Justice and Home Affairs: Eu Notary Congress Hears Mixed Views on Need for Harmonised Civil Law

European Social Policy, November 22, 2005 | Go to article overview

Justice and Home Affairs: Eu Notary Congress Hears Mixed Views on Need for Harmonised Civil Law


Step-by-step approach.

The two-day conference was kicked off by Italy's Prime Minister Silvio Berlusconi, although his speech focused more on national rather than European issues. Summing up the EU Commission's strategy, Mr Frattini told journalists: "I am in the process of harmonising legislation in the civil law domain. There will never be a European civil law code but we must manage the consequences of different laws and jurisdictions". Addressing the congress, he said he favoured a "step-by-step approach" and stressed that mutual recognition was the cornerstone for actions at EU level.

On contract law, the Commissioner said he would soon table a proposal to convert the inter-governmental 1980 Rome Convention into an EU instrument. The Rome Convention sets out whose law applies in contractual disputes of a cross-border nature. Legislation was in the pipeline on applicable law in divorce and wills as a follow-up to the Commission's March 2005 Green Papers, he added. He also flagged up proposals on non-contractual disputes (Rome II), small claims and uncontested debts that the Commission has tabled but which the European Parliament and EU Council of Ministers have not yet adopted.

Two-tier justice?

But Mr Tenreiro - a Head of Unit in Mr Frattini's department - was sceptical about relying solely on mutual trust in one another's legal systems: "Mutual recognition implies access to justice like you have in your own member state. But what if there is not justice in your member state - is there a European justice then", he asked. Mr Tenreiro said he received complaints every day from citizens about alleged injustices where he is obliged to reply that it is a purely national issue.

For example, he criticised the Council for excluding purely domestic cases from the scope of the 2003 Legal Aid Directive. He said the Council would probably do the same with the proposed EU Order for Payment Regulation. This will mean that people owed money from debtors in their own country (i.e. domestic cases) will not be able to use the new, optional European procedure. "It is a little bit strange to have one set of rules for some people and another system for other people but this is what the member states want. Apparently we now have 25 perfect legal systems", he said.

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Mr Tenreiro's comments shed some light on the ongoing dispute between the Council and Commission over the EU's powers to legislate in the area of civil law. Article 65 of the EC Treaty allows the European Union to adopt measures "in civil matters having cross-border implications, to be taken in accordance with Article 67 and in so far as necessary for the proper functioning of the internal market". The Commission argues that this covers both domestic and cross-border cases but the Council says it only covers cross-border ones.

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Access to profession probed. …

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