Tag Archives: Mutual recognition principle

Mutual assistance by Member States in the field of direct taxation and taxation of insurance premiums

Mutual assistance by Member States in the field of direct taxation and taxation of insurance premiums

Outline of the Community (European Union) legislation about Mutual assistance by Member States in the field of direct taxation and taxation of insurance premiums

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Other

Mutual assistance by Member States in the field of direct taxation and taxation of insurance premiums

To combat international tax evasion and avoidance the European Union is strengthening collaboration between the Member States’ tax administrations and facilitate the exchange of information which appears relevant for the correct assessment of taxes on income and on capital.

Document or Iniciative

Council Directive 77/799/EEC of 19 December 1977 concerning mutual assistance by the competent authorities of the Member States in the field of direct taxation and taxation of insurance premiums.

Summary

Under this Directive, Member States’ competent authorities are required to exchange any information which appears relevant for the correct assessment of taxes on income and on capital and the assessment of indirect taxes:

  • value added tax;
  • excise duty on alcohol and alcoholic beverages:
  • excise duty on manufactured tobacco.

Taxes on income and on capital are deemed to include all taxes, irrespective of the manner in which they are levied, imposed on total income, on total capital, or on elements of income or of capital, including taxes on gains from the disposal of movable or immovable property, taxes on the amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.

The competent authority of a Member State may request the competent authority of another Member State to forward the information referred to at point 1.

All information made known to a Member State under the directives must be kept secret in that state in the same manner as information received under its domestic legislation.

These directives impose no obligation to have enquiries carried out or to provide information if the Member State which should furnish the information would be prevented by its laws or administrative practices from carrying out these enquiries or from collecting or using this information for its own purposes.

Directive 79/1070/EEC makes some changes to the wording of Directive 77/799/EEC.

Directive 92/12/EEC amends Directive 77/799/EEC to extend its scope to cover excise duties.

Directive 2003/93/EC extends the scope of mutual assistance provided for in Directive 77/799/EEC to cover the taxes on insurance premiums referred to in Directive 76/308/EEC so as to better protect the financial interests of the Member States and the neutrality of the internal market.

Directive 2004/56/EC is designed to speed up the flow of information between Member States’ tax authorities. On direct taxation (income tax, company tax and capital gains tax), in conjunction with taxes on insurance premiums, it permits the Member States to coordinate their investigative action against cross-border tax fraud and to carry out more procedures on behalf of each other. It thus updates Directive 77/799/EEC on mutual assistance and rectifies its weaknesses.

Council Directive 2004/106/EC amends the original title and the content of Directive 77/799/EEC. As provisions covering administrative cooperation in the field of excise duties are included in Council Regulation 2073/2004, Directive 77/799/EEC will henceforth focus only on mutual assistance by the competent authorities of the Member States in the field of direct taxation and taxation of insurance premiums.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 77/799/EEC [adoption by consultation] 23.12.1977 01.01.1979 OJ L 336 of 27.12.1977
Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal
Directive 79/1070/EEC 07.12.1979 01.01.1981 OJ L 331 of 27.12.1979
Directive 92/12/EEC 06.03.1992 01.01.1993 OJ L 76 of 23.03.1992
Directive 2003/93/EC 15.10.2003 31.12.2003 OJ L 264 of 15.10.2003
Directive 2004/56/EC 29.04.2004 01.01.2005 OJ L 127 of 29.04.2004
Directive 2004/106/EC 24.12.2004 30.06.2005 OJ L 359 of 04.12.2004
Directive 2006/98/EC 1.1.2007 1.1.2007 OJ L 363 of 20.12.2006

European evidence warrant

European evidence warrant

Outline of the Community (European Union) legislation about European evidence warrant

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

European evidence warrant (EEW)

Document or Iniciative

Council Framework Decision 2008/978/JHA of 18 December 2008 on the European evidence warrant for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters.

Summary

The European evidence warrant (EEW) is a judicial decision, whereby objects, documents and data may be obtained from other Member States. The EEW is issued by competent authorities designated by the Member States. An issuing authority may be a judge, court, investigating magistrate, public prosecutor or other judicial authority. Member States must also designate the competent authorities for recognising and executing the EEW.

The EEW may be issued to request objects, documents and data from other Member States for the following types of proceedings:

  • criminal proceedings brought by or to be brought before a judicial authority for criminal offences under the national law of the issuing state;
  • proceedings brought by administrative authorities for acts that are punishable under the law of the issuing state where the decision may give rise to court proceedings;
  • proceedings brought by judicial authorities for acts that are punishable under the law of the issuing state where the decision may give rise to further court proceedings;
  • all of the above, for offences for which the issuing state may punish or hold liable a legal person.

The issuing state must ensure that the evidence requested is necessary and proportionate for these proceedings. In addition, the acquisition of such evidence under similar circumstances in the issuing state must be provided for in its national law. Only once these conditions are met may the EEW be issued.

When the competent authority of an issuing state has reasonable grounds to believe that relevant evidence is located on the territory of another Member State, it may transmit the EEW to the competent authority of that state. The EEW must be transmitted directly from the issuing to the executing authority and in a manner that leaves a written record. To this end, Member States may designate one or more central authorities that will assist the competent authorities. Member States may also take advantage of the secure telecommunications system of the European Judicial Network for the transmission of EEWs.

The EEW is to be recognised by the executing authority without any further formality. The executing authority shall take the necessary measures to execute the EEW, unless it decides to invoke a ground for non-recognition, non-execution or postponement. When the EEW has not been issued or validated by a judge, court, investigating magistrate or public prosecutor, the executing authority may decide not to carry out a search or seizure to execute the warrant. However, it must consult the competent authority of the issuing state before taking such a decision. Member States may declare that they require such validation when the executing measures in a similar domestic case must be ordered or supervised by a judge, court, investigating magistrate or public prosecutor under its law.

