European Judicial Area Research Articles

Relazioni affettive e frontiere giuridiche. Famiglia e famiglie nello spazio europeo tra fattore religioso, diritti nazionali e strategie di convergenza

Emotional relationships and legal border. Family and families in the European area from religious factors and national law to agreement strategies
 ABSTRACT: The family is subject to socio-cultural changes and it is regulated differently from European legal systems. In addition, in Europe, by fall of geographical barriers and the increase of migration, there has been the spread of family models not compatible with the principles and values of the host countries resulting in legal, cultural and religious conflicts. The movement of people within the European area call for coordinated actions and/or the adoption of adaptation techniques processes to the recognition of family status and related rights. This process aims to avoid that one legal relations with internationality may undergone different and heterogeneous regulatory disciplines with implications on the effective enjoyment of fundamental rights and religious ones. This work analyzes the regulation of family law in the European judicial area to understand which path to follow in preventing that the movement of people may be hampered by the heterogeneous of national laws and the relevance of the religious factor in this context.
 SOMMARIO: - 1. Brevi considerazioni introduttive - 2. La disciplina sostanziale del diritto di famiglia in Europa: la competenza degli ordinamenti nazionali. - 3. Famiglia e diritti nel sistema europeo - 4. Concetto di famiglia e diritto alla vita familiare - 5. Il diritto di famiglia e l’azione dell’Unione europea nello spazio di libertà, sicurezza e giustizia - 6. Sharīʿah, famiglia e diritto europeo: un rapporto difficile e controverso - 7. I Principles of European Family Law - 8. La famiglia tra diritto comune e politiche di armonizzazione - 9. In somma.

The interplay of EU Regulation 2019/1111 with the 1980 Hague Convention in matters of child abduction

Even if Regulation 2019/1111 have a quite limited impact on the EU system of jurisdictional competence and of recognition and enforcement of judgments in matters of parental responsibility, it introduced several novelties with regard to the section devoted to child abduction matters. The adoption of those new provisions suggests to investigate whether this also led to a change in the approach of the Regulation as towards the 1980 Hague Convention. The paper attempts to make it clear that the reference to complementarity can better explain the interplay between the two instruments and that, even more than in the past, the Regulation is not aimed at setting aside the operation of the Convention, but rather at providing special rules for its implementation within the European judicial area.

La Función Preventiva del Sistema Financiero en el Espacio Judicial Europeo: ¿Medidas (Penales) de Prima Ratio?

La salvaguarda del sistema financiero UE frente a la delincuencia organizada ha llevado al legislador a crear un cuerpo normativo que aboga por la prevención a través de un conjunto de medidas que deben aplicar las entidades financieras y los profesionales vinculados con este sector para evitar el uso ilícito de las vías financieras. La frontera entre la finalidad preventiva de estas medidas de control y las consecuencias penales que se derivan de la efectiva comisión del delito resulta, en ocasiones, extraordinariamente difusa. Esta circunstancia que permite hablar, en cierto modo, de un adelantamiento de la barrera penal.
 En este trabajo vamos a analizar los diferentes aspectos del régimen de control de riesgos existentes en el espacio judicial europeo, atendiendo a los instrumentos jurídicos en vigor. Asimismo, pondremos de manifiesto los principales escollos que impiden una protección global de las vías financieras; entre ellos –pero no los únicos – el déficit constatado en el ámbito del intercambio de información entre las autoridades implicadas, las dificultades para acceder a los datos de las operaciones financieras y la inexistente regulación en el sector de las criptomonedas, convertido en un refugio seguro para la captación de fondos por parte de la delincuencia organizada y el terrorismo. Por último, no olvidamos la necesaria referencia al futuro diseño de la estructura antiblanqueo que está construyendo la Unión, centrado en dos focos principales: el primero, localizado a nivel nacional, siendo este la función preventiva ejercida por las entidades financieras mediante el bloqueo y el control de las operaciones sospechosas; el segundo, centralizado, que prevé la creación de la futura autoridad central antiblanqueo común.

