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THEMIS COMPETITION 2017 Semi – Final C: European Civil Procedure

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THEMIS COMPETITION 2017 Semi – Final C: European Civil Procedure THEMIS COMPETITION 2017 Semi – final C: European Civil Procedure Mutual Trust: a Core Principle of EU Law or a Threat for the Protection of the Fundamental Right of Defence in the EU especially after EU Regulation 1215/2012? “Umbrellas”, by George Zongolopoulos * GREEK TEAM TUTOR Gerasimos Mafredas Pelayia Yessiou – Faltsi Eirini Sartzetaki Angeliki Tzifa Thessaloniki, May 2017 Table of Contents Mutual Trust: a Core Principle of EU Law or a Threat for the Protection of the Fundamental Right of Defence in the EU especially after EU Regulation 1215/2012? ... 2 I. Preliminary remarks.................................................................................................................... 2 II. Simultaneous application of the CJEU concept of mutual trust and of the ECtHR presumption of equivalent protection? .......................................................................................... 2 1. Respect of fundamental rights and the development of the concept of mutual trust ........................................................................................................................................................... 2 2. Opinion 2/13: Mutual trust as a key objection against the accession of the EU to the ECHR ............................................................................................................................................ 4 3. Respect of human rights and the development by the ECtHR of the presumption of equivalent protection ....................................................................................... 6 III. Historical overview of the application of the right of defence within the EU law 8 1. The Brussels Convention........................................................................................................ 8 2. Regulation 44/2001 ................................................................................................................. 9 3. Regulation 1215/2012 .......................................................................................................... 10 IV. Avotinš v Latvia : mutual trust v the presumption of equivalent protection ..... 11 1. The Judgement of the Grand Chamber of the ECtHR ................................................ 11 2. The separate opinions: id est a preview of the future? ........................................... 15 V. The automatic enforcement problematic regarding default judgements ............ 16 VI. Concluding remarks ................................................................................................................... 19 1 Mutual Trust: a Core Principle of EU Law or a Threat for the Protection of the Fundamental Right of Defence in the EU especially after EU Regulation 1215/2012? I. Preliminary remarks Recently, the European Court of Human Rights (hereinafter referred to as “ECtHR”) dealt, for the first time, with the issue of recognition and enforcement of foreign judgements under Regulation 44/2001, in the case of Avotiņš v Latvia.1 More specifically, the ECtHR seized the opportunity to discuss the compatibility of the principle of mutual trust with the right to a fair trial under article 6(1) of the European Convention on Human Rights (hereinafter referred to as “ECHR”). This problematic is more prominent in the light of the recast Regulation 1215/2012, which abolished exequatur proceedings, aiming to make cross – border litigation less time – consuming and costly. A systematic approach on the matter requires a previous analysis of the principle of mutual trust, which is the cornerstone of the automatic recognition provided for in Regulation 1215/2012. Within this context, two questions arise, namely: a) does the principle of mutual trust allow a full review of the protection of fundamental rights under article 6 of the ECHR? and b) how has the relationship between the ECtHR and the CJEU2 evolved, with regard to this protection? II. Simultaneous application of the CJEU concept of mutual trust and of the ECtHR presumption of equivalent protection? 1. Respect of fundamental rights and the development of the concept of mutual trust Although the founding treaties of the European Communities did not contain express provisions for the protection of human rights, the CJEU shortly developed its own case – law on the role of fundamental rights in the European legal order. According to this well – established case – law, fundamental rights form an integral part of the general principles of EU law. Since the 1970s, the CJEU, being inspired from the common constitutional traditions of 1 ECtHR, 23 May 2016, Avotiņš v Latvia (Appl. no. 17502/07). In this case, although ECHtR applied the “presumption of equivalent protection”, it further implied that its application should not be taken for granted. 2 Court of Justice of the European Union (hereinafter referred to as “CJEU”). 2 the Member States and from the guidelines supplied by international treaties, whose parties are the Member States,3 elaborated, on a case-by-case basis, a catalogue of fundamental rights, the observance of which it ensures. Article 6(3) of the TEU codified that case – law and explicitly recognizes that fundamental rights constitute general principles of the Union's law. Even though the CJEU recognized the ECHR’s4 “special significance” on the protection of human rights,5 as things stood before the Treaty of Lisbon came into force, the Community did not have the competence to accede to this already existing ECHR.6 Given this long-lasting absence of an EU legal instrument, comprising an explicit catalogue of fundamental rights, easily accessible to citizens, the Community adopted the Charter of Fundamental Rights of the European Union (hereinafter referred to as “Charter”) and granted the CJEU the power for its observance. The Charter, initially proclaimed in Nice on 7 December 2000 (at that time not being legally binding) and now (post-Lisbon) part of EU primary law (article 6(1) of the TEU), aims to reaffirm fundamental rights, binding all EU institutions and Member States (article 51(1) of the Charter). Charter rights, which correspond to rights guaranteed by the ECHR, should be given the same interpretation as those ECHR rights. Besides, the Charter, in so far as its provisions are inspired by those of the ECHR, recognizes the ECHR as establishing the minimum human rights standards (article 52(3) of the Charter). Article 6(2) of the TEU (post-Lisbon), looking forward to the construction of a coherent European area regarding fundamental rights, explicitly requires the Union to accede to the ECHR. Since this has not yet been achieved though, the risk of the existence of dividing lines in Europe in the human rights field still remains.7 In the light of the above incoherent standards of human rights’ protection at a European level, many issues regarding sufficient harmonisation of fundamental rights and effective ways for their full protection arise. To mitigate those issues and promote the cooperation between Member States, particularly in the area of freedom, security and justice, the concept of mutual 3 Internationale Handelsgesellschaft, C-11/70, ECLI:EU:C:1970:114, paragraph 4, and Nold v Commission, C-4/73, ECLI:EU:C:1974:51, paragraph 13. 4 The ECHR was drafted in 1950 by the Council of Europe and entered into force on 3 September 1953. 5 For instance: ERT v DEP, C‑260/89, ECLI:EU:C:1991:254, paragraph 41, and Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 and C‑415/05, ECLI:EU:C:2008:461, paragraph 283. 6 Opinion 2/94, ECLI:EU:C:1996:140, paragraphs 34 and 35. 7 The two legal instruments (Charter and ECHR) can thus create the false impression that the EU and ECHR systems are isolated from each other. 3 trust was invoked. Mutual trust, as a term, is not defined in the treaties.8 It is the ratio (pre- condition) of mutual recognition,9 which was characterized by the European Council, at Tampere meeting held in 1999, as the cornerstone of judicial cooperation in both civil and criminal matters within the Union.10 The concept of mutual trust refers to the confidence Member States have, or should have, in the functioning of each other’s legal systems and aims at facilitating the harmonisation of national legislations and the free circulation of court judgments in the internal market. Gradually, the CJEU upgraded mutual trust from a concept to a core principle of EU law with significant importance since “it allows an area without internal borders to be created and maintained”; and extended its effects beyond the field of judicial cooperation in the field of asylum and migration policy.11 Opinion 2/13 of the CJEU confirmed that approach by referring to mutual trust as a constitutional principle.12 According to CJEU’s case – law, the principle of mutual trust requires Member States, when implementing EU law, to presume that fundamental rights have been observed by the other Member States.13 According to the above presumption, Member States: a) may not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law and b) save in exceptional cases, they may not check whether another Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU. 2. Opinion 2/13: Mutual trust as a key objection against the accession of the EU to the ECHR Given the accession mandate included in article 6(2) of the TEU, the EU and the Council of Europe reached a draft accession agreement, which was rejected by the
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