If not stipulated otherwise in the framework decision, the executing authority shall comply with the formalities indicated by the issuing authority. However, these formalities may not contradict the fundamental principles of law of the executing state.

The executing state may refuse to recognise or execute the EEW within 30 days of receiving it if:

  • the execution breaches the ne bis in idem principle;
  • in certain cases specified in the framework decision, the act is not an offence under its national law;
  • execution is not possible with the measures available to the executing authority in the specific case;
  • there is an immunity or privilege under the law of the executing state that makes its execution impossible;
  • it has not been validated by a judge, court, investigative magistrate or public prosecutor in the issuing state when so required;
  • the offence was committed on the territory of the executing state or outside the issuing state where the law of the executing state does not allow for legal proceedings;
  • it would harm national security interests;
  • the form is incomplete or incorrectly completed.

The recognition or execution of an EEW may only be subject to verification of double criminality if a search or seizure is required for its execution and if it is not related to the list of offences set out in the framework decision.

The executing state is to take possession of the evidence within 60 days from receiving the EEW, unless there are grounds for postponement.

Member States must ensure that all interested parties have access to legal remedies against the recognition and execution of an EEW. These remedies may be limited to cases where coercive measures are used. The actions are to be brought before a court in the executing state; however, the substantive reasons for issuing the EEW may only be brought before a court in the issuing state.

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Framework Decision 2008/978/JHA

19.1.2009

19.1.2011

OJ L 350 of 30.12.2008

Mutual recognition of custodial sentences and measures involving deprivation of liberty

Mutual recognition of custodial sentences and measures involving deprivation of liberty

Outline of the Community (European Union) legislation about Mutual recognition of custodial sentences and measures involving deprivation of liberty

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Mutual recognition of custodial sentences and measures involving deprivation of liberty

Document or Iniciative

Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union [See amending act(s)].

Summary

This framework decision sets out the rules whereby judgements that impose custodial sentences or measures involving the deprivation of liberty delivered in one Member State are to be recognised and enforced in another Member State. The aim is to thus facilitate the social rehabilitation and reintegration of sentenced persons.

Member States must designate the competent authorities for issuing and executing judgements. The competent authority of the issuing state is responsible for forwarding the judgement accompanied by the certificate annexed to the framework decision directly to the competent authority of one executing state at a time and in a manner that leaves a written record.

When the sentenced person is located in the issuing or executing state and, under certain circumstances, has given his/her permission for forwarding the judgement, it may be transmitted to:

  • the Member State of which the sentenced person is a national and where s/he lives;
  • the Member State of which the sentenced person is a national and to which s/he could be deported following the judgement, even if this is not his/her place of residence;
  • any other Member State, provided that its competent authority agrees to the forwarding.

A judgement may be forwarded only once the issuing state has ensured that the enforcement of the sentence in the executing state would serve the purpose of facilitating the sentenced person’s social rehabilitation and reintegration. The latter may provide the issuing state with a reasoned opinion indicating that enforcement by it would not serve this purpose. The executing state, as well as the sentenced person, may also request the initiation of the procedure for forwarding judgements.

Upon receiving the forwarded judgement and certificate, the executing state must decide within a maximum of 90 days whether it will recognise the judgement and enforce the sentence.

The competent authority of the executing state has to recognise the judgment and take all necessary measures to enforce the sentence, unless it decides to invoke one of the grounds for non-recognition and non-enforcement provided in the framework decision. The non-recognition of the judgement and non-enforcement of the sentence is possible when the:

  • certificate is incomplete or does not correspond to the judgement;
  • criteria for forwarding the judgement and the certificate have not been fulfilled;
  • enforcement would contravene the ne bis in idem principle;
  • offence is not recognised as such under the law of the executing state, with certain exceptions;
  • enforcement is statute-barred under the law of the executing state;
  • law of the executing state provides for immunity;
  • sentenced person cannot be held liable under the law of the executing state due to his/her age;
  • remaining sentence is less than six months when the executing state receives the judgement;
  • sentenced person had not appeared in person at the trial where the judgement was passed, with certain exceptions;
  • issuing state rejects the request of the executing state to prosecute, sentence or otherwise deprive the liberty of the sentenced person for another offense committed before the transfer;
  • sentence requires for psychiatric or health care or for another measure involving the deprivation of liberty that the executing state cannot provide;
  • offence was committed on the territory of the executing state.

In case the certificate is incomplete or does not correspond to the judgement, the executing state may postpone its recognition.

The framework decision provides a list of offences that must be recognised and enforced without a double criminality check, if they result in a custodial sentence or a measure involving deprivation of liberty of a maximum of at least three years in the issuing state. For all other offences, the executing state may require that they constitute an offence also under its national law in order for them to be recognised and enforced. Where the duration or nature of the sentence is not compatible with the national law of the executing state, it may adapt the sentence. However, the adapted sentence must correspond as closely as possible to and in no case be harsher than the original sentence.

In line with the law of the issuing state, the consent of the sentenced person is required for the forwarding of a judgment and certificate to the executing state for recognition and enforcement of the sentence. However, this consent is not required when the executing state is the Member State:

  • of which the sentenced person is a national and where s/he lives;
  • to which the sentenced person is deported upon release, by reason of the order included in the judgement;
  • to which the sentenced person has fled or returned, while criminal proceedings against him/her are pending or following a conviction in the issuing state.

In any event, if the sentenced person is in the issuing state, s/he must be given the opportunity to provide an oral or written opinion.

When the sentenced person is located on the territory of the issuing state, s/he must be transferred to the territory of the executing state within a period of 30 days from the date when the latter has recognised the judgement.