Pretrial risk assessment instruments in the US criminal justice system—what lessons can be learned for the European Union

Abstract This article explores the possibilities of using artificial intelligence (AI) in the European judicial area with a special emphasis on risk assessment instruments and the justification of their use in determining the likelihood that a defendant at large will seek to thwart the goal of criminal proceedings. In this regard, experiences in the application of various risk assessment instruments in US judicial practice are first analysed. Then the European normative framework established at the level of the Council of Europe and European Union (EU) law is considered with special emphasis on the ‘Proposal for a Regulation of the European Parliament and of the Council laying down harmonized rules on artificial intelligence’ as a key normative act that will determine the long-term preconditions for the application of the risk assessment instruments in the criminal proceedings of EU Member States. Finally, an attempt is made to give answers to some specific questions that arose from the implementation of AI in EU criminal justice systems taking into account the presumption of innocence, the right to an objective and impartial judge and the principle of proportionality.

Građansko pravosuđe i građanska pravda

The term "civil justice" as used here encompasses a wide range of issues related to civil procedural law, as part of EU legislation such as the "European judicial area" or the "European legal zone", where "judicial cooperation in civil matter" is intended as a means to achieve the greater goal of progressively establishing the "area of freedom, security and justice". Civil judiciary is not limited to the notion of useful "cooperation" between judicial authorities in different Member States in the context of ongoing litigation. Instead, more far-reaching (and politically sensitive) measures are envisaged, such as measures to harmonize the rules of civil procedure and the effects of judicial decisions outside the borders of the Member State making the decision.

MISCELÁNEA: EL REGLAMENTO (UE) 2019/1111 RELATIVO A LA COMPETENCIA, EL RECONOCIMIENTO Y LA EJECUCIÓN DE RESOLUCIONES EN MATERIA MATRIMONIAL Y DE RESPONSABILIDAD PARENTAL Y SOBRE LA SUSTRACCIÓN INTERNACIONAL DE MENORES (VERSIÓN REFUNDIDA): PRINCIPALES NOVEDADES

The Council Regulation 2019/1111 will become fully applicable in August 2022. This text is perhaps the most important legal Regulation of the civil cooperation in the European Judicial Area in international family matters. Its importance in daily practice entails the need to know the improvements of a very long Regulation that in some moments is not easy to read. The European Union has endeavored to bring a document that tries to balance, on the one hand, the long-await mutual trust, that allows the necessary integration in the construction of the European judicial area, and on the other hand, the protection of the best interest of child as a principle that acts at different levels.

The Role of the Constitutional Courts in the European Judicial Network

The constitutional courts play a paramount role within the European judicial area and form a specific branch of the judicial network, including the Court of Justice of the European Union (CJEU) and the European Court of Human Rights. Within the European Union (EU) with its specific compound structure, in which national legal orders and Union law reciprocally influence, complement, determine and affect each other, national constitutional courts and the CJEU are not only assigned with the common task to enforce EU law, but also to preserve its limits, first and foremost the principle of conferral and the constitutional identities of the Member States. The respect for these limits is an essential prerequisite for the Member State’s participation in the EU and repeatedly enshrined in the Treaties. In order to be able to fulfil this common tasks all sides need to engage in sincere cooperation and a dialectic process, the potential of which must not be curtailed by hierarchical perceptions.Whereas the national (constitutional) courts are obliged to respect the CJEU’s authority to ultimately decide on the interpretation of EU law in principle, it is the CJEU’s obligation to take their referrals seriously and thoroughly adress concerns brought forward. The constitutional courts of the Member States are assigned with the constitutional responsibility to accompany the process of European integration in order to ensure that sovereign rights are only transferred in line with the respective provisions as well as that the excercise of competences respects the limits laid down in the Treaties and does not interfere with the constitutional identities of theMember States. It is of course again for the CJEU to review whether EU institutions, bodies, offices, and agencies act within their mandate in the first place including a quite large tolerance for different interpretations. To the extend the CJEU, however, fails to assume this responsibility, it is for the constitutional courts of the Member States to step in. The desirable success of the European integration largely depends on an orderly, sustainable and generally accepted process in the long run to which the network of constitutional courts can make a decisive contribution, provided it is designed and lived as a true cooperation among equals. In this regard it is not only necessary to intensify the joint efforts, but also to evaluate possibilities to enhance the involvement of the national courts, in particular the establishment of a reverse preliminary ruling procedure. duty to give reasons, administrative measure, participation, administrative procedure

