European Judicial Network in Civil and Commercial Matters

From Max-EuP 2012

by Matteo Fornasier

The European Judicial Network in civil and commercial matters (EJN) is a network connecting courts and other judicial authorities of the EU Member States with the exception of Denmark. It was established by the European Union with a view to enhancing cross-border judicial cooperation among Member States in civil and commercial matters.

1. Legal basis and development

In 1997, the Treaty of Amsterdam conferred upon the Union the power ‘to establish progressively an area of freedom, security and justice’ (Art 67(1) TFEU/61 EC). To this end, the Union can, in particular, adopt measures in the field of judicial cooperation in civil matters (Arts 67(4), 81(1) TFEU/61(c), 65 EC). The Vienna action plan of 1998 set the agenda for the first steps on the way towards a common European judicial area. Among other initiatives, the action plan proposed the creation of a network for civil matters following the model of the European Judicial Network in criminal matters, which had been established the previous year. In 1999, the special European Council held in Tampere recommended ‘the establishment of an easily accessible information system’ among the Member States. The Vienna and Tampere recommendations eventually led to a legislative proposal by the Commission, which was adopted by the Council in May 2001. Decision 2001/470 establishing the EJN took effect in all Member States except for Denmark on 1 January 2002. Finally, in 2009 the Union adopted a reform in order to enhance the effectiveness of the Network (Decision 568/2009).

2. Composition

The Network consists exclusively of national institutions. They can be divided into five different groups, see Art 2 Decision 2001/470. First, there are the contact points. Generally, each Member State designates one contact point. However, federal states as well as other Member States lacking a uniform legal system may establish more than one contact point. The second group of members are the central bodies and central authorities provided for in other mechanisms of judicial cooperation. Some of these institutions exist on the basis of Union instruments (see eg Art 3 Evidence Regulation (Reg 1206/2001) (evidence (international)); Art 3 Service of Documents Regulation (Reg 1393/2007) (service of documents); Art 53 Brussels IIbis Regulation (Reg 2201/2003); Art 49 Maintenance Regulation (Reg 4/2009) (European family law)), while others are provided for in international conventions to which Member States are parties (see eg Arts 2, 18 of the Hague Convention of 1965 on the Service of Documents; Arts 2, 24 of the Hague Convention of 1970 on Evidence; Art 2 of the European Convention of 1980 on Child Custody; Art 6 of the Hague Convention of 1980 on Child Abduction; Art 6 of the Hague Convention of 1993 on Adoption; and Art 29 of the Hague Convention of 1996 on Child Protection; family law (international); child law (international); child protection). The third group of EJN members are the liaison magistrates as defined by Joint Action 96/277/JAI who have responsibilities in civil and commercial matters. These are judicial officials sent by their home state to work in a different Member State in the context of a particular cooperation agreement. Fourthly, the Member States may open up the EJN to other appropriate judicial or administrative authorities whose membership in the Network they consider to be useful. Lastly, the 2009 reform added a fifth group of members to the EJN. In the future, professional associations representing lawyers, notaries, bailiffs and other legal practitioners dealing with judicial cooperation in civil and commercial matters will also participate in the EJN. Among the five groups of members, the contact points play a predominant role. They coordinate the activities of the network and serve as the channels through which information is passed and disseminated among the Member States (see Arts 5, 9, 10 Decision 2001/470).

3. Tasks and activities

Article 3(1) Decision 2001/470 contains a general description of the activities of the Network. Essentially, the EJN has two distinct tasks. First, it is meant to improve cross-border judicial cooperation among courts and other judicial authorities of the Member States. To this end, the EJN serves as an ‘inter-court’ information system. Secondly, it aims at setting up an external information system accessible to the public at large. In addition to these two chief activities, the Network is also charged with a number of more specific tasks in the context of special Union instruments regarding civil litigation (European civil procedure) and conflict of laws (private international law (PIL)), see eg Art 54 Brussels IIbis Regulation (Reg 2201/2003), Art 29 Enforcement Order Regulation (Reg 805/2004), Art 28 Payment Procedure Regulation (Reg 1896/2006), Art 23 Service of Documents Regulation (Reg 1393/ 2007), Art 18 Legal Aid Directive (Dir 8/2003) and Arts 50, 71 Maintenance Regulation (Reg 4/ 2009), Art 17(2) Divorce Regulation (Reg 1259/ 2010).

a) ‘Inter-court’ information system

The exchange of information among courts is intended to facilitate the resolution of cross-border disputes. In this respect, the EJN performs a similar role as other mechanisms of judicial cooperation that exist under Union law or under international law in general. The Network, however, is not intended to replace those other instruments (see recital No 11 Decision 2001/470). This is particularly important with regard to the above-mentioned ‘central bodies’ and ‘central authorities’ provided for in other cooperation mechanisms. Their powers are not prejudiced by the EJN. Thus, the role of the Network can be said to be a ‘supplemental’ or an ‘auxiliary’ one: it provides a tool of judicial cooperation in those circumstances where other mechanisms are either unavailable or inefficient (see also Art 3(2)(a) Decision 2001/470). Where this is the case, the court seeking judicial cooperation directs its request to the contact points, which in turn establish a direct contact with the foreign court (Art 5(2)(b) Decision 2001/470).