Both the issuing and executing state may grant amnesty or pardon. However, only the issuing state may decide on the review of the judgement.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Framework Decision 2008/909/JHA

5.12.2008

5.12.2011

OJ L 327 of 5.12.2008

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Framework Decision 2009/299/JHA

28.3.2009

28.3.2011

OJ L 81 of 27.3.2009

Mutual recognition of supervision measures

Mutual recognition of supervision measures

Outline of the Community (European Union) legislation about Mutual recognition of supervision measures

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Mutual recognition of supervision measures

Document or Iniciative

Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention.

Summary

The framework decision lays down rules for the mutual recognition of supervision measures during criminal proceedings by European Union (EU) countries. These rules regulate the:

  • recognition of a decision on supervision measures;
  • monitoring of supervision measures;
  • surrendering of a person breaching supervision measures imposed on him/her.

Thus, the framework decision aims at:

  • making sure that the person concerned will be available to attend his/her trial;
  • promoting the use of non-custodial measures in criminal proceedings that take place in an EU country other than that where the person concerned is resident;
  • improving the protection of victims and the general public.

Types of supervision measures

EU countries must recognise and monitor supervision measures that impose an obligation on the person concerned to:

  • inform the authority monitoring the supervision measures of any change of residence;
  • not enter certain locations;
  • stay at a specified location;
  • comply with certain restrictions for leaving the territory of the monitoring country;
  • report at specified times to the designated authority;
  • refrain from contacting specific persons connected to the alleged crime.

The framework decision lists a number of additional supervision measures that each EU country may choose to monitor.

Forwarding supervision measures

An EU country may forward a decision on supervision measures to the competent authority of the EU country of residence of the person against whom the measures are imposed. However, the latter must have been informed of these measures and agreed to return to his/her country of residence. Following a request from the person concerned, a decision on supervision measures may also be forwarded to the competent authority of another EU country. In such cases, the authority in question must have agreed to receive the decision.

The competent authority of the EU country that issued the decision on supervision measures forwards this decision (or a certified copy of it) together with a certificate annexed to the framework decision directly to the competent authority of the EU country that will carry out the monitoring tasks. The competent authority of the issuing country must indicate the validity period of the decision on supervision measures and whether this decision may be renewed. In addition, it must specify the expected length of time needed for monitoring the supervision measures.

Recognising decisions on supervision measures

The country to which a decision on supervision measures is forwarded must recognise this decision and take the necessary measures for monitoring the supervision measures within 20 days from receipt. The framework decision lists certain offences for which decisions on supervision measures must in all cases be recognised, without verifying the double criminality of the acts. However, these offences must be punishable by a custodial sentence or a measure involving deprivation of liberty for a minimum of three years in the country that issued the decision on supervision measures.

For any other offences, the country that is to monitor the supervision measures may require the decision to relate to acts that are also an offence under its law in order to recognise the decision. Under certain circumstances, this country may refuse to recognise the decision on supervision measures altogether.

In case the supervision measures are not compatible with the law of the monitoring country, its competent authority may adapt these measures. However, the adapted measures must correspond as closely as possible to, and may in no case be more severe than, the original measures imposed.

Once the monitoring country has recognised the decision on supervision measures, it becomes competent for the monitoring of the supervision measures and its national law will govern the supervision.

Taking any subsequent decisions

The country having issued the decision on supervision measures has competence for any subsequent decisions concerning: the renewal, review and withdrawal of the original decision, the modification of the supervision measures and the issuing of an arrest warrant. Any decision on these will be governed by the law of the issuing country.

In case the competent authority of the issuing country modifies the supervision measures, the competent authority of the monitoring country may either:

  • adapt these measures, if they are not compatible with its national law, or
  • refuse to monitor these measures, if they fall outside the scope of this framework decision.

In case the competent authority of the issuing country issues an arrest warrant, the person concerned must be surrendered conforming to the procedures laid down in the framework decision on the European arrest warrant.

Background

The conclusions of the Tampere European Council of 15-16 October 1999 stressed the importance of applying the principle of mutual recognition to pre-trial orders. Consequently, the mutual recognition of supervision measures was taken up in the 2001 programme of measures to implement the principle of mutual recognition in criminal matters.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Framework Decision 2009/829/JHA

1.12.2009

1.12.2012

OJ L 294 of 11.11.2009

The right to interpretation and translation in criminal proceedings

The right to interpretation and translation in criminal proceedings

Outline of the Community (European Union) legislation about The right to interpretation and translation in criminal proceedings

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

The right to interpretation and translation in criminal proceedings

Document or Iniciative

Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings.

Summary

The directive establishes common minimum rules for European Union (EU) countries on the right to interpretation and translation in criminal proceedings as well as in proceedings for the execution of the European arrest warrant. It contributes to the proper functioning of judicial cooperation within the EU by facilitating the mutual recognition of judicial decisions in criminal matters. The directive also aims to improve the protection of individual rights by developing the minimum standards for the right to a fair trial and the right of defence guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Charter of Fundamental Rights of the EU.

Right to interpretation and translation

The right to interpretation and translation must be provided to persons who do not speak or understand the language of the procedure. This right must be provided from the time these persons are made aware of being suspected or accused of a criminal offence until the end of the criminal proceedings, including sentencing and ruling on appeal. In the case of minor offences, if sanctions are imposed by an authority other than a court having jurisdiction in criminal matters (e.g. the police following a traffic control), the right to interpretation and translation will only apply to the proceedings following an appeal before such a court.

EU countries must also make interpretation available for the persons concerned to communicate with their legal counsel on matters relating directly to any questioning or hearing during the proceedings or to the lodging of an appeal. They must have in place a mechanism for determining whether interpretation is necessary or not.

EU countries must also provide, within a reasonable time period, the suspected or accused persons with a written translation of essential documents, namely of any:

  • decision depriving them of liberty;
  • charge or indictment;
  • judgement.