Competencia judicial internacional y medidas cautelares: hacia una tutela cautelar en el Proceso Civil Europeo convergente con los ordenamientos nacionales

La obtención y ejecución de medidas cautelares y provisionales en el ámbito de apli­cación del Derecho Internacional Privado de la Unión Europea constituye una materia que aún debe solventar diversas e importantes cuestiones controvertidas. Pese a la evolución efectuada en dicha mate­ria con el Reglamento 1215/2012 y con la jurisprudencia del TJUE, sigue sin estar claro el concepto de medida cautelar, la posibilidad de su solicitud con anterioridad a la sustanciación del asunto principal o la eficacia transfronteriza de las medidas adoptadas sin audiencia de la parte contraria. No obstante, en los últimos trabajos y propuestas de la Unión Europea para la armonización del Proceso Civil de la Unión, apreciamos una cierta tendencia a tratar de consagrar un régimen unitario de la tutela cautelar en el Es­pacio judicial europeo, caracterizado por admitir tanto la tutela cautelar solicitable ante causam como la adoptable inaudita parte debitoris y su eficacia transfronteriza más allá del Estado en que fue acordada.

Honorarios de abogado, reclamaciones y ejecución de sentencia. Una revisión del principio de confianza mutua entre los estados UE

Las normas de validez extraterritorial de decisiones ocupan un lugar importantísimo en el Derecho de la Unión Europea. Son las normas que culminan y potencian un espacio judicial europeo. Asimismo, son normas que refuerzan la seguridad jurídica y el intercambio internacional, puesto que permite a los particulares una vez que obtienen una resolución en un Estado miembro de la Unión Euro­pea que pueden ejecutarla, en ese Estado o en otro Estado de la Unión Europea de forma ágil. Incluido cuando es una de las partes implicadas un consumidor, tal como se observa en este trabajo.

Wpływ Brexitu na współpracę sądową w sprawach karnych w Unii Europejskiej

The withdrawal of the United Kingdom from the European Union is one of the main challenges for the continued functioning of the European judicial area in criminal matters. In this article, special attention will be paid to selected aspects of ensuring further judicial cooperation in criminal matters after Brexit. This primarily concerns the possibility of further participation of the United Kingdom in specific organs supporting this cooperation (Eurojust and Europol) and the the application of legal instruments implementing the principle of mutual recognition of judgments, with reference to the flagship legal instrument, i.e. the European arrest warrant. It also presents a unique position of the United Kingdom in the Area of Freedom Security and Justice EU, which that state is guaranteed under the provisions of Treaties.

