Considerations on Revising the Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters

• Author: Alexandrina Zaharia, PhD
• Position: Associate Professor. "Danubius" University of Galati
• Pages: 1-5

Page 1

The legal framework on judicial cooperation in civil and commercial matters is the Regulation (EC) no. 44/2001 of the Council, on judicial competence and recognition of judgments in civil and commercial matters (Brussels I), which came into effect on March 1^st, 2002, named still in work Regulation. It replaced the 1968 Brussels Convention on judicial competence and enforcement of court judgments in civil and commercial matters. The regulation is compulsory with all its elements, and it is applicable in the Member States under the Treaty establishing the European Community. The Regulation contains norms of private international community law according to conflict resolution of judicial competence of private international law jurisdiction of the courts of Member States, the exequatur procedure, and it insures the free movement of court judgments, judicial transactions and authentic documents in the European Union. The Regulation is applied in Denmark since July 1^st, 2007, according to the agreement between the Community and Denmark. Regulation is directly applicable in international civil and commercial law matters and the Law no. 105/1992 on establishing the relation of private international law, continues to apply to the extent that the Regulation or the international treaties to which Romania is a party, do not establish another regulation.

What characterizes the Civil Processual Community Law is its supremacy in relation to national civil processual law. That is, it is directly applicable to European Union Member States, having no relevance at the moment of coming into effect the national civil procedure norm, which comes into a conflict with the community civil procedure norm. In other words, the community legal norms can be invoked directly by the parties in the litigation before national courts. The principle of direct effect of community law has its source the Van Gend en Loos decision of February the 5^th 1963, provided that the obligations should be accurate, clear, unconditioned and not to call on additional measures such as national or community ones. In this case, the European Court of Justice stated that "the community law (....), creating obligations for private individuals, aims at giving rise to rights that fall within their legal heritage (....) and gives rise to individual rights thatPage 2law. Therefore, if a national regulation is contrary to community stipulations, it is applied the community stipulation. Therefore, it results the need to obey the supremacy principle of the community law. This principle has its source in court judgment Costa Case against Enel, in July 15^th 1964: "EC Treaty established its own legal order, integrated in the legal system of Member States, after coming into effect the Treaty and which required their courts". The courts of the Member States may not invoke the principle of reciprocity to evade the appliance of community law, but they will obey the principle of priority in the application and enforcement of Community law. The occurred incidents on the interpretation of regulations must be solved according to community law.¹

The regulation is the "Queen" of community legislation regarding civil and commercial proceedings within the EU legal area, so their main concern is to assess the application in time and to propose the improvement of its rules. In this respect, article 73 of the Regulation provides that: "After at the latest five years from coming into effect this Regulation, the Commission presents it to the European Parliament and to the Economic and Social Council a report regarding the implementation of this Regulation. The report is accompanied where acquired by adaptation proposals to this Regulation.

In the present study we make some considerations on the Commission Report to the European Parliament, Council and Economic and Social Committee on implementing the Regulation and the Green Book on the amendment of Regulation (EC) no 44/2001 of the Council on judicial competence and the recognition of court judgments in civil and commercial matters, recently elaborated to its review under the above-mentioned laws. Green Book aimed at consulting the interested parties on how to improve the application of the Regulation regarding the specified matters in the report.

The report was prepared by the Commission on the basis of studies on: the practical application, such as causes deduced from judgment of the Regulation; the analysis of national competence norms...