On a case by case basis, the competent authorities may decide to translate any other documents. The suspected or accused persons or their legal counsel may also request the translation of other essential documents. In exceptional cases, an oral translation or an oral summary of the essential documents may be provided instead of a written translation, if this does not compromise the fairness of the proceedings.

Similarly, in proceedings for the execution of a European arrest warrant, the competent authorities must provide the persons concerned with interpretation and with a written translation of the warrant, if necessary.

The suspected or accused persons must have the right to challenge a decision whereby interpretation or translation is refused. They must also have the right to complain about the quality of the provided interpretation or translation, if it is not sufficient to guarantee the fairness of the proceedings.

Quality of interpretation and translation

EU countries must ensure that the quality of translation and interpretation is sufficient to allow the persons concerned to understand the case against them and to exercise the right of defence. To this end, EU countries should take concrete measures and, in particular, set up a register or registers of independent and appropriately qualified interpreters and translators.

Costs and recording

Regardless of the outcome of the criminal proceedings, EU countries must bear the costs of the interpretation and translation provided to the suspected or accused persons.

EU countries must use the recording procedure in accordance with their national law to note when the person concerned has:

  • been questioned or heard with an interpreter;
  • been provided with an oral translation or oral summary of essential documents;
  • waived the right to translation of documents.

Background

On 30 November 2009, the Council adopted a roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, which called for the adoption of measures also on the right to translation and interpretation. This roadmap was included into the Stockholm programme adopted on 10 December 2009. At the same time, the Commission was invited to assess further aspects of minimum procedural rights for suspected or accused persons to improve cooperation between EU countries in this field.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Directive 2010/64/EU

15.11.2010

27.10.2013

OJ L 280 of 26.10.2010

Rights of victims of crime

Rights of victims of crime

Outline of the Community (European Union) legislation about Rights of victims of crime

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in criminal matters

Rights of victims of crime (Proposal)

Proposal

Proposal for a Directive of the European Parliament and of the Council establishing minimum standards on the rights, support and protection of victims of crime [COM(2011) 275 final – Not published in the Official Journal].

Summary

The Commission proposes a Directive aimed at ensuring that victims * of crime have the same level of protection, support and access to justice in all European Union (EU) countries. It will replace Framework Decision 2001/220/JAI on the standing of victims in criminal proceedings and forms part of a series of measures aimed at strengthening victims’ rights.

The Directive will accord the status of victim not only to persons harmed by the offence, but also to certain family members * if the person dies as a result of the offence.

Information and support for victims

To enable them to fully access their rights, victims must receive sufficient information in a comprehensible form. They must also have access to psychological support and practical assistance. The Proposal aims to guarantee:

  • the right to receive information from first contact with a judicial authority, specifically on how to make a complaint of a criminal offence, details of the proceedings and how to obtain protection if required;
  • the right to receive information about their case, in particular on the decision to end or proceed with an investigation, on the time and place of the trial, and, under certain conditions, on the release of the person prosecuted for the offence;
  • the right to understand and to be understood;
  • the right to interpretation and translation: if victims do not speak the language of the criminal proceedings, they shall be provided with interpretation free of charge and shall receive a translation of the complaint made, of any decision ending the proceedings, and of information concerning their rights;
  • the right to access victim support services: these services must be free of charge and also accessible to certain family members. They provide emotional and psychological support, as well as practical assistance, for example concerning financial issues and the role of the victim in criminal proceedings.

Participation of victims in criminal proceedings

Victims have a legitimate interest in seeing that justice is done. Furthermore, they should be able to participate in the criminal proceedings which concern them. To this end, the Commission’s Proposal includes a number of rights which victims should be assured of:

  • the right to have their complaint acknowledged;
  • the right to be heard during the proceedings;
  • the right to request a revision in the event of a decision not to prosecute;
  • rights to safeguards in the event of using mediation and other restorative justice services; the aim is to protect victims from any intimidation or further victimisation during the process. These services can only be used with victims’ consent and after they have been properly informed. Consent may be withdrawn at any time;
  • the right to legal aid and to reimbursement of costs where the victim participates in criminal proceedings;
  • the right to the return of property seized in the course of criminal proceedings;
  • the right to a decision on compensation from the offender in the course of criminal proceedings;
  • concerning victims resident in another EU country, the difficulties connected with these cases should be reduced, specifically by taking a statement from the victim immediately after the complaint of the criminal offence is made and by using video conferencing and telephone conference calls as much as possible for the purpose of interviewing victims. Where victims were unable to make a complaint of a criminal offence in the State where the offence took place, they should be able to do so in their Member State of residence which will then send the complaint to the Member State concerned.

Recognition of vulnerability and protection of victims

The Commission proposes that measures should be available to protect the safety of victims and their family members from possible retaliation or intimidation by the offender. The authorities will therefore ensure that contact with the latter is reduced, particularly in premises where the criminal proceedings are conducted.

During the investigation, victims will be interviewed quickly and only as many times as is necessary. If they wish, they may be accompanied by a legal representative or by a person of their choice. Their private life as well as that of their family must be protected.

The Proposal for a Directive recognises that certain people have a particularly high risk of suffering further during criminal proceedings. After an assessment of their individual needs, these vulnerable victims shall be accorded certain additional rights and services. This Proposal considers children, disabled people and victims of sexual violence or human trafficking to be vulnerable victims.

It is important that justice professionals, police officers and members of the victim support services receive appropriate training so that they are better able to meet the needs of victims.

Key terms of the Act
  • Victim: any natural person who has suffered harm, including physical or mental injury, emotional suffering or economic loss directly caused by a criminal offence; also any family members of a person whose death has been caused by a criminal offence.
  • Family member: the spouse, non-marital cohabitee, registered partner, the relatives in direct line, the brothers and sisters, and the dependants of the victim.

