Original scientific paper
Hierarchy of Sources of the European Civil Law Procedure in the European Area of Civil Justice
Vilim Bouček
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
This paper is dedicated to the distinguished Professor Dr. Mihajlo Dika, one of the greatest scholars in the field of Civil Procedure Law and a renowned intellectual and humanist. And perhaps more importantly, Professor Dika is an unforgettable teacher and mentor and one of my dearest colleagues.
The development of the European Private International Law (PIL) system in the post-Amsterdam (1999) stage of European law shows that its provisions have gradually come under the competence of the EU and have deeply influenced autonomous national law.
Croatia entered the EU on 1 July 2013, at which moment the process of communitarization of PIL in the member states (MS) was nearly completed. The process of Croatia's accession to the EU, which started in 2001, practically coincided with the communitarization of PIL rules in the EU. In civil matters with cross-border implications, faced with a jungle of national and EU PIL rules and competences, every judge and arbitrator in Croatia should apply provisions of PIL, including international civil procedure rules. In order to fulfil his duty he must obey the following hierarchy of norms.
According to the general clause in Article 216 TFEU, the EU is empowered to conclude international agreements with one or more third countries. Therefore, in principle, the EU member states lose the authority to enter into international agreements. In these cases, the exclusive external competence of the EU applies (Article 3(2) TFEU), which only confirms the earlier ECJ Opinion 1/03 of 7 February 2006 concerning the conclusion by the EC of the 2007 Lugano Convention to be applied in the European Economic Area.
For the purposes of internal market and the constitution of the European judicial area (Article 67(1) TFEU), which requires common rules of judicial cooperation in civil matters (Article 81 TFEU), the EU has adopted a number of key EU regulations on international jurisdiction, the choice of law (Article 81(2) (c) TFEU), and mutual recognition and enforcement of judgments (Article 81(2) (a) TFEU). These regulations are binding in their entirety and directly applicable in Croatia. They prevail over national sources and, as a rule, supersede conventions concluded between member states. That makes national PIL rules, special statutes and PIL Acts or customary law applicable only to legal issues not falling within the (material) scope of EU regulations. Since 1988 a considerable number of directives have been adopted, containing conflict rules with EU-related application. They are binding as well, but they become applicable only by enactment through national legislation, thus producing a direct effect on parties involved in PIL matters.
Finally, the national and EU PIL provisions must comply with the general principles of EU law (Articles 18, 20 to 21 TFEU), with free movement (Articles 34 to 36, Article 36, Article 45, Article 49, Article 54, Articles 56 and 63 TFEU); and respect for basic human rights (Article 6, Articles 8 and 13) of the 1950 European Convention on Human Rights) and (Articles 24 and 47) the 2000 EU Charter of Fundamental Rights.
Keywords
hierarchy of norms; Sources of European Civil Procedure Law; Treaty of Lisbon of 2007; European Area of Civil Justice
Hrčak ID:
121518
URI
Publication date:
28.2.2014.
Visits: 3.697 *