In particular, the Network may prove to be a useful resource where courts have to apply the laws of another Member State (foreign law (application); (foreign law (ascertainment)). In fact, assisting the courts in the application of foreign law is now viewed to be one of the main activities of the EJN. The 2009 reform reflects this fact. The new added Art 3(2)(b) expressly states that courts as well as other authorities may apply to the Network for information on the content of the applicable law of another Member State. The provision is to be seen in the context of the recent EU legislation in the area of private international law, which is one of the major contributions to the ‘area of justice’ under Art 67(1) TFEU/61 EC. Thus, the reform of the EJN can be said to tackle the practical side of the conflict-of-laws instruments: it seeks to overcome the difficulties courts may be faced with where conflict rules point to the substantive law of another Member State. In such circumstances, the use of the EJN may indeed be an attractive option for courts. The advantage the EJN offers over other instruments (eg the European Convention of 1968 on Information on Foreign Law) is its flexibility. Essentially, courts can transmit requests to foreign courts without being subject to strict procedural requirements. This is beneficial to the parties to the extent it speeds up judicial proceedings in cross-border litigation cases. However, the drawback of the ‘informal’ approach is that it may pose a threat to the right to a fair trial. In particular, the parties’ right to be heard may be jeopardized. Thus, as a minimum requirement for safeguarding the parties’ procedural rights, a duty should be imposed on the courts to inform the parties if they consult with foreign judges. Also, they must disclose to the parties the main information obtained from the foreign institution.

The Network does not confine itself to assisting courts in pending cases. Rather, it is meant to be a general information resource available to courts. Thus, the EJN seeks to keep judges updated on legal and practical issues relating to EU legislation and international conventions. To this end, it organizes regular meetings for the exchange of experience and publishes newsletters covering new developments. The goal of these activities is to ensure ‘the effective and practical application’ of Union instruments and international treaties (see Art 3(2)(b) Decision 2001/470).

b) Information system for the public

The second chief activity of the Network, the implementation of an information system for the public, aims at facilitating access to justice in cross-border litigation. For parties involved in such lawsuits, it is often very difficult to determine the procedural and substantive rules pertinent to their case. The Network has the task of overcoming those difficulties and contributing to more transparency. The goal is to gradually set up an easily accessible information resource which will eventually comprise the following legal instruments (Art 3(2)(c), Arts 14, 15 Decision 2001/470): (i) Union instruments based on Art 81 TFEU/61(c), 65 EC dealing with judicial cooperation in civil and commercial matters (European civil procedure; private international law) including the relevant case law as well as national implementation measures; (ii) international conventions relating to judicial cooperation in cross-border litigation to which the Member States are parties; (iii) national rules of the Member States dealing with access to justice, civil judicial proceedings and alternative dispute-resolution.

c) Operating methods

The EJN is intended to be a flexible and pragmatic mechanism of judicial cooperation. To ensure that the Network operates quickly and efficiently, it is subject to two specific requirements. First, in order to overcome language barriers, the contact points are expected to speak an official EU language other than their own (Art 7 Decision 2001/470). Secondly, when providing information to courts or to the public, the Network has to make use of modern communication and information technologies whenever appropriate (Arts 8, 14(1) Decision 2001/470). In this regard, the Network serves as a model for the plan of the Union to encourage the expanded use of modern communication facilities in the field of justice (see eg the multi-annual European e-Justice action plan 2009–2013 [2009] OJ C 75/01).

4. The EJN in the context of European judicial integration

The cooperation between courts of different states within the EJN framework reflects a general trend in international relations. In addition to the economic and the political globalization, one can also discern a ‘judicial globalization’ (Anne-Marie Slaughter). The various national judiciaries are no longer closed systems, each one isolated from the other and only concerned with the application of its own laws. Rather, when adjudicating cases, courts are more and more frequently confronted with foreign, international and supra-national law.