Reference

Proposal Official Journal Procedure

COM(2011) 275

2011/129/COD

Related Acts

Proposal for a Regulation of the European Parliament and of the Council on mutual recognition of protection measures in civil matters [COM(2011) 276 final – Not published in the Official Journal].
The aim of the proposed Regulation is that any protection measure issued by a Member State will be easily recognised in the rest of the EU without any further formality other than a standardised, multi-lingual certificate.

Co-decision procedure (2011/0130/COD)

Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions of 18 May 2011 – Strengthening victims’ rights in the EU [COM(2011) 274 final – Not published in the Official Journal].

Jurisdiction, recognition and enforcement of judgments in civil and commercial matters

Jurisdiction, recognition and enforcement of judgments in civil and commercial matters

Outline of the Community (European Union) legislation about Jurisdiction, recognition and enforcement of judgments in civil and commercial matters

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in civil matters

Jurisdiction, recognition and enforcement of judgments in civil and commercial matters (“Brussels I”)

Document or Iniciative

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [See amending act(s)].

Summary

The regulation lays down rules governing the jurisdiction of courts in civil and commercial matters. A judgment given in an European Union (EU) country is to be recognised without special proceedings, unless the recognition is contested. A declaration that a foreign judgment is enforceable is to be issued following purely formal checks of the documents supplied. The regulation lists grounds for non-enforcement; however, courts are not to raise these of their own motion. The regulation does not cover revenue, customs or administrative matters. Neither does it apply to:

  • the status or legal capacity of natural persons, matrimonial matters, wills and succession;
  • bankruptcy;
  • social security;
  • arbitration.

Rules of jurisdiction

The basic principle is that jurisdiction is to be exercised by the EU country in which the defendant is domiciled, regardless of his/her nationality. Domicile is determined in accordance with the domestic law of the EU country where the matter is brought before a court. If a party is not domiciled in the EU country of the court considering the matter, the court is to apply the law of another EU country to determine whether the party is domiciled in said state. In the case of legal persons or firms, domicile is determined by the country where they have their statutory seat, central administration or principal place of business. In the case of trusts, domicile is defined by the court that is considering the case by applying its own rules of private international law *.

Suing the defendant in another EU country

Apart from the basic principle on jurisdiction, in certain circumstances a defendant may be sued in the courts of another EU country. The regulation lists areas of jurisdiction where this is so: special or exclusive jurisdiction, as well as jurisdiction on matters relating to insurance, consumer contracts and individual contracts of employment.

The courts’ special jurisdiction includes the following:

  • matters relating to a contract: as a general rule, these will be dealt with by the courts for the place of performance of the obligation in question;
  • matters relating to maintenance: as a general rule, these are to be brought before the courts for the place where the maintenance creditor is resident;
  • matters relating to liability for wrongful acts – tort, delict or quasi-delict: these will be decided by the courts for the place where the harmful event occurred or may occur.

In matters relating to insurance, an insurer may be sued in the courts of the EU country where s/he is domiciled or of the EU country where the plaintiff is domiciled if the actions are brought by the policy holder, the insured or a beneficiary. In respect of liability insurance or insurance of immovable property, the insurer may, in addition, be sued in the courts for the place where the harmful event occurred.

The regulation also lays down rules on jurisdiction in matters relating to contracts concluded by consumers. “Consumers” are defined as persons who conclude a contract with a professional for a purpose outside of their own trade or profession. All contracts concluded with a person who pursues commercial or professional activities in the EU are covered, with the exception of contracts of transport, other than those providing for a combination of travel and accommodation for an inclusive price. The consumer is protected in the way described here if the contract concluded on the sale of goods is financed on instalment credit terms or through a loan repayable by instalments or any other form of credit. In order for the consumer to enjoy this protection in other cases, the contract must have been concluded with a person who pursues commercial or professional activities in the EU country in which the consumer is domiciled or directs such activities to that country. A consumer may bring proceedings either in the courts of the EU country in which the defendant is domiciled or in the courts for the place where the consumer (the plaintiff) is domiciled. Proceedings may be brought against a consumer by the other party to the contract only in the courts of the EU country in which the consumer is domiciled.

In matters relating to individual contracts of employment, employees may either sue their employer in the courts of the EU country where the employer is domiciled or in the courts of the EU country where the employee habitually works. An employee who does not habitually work in any one country may sue the employer in the courts for the place where the business that engaged the employee has its seat. An employer who is not domiciled in any EU country, but has a branch, agency or other establishment in one of the EU countries, is deemed to be domiciled in that country. An employer may bring proceedings against an employee only in the courts for the place where the employee is domiciled.

Regardless of domicile, the following courts have exclusive jurisdiction in proceedings concerning:

  • rights in rem in immovable property or tenancies of immovable property: the courts of the EU country in which the property is situated;
  • the validity of the constitution, the nullity or the dissolution of companies or other legal persons or of the validity of the decisions of their organs: the courts of the EU country in which the legal person has its seat;
  • the validity of entries in public registers: the courts of the EU country in which the register is kept;
  • the registration or validity of patents, trade marks, designs or other similar rights: the courts of the EU country in which the deposit or registration has been applied for, has taken place or is under the terms of an Union instrument or an international convention deemed to have taken place;
  • the enforcement of judgments: the courts of the EU country in which the judgment has been or is to be enforced.

If the parties, one or more of whom is domiciled in the EU, have concluded a choice of jurisdiction * clause, the agreed court will have jurisdiction. The regulation lays down a number of formalities that must be observed in such choice of jurisdiction agreements: the agreement must be in writing or in a form that respects practices the parties have established between themselves or, in international trade or commerce, in a form that accords with a usage of which the parties are aware.

Similarly, there are provisions for rules regarding co-defendants, actions on a warranty, guarantee or other third-party proceedings, counterclaims and matters relating to a contract if the action may be combined with an action relating to rights in immovable property.

