The EFFORTS Project in brief
Embracing a practice driven approach, a consortium of experts in international procedural law will analyse the existing legislation and case-law of the 7 targeted Member States (Belgium, Croatia, France, Germany, Italy, Lithuania, Luxembourg), promote the exchange of practices among operators (at 7 seminars) and collect good practices, with regards to the interaction of EU Regulations on circulation of judicial decisions and national legislation.
The consortium will: pursue clarity by means of 7 Practice Guides on cross-border recovery of claims in the targeted Member States – contribute to the improvement of existing EU and national legislation by drafting Policy recommendations for national and EU policymakers – setting up the EFFORTS Network and a Working Group on the digitalization of enforcement procedures.
About the Project
Final conference save-the-date
The date for the Final conference of the EFFORTS Project has been set: Friday 30 September 2022! During the Final conference, the Project Partners’ research groups will: present the outcomes of the Project; increase awareness on the EFFORTS Regulations (Brussels Ia, European Enforcement Order, European Payment Order, European Small Claims Procedure and European Account Preservation Order); evaluate and discuss the state of the art in EU and national legislation and practices relating to the implementation of the EFFORTS Regulations in the 7 targeted Member States. More details on the means of participation will follow in the next weeks.
News on international, European and comparative civil procedural law
Case-law
- EUCJ. Judgment of the Court, 7 April 2022, in Case C‑568/20, J v. H Limited. The Court rules on a request for a preliminary ruling concerning the concept of judgment under Arts. 2(a) and 39 of the Brussels Ia Regulation. The request arose in civil proceedings for the enforcement in Austria of an English judgment issued upon recognition of a non-EU judgment containing an order for payment. The request was related to the objection raised by the debtor that such English order did not fall within the scope of Art. 2(a) of the Brussels Ia Regulation, as it was merely a “double exequatur” kind of judgment. The objection has been considered, in particular, in light of the restriction on the courts of the Member State addressed to review the certificate issued in the Member State of origin. The Court finds that the concept of judgment includes the one in the case at stake (“It follows that that concept also includes an order for payment made by a court of a Member State on the basis of final judgments delivered in a third State”, §25; see also §39) and that, in any case, the issue relating to the scope of Art. 2(a) falls outside of the issues that may be raised under Art. 45 in a claim for refusal of recognition and enforcement, and should not be included in the public order clause. However, the Court states that the debtor may seek refusal demonstrating that s/he was precluded from contesting the claim and exercising her/his right to be heard before the courts that issued the judgment in the Member State of origin: “It nevertheless follows from the system established by Articles 39, 45 and 46 of Regulation No 1215/2012 that the fact that such an order is recognised as a judgment within the meaning of Article 2(a) of that regulation does not deprive the party against whom enforcement is sought of the right to oppose enforcement of that judgment by relying on one of the grounds for refusal in accordance with Article 45”, §40; see also §45. The ruling of the Court reads: “Article 2(a) and Article 39 of Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that an order for payment made by a court of a Member State on the basis of final judgments delivered in a third State constitutes a judgment and is enforceable in the other Member States if it was made at the end of adversarial proceedings in the Member State of origin and was declared to be enforceable in that Member State. The fact that it is recognised as a judgment does not, however, deprive the party against whom enforcement is sought of the right to apply, pursuant to Article 46 of that regulation, for a refusal of enforcement on one of the grounds referred to in Article 45”.
- EUCJ. Opinion of AG Pikamäe in the case LKW Walter, C-7/21. The request for a preliminary ruling originates in the proceedings on a litigation malpractice action, between a company established under Austrian law and the lawyers established in that Member State, who represented the said company in the proceedings in which it acted as a defendant. The claimed malpractice relates to a Slovenian order for payment, issued inaudita altera parte, against which the Austrian company (claimant in this proceeding), represented by its lawyers (respondent in this proceeding), lodged a belated appeal: in fact, Slovenian law prescribes that appeals must be lodged within 8 days from service of the order. In the opinion of the AG, the second point for a preliminary ruling (first in the order presented by the referring court) asks for its reformulation. Fundamentally, the referring court asks if Arts. 45(1)(b) and 46 Reg. (EU) No 1215/2012 are to be interpreted so that the court of the Member State addressed should refuse recognition and enforcement of a judicial decision issued inaudita altera parte when the appeal against such decision must be lodged within 8 days in a language different from the ones of the defendant. In the opinion, the AG underlines that the jurisprudence of the court has laid down the criteria to evaluate the violation of the right to an effective remedy and to a fair trial (Art. 47 of the Charter of Fundamental Rights of the European Union), read in conjunction with the effectiveness of the judicial system: the time limit to draft an appeal must be materially sufficient, in light of the relevance of the claims for the interests of the parties and the complexity of the proceedings. Also, there is an analogy with the case Profi Credit Polska: also in this case, the law of the Member State addressed requires that the opposing party motivates her/his appeal. Since in this case the procedural rules are similar or even more strict than in that case (two weeks for the opposition), the Slovenian rule at stake should be declared as ground for refusal of recognition and of enforcement, as it substantially limits the right to a fair trial under Art. 47 of the Charter.
