1. European Private International Law - 7.3.2012 JUDr. Tereza Kyselovská

2. Literature Interactive syllabi Articles Ulrich Magnus,Peter Mankowski,Alfonso-Luis Calvo Caravaca. Brussels I Regulation (available on books.google) JUDr. Tereza Kyselovská

3. Syllabus Competences of the EU in the area of EPIL Concept of autonomous interpretation Prejudicial questions Brussels I Regulation – Scope of application – Case law – Your presentation JUDr. Tereza Kyselovská

4. The EU competence Judicial cooperation in civil matters Article 81 (ex Article 65 TEC) The Union shall develop judicial cooperation in civil matters having cross- border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States. JUDr. Tereza Kyselovská

5. The EU competence … the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: JUDr. Tereza Kyselovská

6. The EU competence – the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; – the cross-border service of judicial and extrajudicial documents; – the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; – cooperation in the taking of evidence; – effective access to justice; – the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States JUDr. Tereza Kyselovská

7. The reference for a preliminary ruling Article 267 (ex Article 234 TEC) The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union; JUDr. Tereza Kyselovská

8. The reference for a preliminary ruling Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. JUDr. Tereza Kyselovská

9. (European) Private International Law Cross-border transaction, relationship, contract… 2 and more states and their legal systems involved -> 2 main questions arise: 1.Law applicable 2.Jurisdiction of courts JUDr. Tereza Kyselovská

10. (European) Private International Law Focus in rules of procedure -> determining court, FORUM Why is forum so important? Forum impacts: – ? JUDr. Tereza Kyselovská

11. Regulation Brussels I Therefore we will focus on procedural rules… COUNCIL REGULATION (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Regulation Brussels I) JUDr. Tereza Kyselovská

12. Regulation Brussels I Facilitate the judicial teratment of suits and judgments among the MS - uniform rules for civil cross-border litigation Different procedural formalities impede the judicial cooperation within the internal market JUDr. Tereza Kyselovská

13. Regulation Brussels I Based on principle of mutual trust Uniform and fair connecting factors Principle of legal certainty, foreseeability in the application and interpretation To grant the parties the widest possible freedom to select the competent forum Principle of automatic recognition JUDr. Tereza Kyselovská

14. Regulation Brussels I Importance: – Interpretation – the first and most important cases were on interpretation of Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 1968 (predecessor of the Brussels I Regulation) – Corner-stone and fundament of the European Judicial Area – judicial cooperation – necessity of free movement of judgments JUDr. Tereza Kyselovská

15. Case-law 1.Facts of the case (briefly) 2.Preliminary question(s) – “issue” (interpreted Article and notion) 3.Decision of the ECJ – “rule” 4.Key reasons of the decision 5.Evaluation of the importance of the decision for the interpretation and application of the Regulation 6.Examples of other cases concerning the same notion or Articles 7.Further reading – examples of books or Articles concerning the case (notion, Article) JUDr. Tereza Kyselovská

16. Case-law 1.LTU v. Eurocontrol 2.Rütter 3.Sonntag JUDr. Tereza Kyselovská

17. LTU v. Eurocontrol 1.Interpretation of the concept „civil and commercial matters“ – Reference must not be made to the law of one of the states, but – to the objectives and schemes of the Brussels I and the general principles which stem from the corpus of the national legal systems 2.Judgment given in an action between a public authority which acted in the exercise of its powers and a private person – excluded from Brussels I JUDr. Tereza Kyselovská

18. Rüffer The concept of "civil and commercial matters" within the meaning of the Brussels I does not include actions such as that referred to by the national court brought by the agent responsible for administering public waterways against the person having liability in law in order to recover the costs incurred in the removal of a wreck carried out by or at the instigation of the administering agent in the exercise of its public authority. JUDr. Tereza Kyselovská

19. Sonntag 'Civil matters' within the meaning of the first sentence of the first paragraph of Article 1 of the Brussels I cover an action for compensation for damage brought before a criminal court against a teacher in a State school who, during a school trip, caused injury to a pupil through a culpable and unlawful breach of his duties of supervision; this is so even where cover is provided under a social insurance scheme governed by public law. JUDr. Tereza Kyselovská

20. Autonomous interpretation Continuity between Brussels Convention and Regulation The Vienna Convention on the Law of Treaties cannot be applied to Regulation Brussels I (not international treaty) Interpretation of the Brussels Convention: 1.Questions of doubt to be answered without redress to a specific national law 2.Construction of terms and the gap-filling to be inferred from the Convention itself JUDr. Tereza Kyselovská

21. Autonomous interpretation Interpretation of the Regulation  Reference is made to the EU law as a whole, not to a specific national law (exceptions)  Does not exclude the use of the material on which the Regulation is based  Allows reference to instruments that have influenced the wording of Regulation (CISG, Rome Convention…) -> broad interconventional approach JUDr. Tereza Kyselovská

22. Autonomous interpretation The interpretation criteria:  Verbal  Historic  Systematic  Purposive interpretation (effect utile doctrine – single area of freedom, security and justice)  Comparative interpretation  General conformity with EU law  Conformity with Human Rights (ECHR) JUDr. Tereza Kyselovská

23. Regulation Brussels I Scope of application: 1.International element 2.Territorial scope 3.Material scope 4.Personal scope 5.Entry into force 6.No court discretion JUDr. Tereza Kyselovská

24. Regulation Brussels I Article 1 „This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.“ ->sets the scope ratione materiae of the Regulation JUDr. Tereza Kyselovská

25. 25 Thank you for your attention PROJECT „THEORY – SKILL – EXPERIENCE“ reg. No. CZ.1.07/2.2.00/15.0198, Operational Program Education for Competitiveness