The regulation also provides a mechanism to handle cases pending elsewhere (lis pendens) and related actions.

Recognition and enforcement

A judgment given in an EU country is to be recognised in the other EU countries without any special procedure being required. “Judgment” means any judgment given by a court or tribunal of an EU country, whatever the judgment may be called, including a decree, order, decision or writ of execution. Under no circumstances may a foreign judgment be reviewed as to its substance.

A judgment will not be recognised if:

  • such recognition is manifestly contrary to public policy in the EU country in which recognition is sought;
  • the defendant was not served with the document that instituted the proceedings in sufficient time and in such a way as to enable the defendant to arrange for his/her defence;
  • it is irreconcilable with a judgment given in a dispute between the same parties in the EU country in which recognition is sought;
  • it is irreconcilable with an earlier judgment given in another EU or non-EU country involving the same cause of action and the same parties.

A court in which recognition is sought of a judgment given in another EU country may stay the proceedings, if an ordinary appeal against the judgment has been lodged.

A judgment is to be enforced in another EU country when, on the application of any interested party, it has been declared enforceable there. The parties may appeal against a decision on an application for a declaration of enforceability.

Superseding the Brussels Convention of 1968

The regulation supersedes the Brussels Convention of 1968, which was applicable between the EU countries before the regulation entered into force. The convention continues to apply with respect to those territories of EU countries that fall within its territorial scope and that are excluded from the regulation pursuant to Article 299 of the Treaty establishing the European Community (now Article 355 of the Treaty on the Funtioning of the European Union). The regulation also lists a number of other conventions, treaties and agreements between EU countries that it supersedes.

Even after the regulation entered into force, questions of jurisdiction between Denmark and the other EU countries continued to be governed by the Brussels Convention of 1968. This Danish opt-out was based on the 1997 Protocol No 5 on the position of Denmark annexed to the Treaties (now Protocol No 22). On 19 October 2005, the EU concluded an agreement with Denmark on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters that extended the provisions of the regulation to that country. On 27 April 2006, the agreement was approved on behalf of the EU by Council Decision 2006/325/EC. It entered into force on 1 July 2007.

As provided for in the Protocol on the position of the United Kingdom and Ireland annexed to the Treaties, these two countries have indicated their wish to take part in the adoption and application of the regulation.

Key terms used in the act
  • “Private international law” governs the international element in matters of private law, i.e. family law, law of contract, etc. It is the branch of the domestic law of states that indicates which law, domestic or foreign, is to be applied in a particular case.
  • “Choice of jurisdiction” is a general principle of private international law under which the parties to a contract are free to designate a court to rule on any dispute even though that court might not have jurisdiction on the basis of the factors objectively connecting the contract with a particular place.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Regulation (EC) No 44/2001

1.3.2002

OJ L 12, 16.1.2001

Amending act(s) Entry into force Deadline for transposition in the Member States Official Journal

Regulation (EC) No 1791/2006

1.1.2007

OJ L 363, 20.12.2006

Regulation (EC) No 1103/2008

4.12.2008

OJ L 304, 14.11.2008

Successive amendments and corrections to Regulation (EC) No 44/2001 have been incorporated in the basic text. This consolidated versionis for reference purposes only.

Related Acts

Report from the Commission to the European Parliament, the Council and the European Economic and Social Committee of 21 April 2009 on the application of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters [COM(2009) 174 final – Not published in the Official Journal].

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility [Official Journal L 338 of 23.12.2003].
This regulation applies in civil matters relating to divorce, legal separation and the annulment of marriage, as well as to all aspects of parental responsibility. It does not apply in civil matters relating to maintenance obligations, which are covered by Regulation (EC) No 4/2009.

Jurisdiction, applicable law and a European Certificate in succession matters

Jurisdiction, applicable law and a European Certificate in succession matters

Outline of the Community (European Union) legislation about Jurisdiction, applicable law and a European Certificate in succession matters

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in civil matters

Jurisdiction, applicable law and a European Certificate in succession matters

Document or Iniciative

Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 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.

Summary

This regulation applies to the succession to the estates of deceased persons. It is not applicable to revenue, customs or administrative matters.

Jurisdiction

The courts of the EU country in which the deceased had his habitual residence at the time of death shall have jurisdiction to rule on the succession as a whole. Where the habitual residence of the deceased at the time of death is not located in an EU country, the courts of an EU country in which assets of the estate are located shall have jurisdiction to rule on the succession, provided that the deceased had:

  • the nationality of that EU country at the time of death; or
  • his previous habitual residence in that EU country, provided that, at the time the court is seised, no more than 5 years have elapsed since the habitual residence changed.

Where the deceased has made a choice of law in accordance with the Regulation and the law chosen by the deceased is of an EU country, the parties concerned may agree that the courts of that EU country are to have exclusive jurisdiction to rule on any succession matter.

The courts of the EU country in which the deceased had his habitual residence at the time of death can decline the jurisdiction to govern the succession if it considers that the courts of the EU country of the chosen law are better placed to rule on the succession, taking into account the practical circumstances of the succession, such as the habitual residence of the parties and the location of the assets.

The courts of an EU country whose law had been chosen by the deceased shall have jurisdiction if:

  • under specific conditions laid down in the Regulation, a court previously seised has declined jurisdiction in the same case;
  • the parties to the proceedings have agreed to confer jurisdiction on the courts of that EU country;
  • the parties to the proceedings have expressly accepted the jurisdiction of the court seised.

Applicable law

Unless otherwise provided for in this Regulation, the law applicable to the succession as a whole shall be the law of the country in which the deceased had his habitual residence at the time of death.

A person may choose as the law to govern his succession the law of the country whose nationality he possesses at the time of making the choice or at the time of death. A person with multiple nationalities may choose the law of any of the countries whose nationality he possesses.