The General Data Protection Regulation and its Violation of EU Treaties

While the EU General Data Protection Regulation, which entered force on 25 May, is generally good and necessary in its vigorous protection of the fundamental rights of self‑determination and identity of European people, the article identifies a core issue that has gone unnoticed: the GDPR violates EU treaties. It is, at base, a ‘European law’, yet European laws are banned under the TEU and TFEU. The article examines the background for this conflict. The ambitious plan for ratification of 2003’s draft treaty establishing a constitution for Europe fell at the first hurdle in 2005. The draft Constitution envisaged a legislative innovation: the European law and European framework law, directly applicable in the Member States and superior to them. These legal instruments, envisaged as replacing EU regulations, could readily be cited as a major federalist pillar of the draft. Yet there would be no European laws – they were rejected with the draft constitution in the 2005 referenda, and the current treaties do not foresee any law-like European legislation. The author outlines the GDPR’s nature as a European law thus: the regulation 1) potentially concerns all residents of Europe, albeit by adding to the rights of individuals and protecting their freedoms; 2) addresses virtually all legal entities and undertakings acting, physically or through a network, in the European judicial area; 3) addresses the Member States and the EU itself; 4) and has cross-border applicability and covers the whole EU. Furthermore, its reach extends to service providers outside the EU if their service targets EU data subjects. There are substantial impacts on subjects on whom obligations are substantial. Hence, the author concludes that the GDPR’s scope, depth, and impacts exceed all the limits that the EU treaties permit for regulations. Furthermore, the treaties do not even know the term ‘general regulation’. Since the GDPR possesses the characteristics of a ‘European law’ – and even is ‘seamlessly’ positioned in a place reserved by the draft EU Constitution for the ‘European law on data protection’ – while such laws have been rejected, a key issue is highlighted: how deep an EU-level political integration and relinquishment of the individual European nations’ sovereignty do the Member States actually want? For instance, most analyses of the causes of Brexit cite loss of sovereignty of the UK as one of the main factors in the decision. The author concludes that, since the GDPR is with us to stay, amendment of the EU treaties can no longer be avoided. Noble objectives cannot justify infringements of the present ‘European Constitution’ and the constitutions of the Member States.

The European Public Prosecutor’s Office : How to Implement the Relations with Eurojust?

After giving an overview of the current and envisaged role of Eurojust, this article outlines the future relationship between Eurojust and the European Public Prosecutor’s Office (EPPO). Here, the author identifies three levels of possible links between the two bodies: the institutional level, the operational level, and the administrative level for the sharing of services. They have a common denominator: the need to establish an intense reciprocal cooperation scheme, despite the diversity of the functions of the two bodies. If this strong cooperation is implemented in practice, it can become the driving force around which the entire European judicial area can be redesigned, in such a way that Eurojust will still continue to play a central role as regards judicial coordination and cooperation in criminal matters. Therefore, a non-antagonistic relationship with the European Public Prosecutor should be aimed for and pursued.

The Commission's Proposal for a Recast of Brussels IIa Regulation

The article is a first comment of the Commission's proposal for the recast of Brussels IIa Regulation (COM (2016) 411 final, on 30 June 2016). Though skewed towards protection of children, this legislative choice is justified on objective grounds and provides the outline of a legal framework which is essentially coherent and serves to achieve the objectives which have been set. The amendments dovetail with the previous framework, perfecting it and making it more effective, without disrupting it. Although not all the political choices can be fully endorsed, the choice of a ‘child-centric’ approach, which gives importance to the specific features of children’s rights, is obvious and certainly should be welcomed. This has been achieved through ad hoc rules which, partially, would seem to derogate from a general, central principle within the European judicial area, ie the principle of automatic recognition and enforcement of decisions, now contingent on respecting the child’s best interests, as ascertained by the enforcement judge. Partially, by means of a marked acceleration towards uniform procedural rules and, lastly, by means of increasingly close synergy and collaboration between judicial and administrative authorities, not only acting through central authorities but also directly between central authorities.

La Clef De Voûte Du Droit Judiciaire Européen : Le Règlement N ° 655/2014 Du 15 Mai 2014 Créant Une Procédure D ’ Ordonnance Européenne De Saisie Conservatoire Des Comptes Bancaires (OESC)

Regulation 655/2014 of 15 May 2014, creates a uniform procedure of attachment for bank accounts within the European Union. It has become part of a European procedural order for transnational matters. An enforcement process is thus placed alongside the litigation process, starting from an ex parte phase to a two-party appeal. The scope of application of the Regulation extends the European judicial area in a substantive and spatial direction. However, there are many references back to internal procedural law, making this extension variable in scope. Moreover, it is uncertain whether the debtor benefits from all of a defendant’s due process rights, notably if a consumer needs to exercise the right to appeal before the judge of the originating jurisdiction. In a good number of cases, it might be more convenient to obtain a judgment in a Member State and then, without exequatur, to proceed to an enforcement measure where the account is located (Article 40 Brussels Ia Regulation). The Account Preservation Regulation could nonetheless prove useful to surprise the debtor who is not yet informed about the litigation that is about to be unleashed against him.