The trend is particularly strong in the Member States of the EU. As a consequence of the integration process, the national legal systems have increasingly come under the influence of external legal sources. There are essentially two causes for this development. The first relates to the fact that the powers of the Union have been extended continuously since its foundation. The result is a growing quantity of legislation at the Union level. This has a direct impact on the judicial systems at the Member State level since, for the most part, it is the national courts that enforce Union law. Secondly, foreign law has come to play a significant role in civil litigation. Due to the free movement of goods, persons, capital and services in the internal market, it is quite likely that cases brought before courts today have a cross-border impact. Depending on the relevant conflict rules, these cases may be subject to the substantive law of a foreign state.

The spill-over of supra-national and foreign law into the domestic legal systems affects the relationship between the national judiciaries of the Member States. In fact, just as there is a political and an economic integration process, there is also a judicial integration process within the EU. The process moves along two axes. The vertical judicial integration is well advanced. It relates to the cooperation between the national courts and the Court of Justice of the European Union (European Court of Justice; General Court of the European Union). In the absence of a general ‘Union judicial jurisdiction’ (similar, eg, to the federal court system in the United States), the responsibility for the enforcement of EU legislation lies mainly with the national courts. The task of the Union courts, on the other hand, is confined to ensuring the effective and uniform interpretation and application of Union law (see Art 19 EU/220 EC; interpretation of EU law). The reference for a preliminary ruling according to the former Art 68 EC (now abolished) and Art 267 TFEU/234 EC is the ‘procedural link’ by which proceedings started before national courts can be brought before the European Court of Justice.

Unlike the vertical integration, the horizontal judicial integration is still in an early stage. Cross-border cooperation between the courts of the Member States is rare. Only seldom does it occur that judges from different states exchange experience and information with each other. Likewise, only a very small minority of courts refer to the national case law of another Member State in their opinions. This is even true where the case at issue is governed by Union law and, thus, foreign courts apply the same rules. The reasons for the lack of mutual interest may be language barriers, national idiosyncrasies in the legal orders and traditions (eg common law versus civil law), and, more generally, differences in the way of legal reasoning and writing. However, for the purpose of the ‘area of justice’ as envisaged by Art 67 TFEU/61 EC, a close horizontal cooperation among the national judicial systems appears indispensable. First, horizontal integration would lead almost certainly to a higher degree of consistency in the interpretation and application of Union acts within the EU. Ultimately, this could provide considerable relief to the Court of Justice, which is struggling against an increasing number of cases on its docket. Moreover, cross-border judicial cooperation would also have a positive impact on the application of the law of other Member States. This is because it would become much easier for the courts to determine the content of foreign rules and to apply them the way they are applied in the relevant foreign state.

Against the background of the judicial integration process within the EU, the purpose of the EJN becomes clearer. Its goal is to promote judicial integration on the horizontal axis and to improve the cooperation between national courts in civil and commercial matters. In other legal fields similar initiatives exist. For criminal matters, for instance, the EU established the European Judicial Network (see Council Decision 2008/976/ JHA, formerly Joint Action 98/428/JHA), which served as a model for the creation of the EJN in civil and commercial matters. Other bodies and mechanisms designed to enhance judicial cooperation among the Member States in the field of criminal law comprise, eg, Eurojust (Art 85(1) TFEU/31(2) EU) as well as the exchange of liaison magistrates on the basis of Joint Action 96/277/JAI. For the effective enforcement of competition law, Regulation 1/2003 provides for a network connecting the European Commission and national competition authorities. The aim of the network is to share data and information relevant for proceedings under Arts 101, 102 TFEU/81, 82 EC. Furthermore, the Union has established a number of cross-border networks specializing in alternative-dispute settlement, such as the European Consumer Centres Network (ECC-Net), SOLVIT and FIN-NET. Finally, in addition to the mechanisms of judicial cooperation based on Union instruments, there are several networks and associations founded by the national judiciaries outside the EU framework. Again, the goal of these organizations is to improve horizontal judicial integration in Europe. They comprise, to name but a few, the European Judicial Training Networks (EJTN), the Association of Councils of State and Supreme Administrative Jurisdictions of the European Union (ACS), the Conference of European Constitutional Courts and the Network of the Presidents of the Supreme Judicial Courts of the European Union.

5. The EJN as an instrument of ‘transnational’ or ‘transgovernmental’ international cooperation

From the perspective of international relations theory, the EJN provides an example of ‘transnational’ interaction. More specifically, the Network can be described as a ‘transgovernmental’ cooperation mechanism as its members are public bodies. ‘Transgovernmentalism’ is generally defined as cross-border contacts and interactions between public institutions without the control of the government organs that are primarily responsible for foreign relations. Not only in the judicial branch, it is also in the area of public administration that ‘transgovernmental’ cooperation is becoming more common. This marks a significant shift in international relations.