The law governs in particular:

  • the causes, time and place of the opening of the succession;
  • the determination of the beneficiaries, of their respective shares and of any obligations imposed on them by the beneficiary, and the determination of other succession rights;
  • the capacity to inherit;
  • disinheritance and disqualification by conduct;
  • the transfer to the heirs and, as the case may be, to the legatees of assets, rights and obligations forming part of the estate;
  • the powers of the heirs, the executors of the wills and other administrators of the estate, without prejudice to specific rules on the appointment and powers of an administrator of the estate in certain situations;
  • liability for the debts under the succession;
  • the disposable part of the estate, the reserved shares and other restrictions on the disposal of property upon death, as well as claims which persons close to the deceased may have against the estate or the heirs;
  • any obligation to restore or account for gifts, advancements or legacies when determining the shares of the different beneficiaries;
  • the sharing-out of the estate.

Recognition and enforceability of decisions

Decisions given in an EU country shall be recognised throughout the EU without any special procedure being required.

Decisions enforceable in the EU country where they have been given shall be enforceable in another EU country when, on the application of an interested party, they have been declared enforceable there by the local court or competent authority.

Acceptance and enforcement of authentic instruments

Authentic instruments established in an EU country shall have the same evidentiary effects in another EU country as it has in the EU country where they have been established, or the most comparable effects, provided that this is not manifestly contrary to public policy in the EU country concerned.

Authentic instruments enforceable in the EU country where they have been established shall be enforceable in another EU country when, on the application of an interested party, they have been declared enforceable there by the local court or competent authority.

European Certificate of Succession

This Regulation creates a European Certificate of Succession which is for use by heirs, legatees having direct rights in the succession, and executors of wills or administrators of the estate who, in another EU country, need to invoke their status or to exercise their rights as heirs or legatees and/or their powers as executors of wills or administrators of the estate. Once issued, the Certificate is effective in all EU countries without any special procedure being required.

Final provisions

This Regulation shall apply to the succession of persons who die on or after the 17 August 2015. Choices of law and dispositions of property upon death made prior to that date are valid under specific conditions laid down in the Regulation.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Regulation (EU) No 650/2012

16.8.2012

OJ L 201 of 27.7.2012

The law applicable to contractual obligations – The Rome I Regulation

The law applicable to contractual obligations – The Rome I Regulation

Outline of the Community (European Union) legislation about The law applicable to contractual obligations – The Rome I Regulation

Topics

These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in civil matters

The law applicable to contractual obligations – The Rome I Regulation

Document or Iniciative

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).

Summary

This Regulation applies to contractual obligations in civil and commercial matters in the event of a conflict of laws. It does not apply to revenue, customs or administrative matters, or to evidence and procedure.

Nor does the Regulation apply to the obligations relating to the following:

  • a natural person’s status or legal capacity;
  • family relationships;
  • matrimonial property regimes;
  • negotiable instruments such as bills of exchange, cheques and promissory notes;
  • arbitration and choice of court;
  • law of companies and other corporate or unincorporated bodies;
  • the binding of a principal or a company to a third party;
  • trusts;
  • dealings that occur before a contract is concluded;
  • insurance contracts, except those defined in Article 2 of Directive 2002/83/EC concerning life assurance.

Any law indicated in this Regulation should be applied, even if it is not that of a Member State.

Freedom of choice

The parties to a contract are to choose the governing law. It may be applied to only a part or the whole of the contract. Provided that all the parties agree, the applicable law may be changed at any time. If the law chosen is that of a country other than that relating most closely to the contract, the provisions of the latter law need to be respected. If the contract relates to one or more Member States, the applicable law chosen, other than that of a Member State, must not contradict the provisions of Community law.

Applicable law in the absence of choice

Where the parties have not chosen the applicable law for contracts for the sale of goods, provision of services, franchises or distribution, it will be determined based on the country of residence of the principal actor carrying out the contract. For contracts concerning immovable property, the law of the country where the property is located is applied, except in the cases of temporary and private tenancy (maximum six consecutive months). In such cases the applicable law is that of the landlord’s country of residence. In the case of sale of goods by auction, the law of the country of the auction will apply. With regard to certain financial instruments governed by a single law, the applicable law will be that law.

If none, or more than one of the above rules apply to a contract, the applicable law will be determined based on the country of residence of the principal actor carrying out the contract. If, however, the contract is related more closely to another country than provided by these rules, the law of that country will be applied. The same applies when no applicable law can be determined.

Rules applicable to specific contracts

For the following types of contract, the Regulation lays down options for the selection of applicable law and determines the law to be applied in the absence of choice:

  • contracts for the carriage of goods – in the absence of choice, the applicable law will be that of the country of residence of the carrier, provided that this is also the place of receipt or delivery, or the residence of the consignor. Otherwise, the law of the country to which the delivery will be made will apply;
  • contracts for the carriage of passengers – the applicable law may be chosen from either the country of residence of the passenger or carrier, the country where the central administration of the carrier is located, or the country of departure or destination. In the absence of choice, the law of the country of residence of the passenger will apply, provided that it is also the place of departure or destination. Yet, if the contract is more closely related to another country, then the law of that country will apply;
  • consumer contracts between consumers and professionals – the applicable law is that of the country of residence of the consumer, provided that this is also the country where the professional carries out his/her activities or to which his/her activities are directed. The parties may also, based on freedom of choice, apply another law, as long as it provides the same level of protection to the consumer as that of his/her country of residence;
  • insurance contracts – in the absence of choice, the applicable law will be that of the country of residence of the insurer. However, if the contract is more closely related to another country, that country’s law will apply;
  • individual employment contracts – the applicable law may be determined on the basis of the freedom of choice principle, provided that the level of protection granted to the employee remains the same as with the applicable law in the absence of choice. In the latter case, the law governing the contract will be that of the country where, or from where, the employee carries out his/her tasks. If this cannot be determined, the applicable law will be that of the country where the place of business is located. However, if the contract is more closely related to another country, that country’s law will apply.