- EUCJ. Opinion of AG Collins in the case Uniqa Versicherungen, C-18/21. The request for a preliminary ruling concerns the deadline to lodge a statement of opposition to a European payment order and, in particular, the national rule that interrupts procedural periods in proceedings in civil cases, thereby including proceedings relating to EPOs. With the request for a preliminary ruling, the referring (Austrian) court is seeking to ascertain whether Arts. 20 and 26 of Reg. (EC) No 1896/2006 preclude such national legislation. At the core of the matter, there is the debate undertaken by the doctrine whether the interruption of the time limit of Art. 16 EPO Reg. is regulated by Art. 20 or not, leaving it – in the latter case – to national laws (according to Art. 26). On this point, the AG concludes that the interruption falls out of the scope of Art. 20: “In my view, the general nature of Paragraph 1(1) of the national COVID-19 law brings it outside of the ambit of Article 20(1)(b) of Regulation No 1896/2006” (§40). This leaves the question open whether Arts. 20 and 26 preclude the adoption of a general measure such as the one under scrutiny. In its opinion, the AG concludes that a rule such the one on interruption of procedural periods in civil proceedings relating to the COVID-19 pandemic does not violate the scope of the EPO Reg. as it does not add another procedural step to the recognition and enforcement of a European order for payment. Furthermore, that measure also appears to have pursued a legitimate objective in the public interest and in the interest of the parties, guaranteeing an effective access to the remedy of the opposition to the payment order.
- National courts: Corte di Cassazione IT. Cass. civ., Sez. Un., 4 April 2022, no. 10860, Fallimento (omissis) v. Fida S.r.l. Following a ruling on jurisdiction by the Supreme Court, the district court before which the proceedings continue may refer a question to the EUCJ for a preliminary ruling under Article 267 TFEU if it has doubts as to the conformity of that ruling with EU law; in that case, the binding nature of the domestic ruling of the Supreme Court on jurisdiction will cease only upon the outcome of the decision of the Court of Justice showing that the ruling is in fact contrary to EU law, and to the extent of the contrary finding.
- National courts: Corte di Cassazione IT. Cass. civ., 2 February 2022, no. 3261, G.G. v. J.B.P. On the subject of the recognition of foreign judgments, under the rules introduced by Law no. 218 of 1995, Arts. 64 ff., any irregularities and the lack of reasoning of the foreign judgment do not constitute grounds for refusal of recognition, given that, when the parties have been heard and the judgment has become final, it must be considered that the obligation to state reasons for judicial decisions is not one of the fundamental principles laid down in our legal system to guarantee the right to be heard and the right of defense.
Events
In 2022, between 18-23 July, Ravenna Campus of the Department of Juridical Sciences of the University of Bologna (Italy) will host the Summer School on “Transnational litigation: between substance and procedure”. Please visit the website for more details
https://site.unibo.it/transnational-tort-litigation/en
Proposal for a Directive on strategic lawsuits against public participation (SLAPPs)
The European Commission is taking action to improve protection of journalists and human rights defenders from abusive court proceedings. Strategic lawsuits against public participation, commonly known as ‘SLAPPs’, are a particular form of harassment used primarily against journalists and human rights defenders to prevent or penalise speaking up on issues of public interest. The proposed Directive covers SLAPPs in civil matters with cross-border implications. It enables judges to swiftly dismiss manifestly unfounded lawsuits against journalists and human rights defenders. It also establishes several procedural safeguards and remedies, such as compensation for damages, and dissuasive penalties for launching abusive lawsuits. The Commission is also adopting a complementary Recommendation to encourage Member States to align their rules with the proposed EU law also for domestic cases and in all proceedings, not only civil matters. The Recommendation also calls on Member States to take a range of other measures, such as training and awareness raising, to fight against SLAPPs.
Text of the Proposal: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52022PC0177
Text of the Recommendation: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32022H0758