Business Judgment Rule: A Generally Applicable Principle?

This article examines the reach and applicability of the business judgment rule as developed by US case law to civil law countries – especially countries from the European judicial area – that hold for an objective standard of due care and a wide margin of discretion for managers in making business decisions. The economic crisis and the awareness of the lack of predictability of all relevant economic parameters when making business decisions, make the applicability of the business judgment rule highly relevant. In light of this, the present article elaborates on the concrete functioning of the business judgment rule and focuses on its different components. Thereby, the business judgment rule is divided into a substantial and a procedural part. The paper’s findings are that only the substantial part of the business judgment rule may be applied in civil law countries that hold for an objective standard of due care for managers. However, the procedural part of the rule is likely to conflict with more specific national procedural rules that usually prevail.

From West Tankers to Gazprom: anti-suit injunctions, arbitral anti-suit orders and the Brussels I Recast

The coming into force of the Brussels I Recast on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and the recent development in the Gazprom case appears to have ignited the debate on the position of anti-suit injunctions in the European judicial area. Although anti-suit injunctions have been prohibited by the CJEU in the Turner and West Tankers cases, it has been argued that anti-suit injunctions may be permissible in the context of arbitration under the new Brussels I Recast, the current EU instrument regulating the jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It is therefore necessary to examine the position of anti-suit injunctions under the new legislative framework. This article will also examine the relationship between arbitral anti-suit orders and the Brussels I Regulation and its Recast.

Public Policy as an Exception to Free Movement within the Internal Market and the European Judicial Area: A Comparison

This article compares the public policy exception to free movement of goods, services, persons and capital (the four freedoms) with the public policy exception to free movement of judgments (the fifth freedom). A comparison is made on the basis of the following elements: types of public policy (domestic, international, purely inter-national; European; substantive and procedural), restrictiveness of interpretation, variability, content, nature and the addressees of protection. The conclusion is that there is only one concept of public policy that varies from time to time and from Member State to Member State, although there are some differences in the operation of the uses in the two areas of public policy.

Results of mediation and cross-border enforcement of mediation agreements

The author identifies three different methods of enforcing a cross-border mediated agreement. The first method consists of obtaining enforcement in the member state where the agreement was reached. The second method consists of making the mediated agreement, which has not been yet declared enforceable in the member state in which it was concluded, enforceable in the state where the enforcement should take place. The third and last possibility of enforcing a cross-border agreement within the European Judicial Area consists of using Regulation No 805/2004 and No 44/2001.

The Brussels I Regulation: Recent case law of the Court of Justice and the Commission’s proposed recast

The European law of civil procedure is a steady process of evolution and improvement. Marked by growing cooperation between the civil courts of EU Member States, this area of law is now increasingly dominated by judicial competition and by constitutional influences: on the one hand, the judicial systems of the Member States aspire to attract litigation of high value (often by plaintiff-oriented rules), and on the other hand, the European Court of Justice elaborates its case law on the principles of access to justice, free movement of judgments and fair trial in cross-border litigation. At present, the reform of the Brussels I Regulation (Reg. 44/2001) is on the legislative agenda. The main task of the European law-makers is to update the Regulation in order to maintain the sound administration of justice within the European Judicial Area by limiting competition between national judicial systems which does not necessarily correspond to the interests of private litigants. This article describes the ECJ's case law and takes stock of the present state of affairs for the Brussels I Regulation which is the cornerstone of the European law of civil procedure.

Amnesty International's Contribution to the European Commission's Green Paper “Strengthening Mutual Trust in the European Judicial Area – A Green Paper on the Application of EU Criminal Justice Legislation in the Field of Detention”

Amnesty International's Contribution to the European Commission's Green Paper “Strengthening Mutual Trust in the European Judicial Area – A Green Paper on the Application of EU Criminal Justice Legislation in the Field of Detention”