Scope of the law applicable

The law this Regulation determines as applicable to a contract will regulate interpretation, performance, penalties for breaching obligations, assessment of damages, termination of obligations, instructions for actions, and penalties for invalid contracts. The Community law that establishes conflict-of-law rules for contractual obligations relating to particular matters takes precedence over this Regulation, except in the case of insurance contracts.

The Commission will submit a report on the application of this Regulation to the European Parliament, the Council and the European Economic and Social Committee by 17 June 2013.

The Regulation will apply to contracts that are concluded as from 17 December 2009.

Background

The Vienna Action Plan of 1998 acknowledged the importance of harmonised conflict-of-law rules in the implementation of the mutual recognition principle for decisions in civil and commercial matters. The joint Commission and Council programme of 2000 provides measures for this harmonisation. The Hague Programme of 2004 reasserted the importance of pursuing work on conflict-of-law rules for contractual obligations, with its Action Plan providing for the adoption of the Rome I proposal. This ensuing Regulation replaces the Rome Convention of 1980 on the law applicable to contractual obligations, transforming it into a Community instrument and modernising it.

References

Act Entry into force Deadline for transposition in the Member States Official Journal

Regulation (EC) No 593/2008

24.7.2008 OJ L 177 of 4.7.2008

This summary is for information only. It is not designed to interpret or replace the reference document, which remains the only binding legal text.

Convention on parental responsibility and protection of children

Convention on parental responsibility and protection of children

Outline of the Community (European Union) legislation about Convention on parental responsibility and protection of children

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These categories group together and put in context the legislative and non-legislative initiatives which deal with the same topic.

Justice freedom and security > Judicial cooperation in civil matters

Convention on parental responsibility and protection of children

Document or Iniciative

Council Decision 2003/93/EC of 19 December 2002 authorising the Member States, in the interest of the Community, to sign the 1996 Hague Convention on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children.

Summary

The Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children was concluded within the framework of The Hague Conference on Private International Law on 19 October 1996. However, only sovereign states may accede to the convention. By way of exception, the Council therefore authorises the European Union (EU) countries to sign the convention.

Nevertheless, the EU retains exclusive competence for the provisions of the convention that fall within the scope of the regulation on jurisdiction, recognition and enforcement of judgements in matrimonial matters and matters of parental responsibility (the “Brussels II” Regulation). Consequently, EU countries must make a declaration upon signing the convention, whereby EU law continues to be applied to the recognition and enforcement within the Union of judgments given on matters relating to the convention by an EU country.

Scope

The convention contributes to the protection of children at international level. It applies to children up to 18 years of age, aiming to establish:

  • the country having jurisdiction to take measures to protect a child or his/her property;
  • the law applicable for exercising this jurisdiction;
  • the law applicable to parental responsibility;
  • recognition and enforcement of the protection measures in all signatory countries;
  • cooperation between the signatory countries.

The measures aimed at protecting a child relate to:

  • parental responsibility;
  • the rights of custody;
  • guardianship;
  • the representation of the child;
  • the placement of the child in foster or other care;
  • the supervision of the care provided to the child;
  • the management of the child’s property.

Jurisdiction

In general, the country of the child’s habitual residence has jurisdiction to take measures to protect the child or his/her property. For refugee or internationally displaced children or for children whose habitual residence cannot be established, the country in which they are present has jurisdiction.

In a particular case, if another country appears to be better placed for assessing the best interests of the child, it may be allowed to assume jurisdiction. In cases of emergency, the country on whose territory the child or his/her property is present may exercise jurisdiction to take any necessary protection measures.

Applicable law

The country exercising its jurisdiction does so under the rules of its own law. Under exceptional circumstances, it may apply or take into consideration the law of another country that is closely connected to the situation, provided that this is in the best interest of the child. The application of the law designated by the convention can only be refused for public policy reasons, and provided that it is in the best interest of the child.

Recognition and enforcement

The measures a signatory country takes under this convention to protect a child or his/her property must be recognised in all other signatory countries. Only in a limited number of cases, as specified in the convention, may recognition be refused. When protection measures are declared enforceable in another country, that country must enforce the measures as if it had taken them itself and carry out the enforcement in accordance with its own law.

Cooperation

Each signatory country must designate one or more central authorities to carry out the obligations imposed upon it by the convention. These authorities are to cooperate and exchange information with each other, as well as to promote cooperation among their national authorities.

References

Act Entry into force Deadline for transposition in the Member States Official Journal
Decision 2003/93/EC

1.6.2003

OJ L 48 of 21.2.2003

Related Acts

Council Decision 2008/431/EC of 5 June 2008 authorising certain Member States to ratify, or accede to, in the interests of the European Community, the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children and authorising certain Member States to make a declaration on the application of the relevant internal rules of Community law [Official Journal L 151 of 11.6.2008].
This decision authorises EU countries that have not yet ratified or acceded to the convention to do so. This concerns Belgium, Germany, Ireland, Greece, Spain, France, Italy, Cyprus, Luxembourg, Malta, the Netherlands, Austria, Poland, Portugal, Romania, Finland, Sweden and the United Kingdom. In view of depositing their instruments of ratification or accession simultaneously, these countries are to exchange information with the Commission and Council on the status of the related procedures. This exchange should take place before 5 December 2009, after which the date of the simultaneous deposit (preferably before 5 June 2010) will be established.
This decision also authorises Bulgaria, Cyprus, Latvia, Malta, the Netherlands and Poland to make a declaration aimed at ensuring that EU rules on recognition and enforcement of judgements will continue to apply in the Union.