Emilia Vassileva [1]

 

 

The legal basis for the development of judicial cooperation in civil matters can be found in Article 81, par. 1 of the TFEU. Following the entry into force of the Amsterdam treaty, the European area of freedom, security and justice became a reality, enhanced by specific legal instruments which guarantee the mutual recognition of judgments rendered across the EU and which create an atmosphere of cooperation between national judicial bodies, while ensuring the free movement of judgments in a uniform entity without borders.

Judicial cooperation in civil matters was not initially a primary goal for the European Community. Nonetheless, the Rome Treaty encouraged the Member States to reduce the formalities in the mutual recognition and enforcement of judgments and arbitral decisions. Formally, however, the principle of mutual recognition was introduced only with the entry into force of the Maastricht Treaty. Considerable progress was achieved with the Amsterdam Treaty which transferred matters previously dealt within the thirdpillar (Police and Judicial Co-operation in Criminal Matters (PJCC) into the first (European Communities), such as asylum matters and visa and immigration policy. The Nice treaty made further progress with the exception of family law. The Tampere European Council and The Hague and Stockholm programs marked another significant step forward by recommending the broadening of the scope of judicial cooperation, in particular with regard to new domains such as marital property, wills and inheritance. The Lisbon treaty introduced the use of an ordinary legislative procedure for the entire framework of the judicial cooperation in civil matters, except for family law, where a more complex legislative procedure is in force whereby the Council, after consulting the European Parliament, votes unanimously.

As far as the choice of a competent jurisdiction and the mutual recognition and enforcement of judgments and arbitral decisions are concerned, the key legislative instrument is Regulation (EC) No 44/2001. The article examines in some detail the case law of the Bulgarian courts (mainly the Supreme Court of Cassation and the Sofia Court of Appeal) within the context of application of this Regulation on the following three areas: (1) the recognition and enforcement of judgments delivered in other EU Member States; (2) applications for provisional, including protective, measures (Arts 31 and 47 of the Regulation); and (3) the jurisdiction of the national court seized with an application coming within the scope of application of the Regulation.

Another crucial piece of legislation is Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the issues of parental responsibility. The article examines the case law of the Bulgarian Supreme Court of Cassation and of the Sofia Court of Appeal concerning the application and interpretation of the above-mentioned regulation, in particular with regard to (1) the application of the Regulation to divorce proceedings initiated before 01.01.2007; (2) the recognition and enforcement of judgments delivered in other EU Member States; and (3) the jurisdiction of the national court seized with an application coming within the scope of application of the Regulation.

As far as Regulation (EC) No 4/2009on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations is concerned, no relevant case law of the Bulgarian courts could be identified at this stage.

Regulation (EC) No 1346/2000 is also worth mentioning since it aims at facilitating the trans-border insolvency proceedings. The article discusses several judgments of the Bulgarian Supreme Court of Cassation, the Sofia Court of Appeal and the Varna Regional Court which apply the aforementioned regulation.

The case law of the Bulgarian Court of Cassation concerning Regulation (EC) No 805/2004 creating a European Enforcement Order for uncontested claims is also discussed. It mostly deals with applications for enforcement on the basis of a European Enforcement Order delivered in another EU Member State.

Regulation (EC) No 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession aims at removing the obstacles for inheriting property by a beneficiary from another Member State. It determines the competent jurisdiction, the applicable law, the recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession. It will become applicable law as of 17.08.2015.

Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I) and Regulation (EC) No 864/2007 on the applicable law to non-contractual obligations (Rome II) derogate from the provisions of the Private International Law Code. So far, there has been no national case law interpreting or applying these Regulations, with the exception of a case where the national courts were called upon to delimit the scope of application of the Rome II Regulation as compared to the one of Regulation 44/2001. Regulation (EU) No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation is, since 21.06.2012, applicable law in Bulgaria, which is one of the 15 EU Member States taking part in this enhanced cooperation.

Directive 2008/52 on certain aspects of mediation in civil and commercial matters should also be mentioned. It establishes common rules for citizens and professionals, aiming at enhancing legal security and encouraging the actual use of mediation in civil and commercial disputes.

EU law also contains a specific set of “instruments” regarding trans-border cooperation among national judicial bodies in the general framework of the judicial cooperation in civil matters. For example, Regulation (EC) No 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents). It facilitates the transfer of judicial and extra-judicial documents between national judicial bodies and thus contributes to the effectiveness of the judicial systems of the Member States. Another key element in this field is Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. This instrument also enhances indirectly the effectiveness in civil and commercial proceedings, thus boosting the overall expediency of the procedure. The Bulgarian Code of Civil Procedure contains a number of specific provisions regarding the application of these Regulations, while Bulgarian courts have already had to have recourse to these Regulations in their case law.

Finally, Council Decision 2001/470 establishing a European Judicial Network in civil and commercial matters should be mentioned. It is a flexible, non-bureaucratic structure, which operates in an informal environment and aims at simplifying judicial cooperation between the Member States. It gives informal support to the central authorities in the Member States and facilitates the contacts between national courts.

 

***

Линк към статията на български език: БЪЛГАРСКАТА СЪДЕБНА ПРАКТИКА В ОБЛАСТТА НА СЪДЕБНОТО СЪТРУДНИЧЕСТВО ПО ГРАЖДАНСКОПРАВНИ ВЪПРОСИ

***

[1] Judge at the Supreme Court of Cassation.