To see the change, one has to recall the ‘traditional’ model of international relations. Under this model, the state is perceived as a ‘monolithic’ entity, ie as one actor. The internal structure of the state, ie the division of power among different institutions, government branches, etc, is totally disregarded. Thus, the traditional model makes a clear distinction between the realm of domestic and foreign affairs. The internal organization of most states mirrors this distinction: the responsibility for domestic and foreign affairs usually lies with separate authorities. The transgovernmental approach, on the other hand, cuts across the traditional model. The state is now perceived to be an entity composed of multiple independent institutional actors, each of which can interact directly with its relative foreign counterparts. Thus, the line of distinction between domestic and foreign affairs blurs. Moreover, as the various authorities and state agencies interact with each other directly and independently, there is no longer a central body representing the collective state interests vis-à-vis foreign states. Being fragmented into multiple independent actors, the influence of the state as a whole diminishes on the international plane.

Upon closer scrutiny, the EJN reveals elements of both the ‘transgovernmental’ and the ‘traditional’ models. On the one hand, it gives courts and other judicial authorities the power to engage in international contacts and relations. This is an innovative feature given that, traditionally, the judiciary only operates in the domestic realm. Yet, on the other hand, the cross-border cooperation occurs through the contact points. According to Art 2(1)(a) Decision 2001/ 470, the contact points are ‘designated by the Member States’. This aspect is in line with the ‘traditional’ model of international relations. By designating the contact points, the ‘Member States’, and thus also the bodies primarily responsible for foreign relations, retain some sort of control over the international dealings of the judiciary. In contrast, it is noteworthy that a few mechanisms of judicial cooperation provide for direct communication among judicial authorities without the control of a contact point (though only in exceptional cases), see eg Arts 8(3), 9(2) of the Hague Convention of 1996 on Child Protection and Art 15(6) Brussels IIbis Regulation (Reg 2201/2003).

6. Development tendencies

Since the establishment of the Network in 2001, the Union has been very active in implementing the ‘area of justice’ envisaged by Art 67(1) TFEU/ 61 EC. For the reasons outlined above, the on-going integration process calls for stronger cooperation between the judiciaries of the Member States. The EJN could serve as the nucleus for judicial integration in the field of civil and commercial matters. However, in 2006 a survey conducted by the Commission found that the Network was still far from having developed its full potential. In order to enhance the use of the Network, the Union eventually reformed the EJN in 2009. As already mentioned, the reform placed a stronger emphasis on the EJN’s role as a resource for determining the content of foreign law. The second major goal of the reform was to improve the synergies between the EJN and other existing European networks. To this end, the newly added Art 12a Decision 2001/470 requires the EJN to cooperate with other mechanisms such as, for example, the ECC-Net, EJTN and the European Judicial Network in criminal matters.

Literature

Anne-Marie Slaughter, ‘Judicial Globalization’ (2000) 40 Virginia Journal of International Law 1103; Jürgen Basedow, Nationale Justiz und Europäisches Privatrecht—Eine Vernetzungsaufgabe (2003); Gebhard M Rehm, ‘Auf dem Weg zu einer Europäischen Zivilprozessordnung und Instanzgerichtsbarkeit?’ in Festschrift Andreas Heldrich (2005) 955; Peter Schlosser, ‘Direct Interaction of Courts of Different Nations’ in Studi di diritto processuale civile in onore di Giuseppe Tarzia, vol 1 (2005) 589; Carol Harlow and Richard Rawlings, ‘Promoting Accountability in Multilevel Governance: A Network Approach’ (2007) 13 ELJ 542; Eva Storskrubb, Civil Procedure and EU Law (2008); Günter Hirsch, ‘Das Netzwerk der Präsidenten der obersten Gerichte der Europäischen Union’ (2009) 17 ZEuP 1; Fernando Paulino Pereira, ‘La coopération judiciaire en matière civile dans l’Union européenne: bilan et perspectives’ (2010) 99 Rev crit dr int priv 1; Ingolf Pernice, ‘La Rete Europea di Costituzionalità—Der Europäische Verfassungsverbund und die Netzwerktheorie‘ (2010) 70 Heidelberg Journal of International Law 51; Matteo Fornasier, ‘Auf dem Weg zu einem europäischen Justizraum—Der Beitrag des Europäischen Justiziellen Netzes für Zivil- und Handelssachen‘ (2010) 18 ZEuP 477. See also the website of the EJN: <http://ec.europa.eu/civiljustice/index_en.htm>

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Retrieved from European Judicial Network in Civil and Commercial Matters – Max-EuP 2012 on 29 June 2022.

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