II bis, on matrimonial matters),  OJ L 338/1. In the field of conflict of laws, cf. EC Regulation 864/2007 (Rome II, on the extra-contractual obligations),  OJ L 199/40 and Regulation 593/2008 (Rome I, on contractual obligations, amending the 1980 Rome Convention),  OJ L 177/6, see also:
31. Opinion 1/03 2006 ECR 1145 according to which the conclusion of the new Lugano convention falls entirely within the sphere of exclusive competence of the European Community.
32. Art. 81, lett. e TFUE.
33. See Chapter III of Regulation 44/2001, n. 30 above, dealing with recognition and enforcement.
34. Cf. Arts. 33 and 36 of Regulation 44/2001, n. 30 above, respectively.
35. It is nonetheless true that the common foreign and security policy will maintain its specificity.
36. In addition, it should be recalled that the Protocol on the Statute of the ECJ has been amended by Council Decision 2008/79/EC/EURATOM,  OJ L 24/42, which allows for a fast-track procedure. The Rules of Procedure of the Court of Justice have been amended accordingly ( OJ L 24/39) by inserting a new Art. 104 b that sets out the new procedure. The referring national court may request that the speedy procedure be applied or the ECJ may decide to apply it ex officio in exceptional cases. The parties to the national proceedings, the member State of the referring court (but not all member States) and the EU institutions may submit written observations within a short deadline set by the Court.
37. For further details, see Commission Green Paper of 9 February 2000: Legal aid in civil matters: The problems confronting the cross-border litigant (COM (2000) 51 final).
38. In that respect it can be useful to draw a parallelism between the concept of “access to justice” and the (far-reaching) notion of “access to market” elaborated by ECJ in the most recent case law on the freedom of establishment (Case C-442/02 Caixa-Bank France  ECR I-8961, para 12). On the free movement of capital, see, in particular, the golden-share saga, considered an obstacles to access (even if only potential) to the financial market of another member State, cf. Case C-367/98 Commission v Portugal  ECR I-4731; case C-483/99 Commission v France  ECR I-4781; Case C-503/99 Commission v Belgium  ECR I-4809; Case C-463/00 Commission v Spain  ECR I-4581 and Case C-98/01, Commission v United Kingdom  ECR I-4641.
39. Respectively, EC Regulation 861/2007,  OJ L 199/1 and EC Regulation 1896/2006,  OJ L 399/1.
40. See Recital No 7 of EC Regulation 861/2007 (n. 39 above) and Recital No. 8 of EC Regulation 1896/2006.
41. In practice, this is done by abolishing all formalities required in the national legal systems in order to enforce the judgments rendered in other Member States and by prohibiting any substantive review of the latter, without any ordre public clause. Cf. Regulation 805/2004,  OJ L 143/15. See N. Boschiero, ‘The forthcoming European enforcement order. Towards an European law-enforcement area’, (2003) 86 Rivista di Diritto Internazionale 688.
42. Case C-7/98 Krombach  ECR I-1935, para 37. See also H. Muir Watt, ‘Evidence of an emergent European legal culture: Public policy requirements of procedural fairness under the Brussels and Lugano Conventions’, (2001) 36 Texas International Law Journal 539. In this regard, cf. Cour de Cassation, Judgment 16 March 1999, no. 17598 (for a comment see. G.A.L. Droz, ‘Variations Pordea (à propos de l’arrêt de la Cour de Cassation; 1er Chambre civile du 16 mars 1999)’, (2000) 89 Revue Critique du Droit International Privé 181 ff.). Nevertheless, even before the Krombach judgment, some Authors pointed out the link between the notion of ordre public and the protection of fundamental rights, cf. T. Ballarino, Costituzione e diritto internazionale private (CEDAM, 1974); G. Beitzke, Grundgesetz und international privatrecht (Berlin, 1961); P. Hammje, ‘Droits fondamentaux et ordre public’, (1997) 86 Revue Critique du Droit International Privé 1.
43. Case C-126/97 Eco Swiss China  ECR I-3092. The case acknowledged the existence of an ordre public international of European source. See S. Poillot Peruzzetto, ‘L’ordre public international en droit communautaire. A propos de l’arrêt de la Cour de Justice des Communautés du 1er juin 1999 (affaire Eco Swiss China Tima Ltd)’, (2000) 2 Journal de Droit International 299. For a different view, cf. M.R. Moura Ramos, ‘Public policy in the framework of the Brussels Convention. Remarks on two recent decisions by the European Court of Justice’, in M.R. Moura Ramos (ed.), Estudios de derecho international privado e de derecho processual civil internacional (Coimbra, 2002) 283.
44. The elaboration of the notion of ordre public cannot be left to the national judicial authorities without hindering the uniform application of EC law (cf. Case C-7/98, Krombach, n. 42 above).
45. Case C-443/03 Leffler  ECR I-961. It is well known that in this instance, the ECJ (following AG Stix-Hackl’s opinion) considered inter alia that “the principle of effectiveness must lead the national court to apply the detailed procedural rules laid down by domestic law only in so far as they do not compromise the raison d’être and objective of the Regulation”.
46. Suffice it here to recall the domicile determination or the registered office of a company (Arts. 59 and 22, No. of EC Regulation 44/2001), the grant of precautionary measures (Art. 31 of EC Regulation 44/2001) or the determination of the certain date of the beginning of a legal proceeding (Art. 9 (2) of EC Regulation 1348/2000 or Art. 30 of the Brussels I Regulation).
47. For an example of the possible impact of EU principles on the Italian domestic rules of civil procedure concerning the quaestio iurisdictionis, see P. Franzina, ‘Il coordinamento fra lex fori e norme uniformi nell’accertamento del titolo di giurisdizione secondo il regolamento (CE) n. 44/2001’, (2004) 2 Rivista di diritto internazionale 384.