Mr Carlos M.G. De Melo Marinho - EJTN

The future development 

of European legal 

instruments 

Carlos M. G. de Melo Marinho 

Judge of Court of Appeal 

Vienna – March 2013

Present situation 

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● 

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Private international law in EU has stopped being a matter of national law 

and of some sporadic international conventions – namely of the Hague 

Conference on Private International Law – and started to have a horizontal 

and common dimension; 

It was expressly recognized that private international law measures are 

required to support the free movement of citizens; 

Consistent efforts were made at the EU level, in order to reach the 

establishment of an area of freedom, security, and justice through the 

adoption of measures in the field of judicial cooperation in civil matters, 

thus aiming to make reality the command coming from Article 61 EC Treaty 

and, after, from Article 67 TFEU; 

Carlos M. G. de Melo Marinho - Judge of Court of Appeal 2


● 

A broad framework of private international law has been established – 

several regulations, directives – especially on legal aid (2002/8/EC), 

compensation of crime victims (2004/80/EC) and mediation (2008/52/EC) – 

and decisions on judicial cooperation in civil and commercial matters were 

approved and are in force, accompanied by programs – Hague Program 

(2004) and the Stockholm Program (2009) –, conclusions, guides and 

declarations, produced during 14 years; 

● 

It was developed and materialized the revolutionary idea of the free 

circulation of judicial (or similar) decisions – general suppression of the 

intermediate measures for enforcement (exequatur) – principle of mutual 

recognition of judicial and extra-judicial decisions in civil matters – Article 61 

TEC, Article 29 TEU and Article 67 of TFEU; it was several times times used 

after Brussels II bis Regulation and was aimed to extend it to the most 

important tool of this area, the Brussels I Regulation; 



● 

● 

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It was recognized the principle of the direct cooperation between the EU 

courts; 

It was established a European Judicial Network in civil and commercial 

matters which produced some fruits and helped to install the new logic of 

the judicial cooperation in the EU – Council Decision 2001/470/EC, in OJ L 

174, 27.6.2001, p. 25 and Decision No 568/2009/EC in OJ L 168, 30.6.2009, p. 

35; 

The intervention of the central authorities was reshaped, becoming 

qualified and better articulated but residual; 



● 

The regulation became the instrument of choice for the EU law production in the 

civil and commercial area, for efficacy reasons. The following represent the result 

of such choice: 

✔ 

Brussels I Regulation, No. 44/2001, on jurisdiction, recognition and 

enforcement, (from 2015, the Regulation No 1215/2012 of 12 December 

2012); 

✔ 

European Enforcement Order Regulation, No. 805/2004; 

✔ 

European Order for Payment Procedure Regulation, No. 1896/2006; 

✔ 

European Small Claims Procedure Regulation, No. 861/2006; 

✔ 

Insolvency Regulation, No. 1346/2000; 

✔ 

Taking of evidence Regulation, No. 1206/2001; 



✔ 

Service of documents Regulation No. 1393/2007; 

✔ 

✔ 

✔ 

Rome I Regulation, No. 593/2008 on contractual obligations; 

Rome II Regulation, No. 864/2007, on non-contractual obligations; 

Brussels II bis Regulation, No. 2201/2003 on jurisdiction, recognition 

and enforcement divorce and parental responsibility; 

✔ 

Maintenance Regulation, No. 4/2009; 

✔ 

Rome III Regulation, No. 1259/2010 (divorce and legal separation) and 

Succession Regulation, No. 650/2012. 


Pending law creation 

● 

Matrimonial property regimes – COM(2011) 126 of 16 March 2011; 

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Property consequences of registered partnerships – COM(2011) 127 of 16 

March 2011; 

● 

Mutual recognition of protection measures in civil matters – COM(2011) 276 

of 18.5.2011. 


Program emerging from the TFEU 

● 

Development of the three central themes of private international law – 

international jurisdiction, the applicable law and the recognition and 

enforcement of foreign judgments – Article 81(2)(a) and (c) of the Treaty 

on the Functioning of the European Union (TFEU); 

✗ 

✗ 

Difficulty: the adoption of family law measures requires 

unanimity – Article 81(3); 

Possible solution in family matters: the procedure of 

enhanced cooperation; see the Rome III Regulation on the law 

applicable to divorce (Council Regulation (EU) No. 1259/2010 

of 20 December 2010), in which fifteen Member States 

presently participate and, in a different area, the unitary 

patent protection Regulations, No. 1257/2012 and No 

1260/2012; 



✗ 

Risks: 

(a) creation of two speeds in the building of the 

European Space of Justice; 

(b) tendency to prioritize non-family subjects. 

● 

Development of the existing rules on procedural and statutory aspects 

of the judicial cooperation – service of judicial and extra-judicial 

documents, taking of evidence, and access to justice – Article 81(2)(b), (d) 

and (e); 



● 

Promotion of the compatibility of the rules on civil procedure applicable 

in the Member States, where necessary to assure the proper functioning of 

civil proceedings – which still leaves us far from a EU Civil Procedure Code – 

Article 81(2)(f); 

● 

Development of alternative methods of dispute settlement – Article 81(2) 

(g); 

● 

Support for the training not only of the judiciary but also of the judicial 

staff – Article 81(2)(h). 


Next great objectives 

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● 

To produce isolated legal instruments that can cover the specific private 

international law areas that, in spite of the enormous post-Amsterdam 

Treaty developments, are still governed by national rules or that will be 

considered decisive to grant the cooperation between the European 

Courts; 

Assure, in such process, the coherence and common interpretation of the 

legal tools – risks of loosing congruity: see the Regulation Regulation (EU) 

No. 650/2012 in matters of succession that abandons the promising route 

of the absolute suppression of recognition procedures and exequatur seen 

in other European Regulations in Civil and Commercial Matters posterior to 

Brussels II bis Regulation and just sets up full mutual recognition of 

decisions, authentic instruments and court settlements; 



● 

Generate the conditions for the creation, on a medium/long term basis, of 

a comprehensive legal structure or a EU Private International Law code 

(simple merging of the existing instruments into one single instrument, 

new code, corrective code, codification with recast; eventually starting by 

the merging of Regulations Rome I and II) 

Advantages: 

✗ 

✗ 

✗ 

✗ 

Reduction of the volume of the legislation; 

Accessibility; 

Clarity on the content of the private international law rules; 

Better approach to the citizens and companies with the consequent 

diminution of the obstacles to their entrance into cross-border 

economical and juridical relationships; 



✗ 

✗ 

✗ 

✗ 

✗ 

Systematization; 

Correction of redundancies; 

Attainment of a coherent structure of private international law rules; 

Simplification of the training of the legal professionals; 

Reduction of the costs in cross-border litigation – not only for the parties 

but also at the level of the system functioning expenses. 

Difficulties: 

✗ 

✗ 

Scarce political support; 

Non coincident perspectives on central notions of private international 

law; 



✗ 

✗ 

✗ 

✗ 

✗ 

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Strong differences on the conceptions of society and sexual life with 

expression on substantive law, namely in the family domain, same-sex 

marriages, registered partnerships and names; 

Distinct scope and subject matters; 

More complex legislative process; 

Harder process of gradual approval of instruments having incidence on 

specific topics, particularly if it is chosen a time concentrated or 

simultaneous adoption of such code; 

Attainment of substantial agreements on central principles – general 

concepts of private international law (e.g. the role of overriding 

mandatory law and the application of foreign law); 

Present tendency for the enhanced cooperation and the special 

positions of United Kingdom, Ireland and Denmark. 



● 

● 

To make information and direct access to justice tools available to citizens 

and business through digital means; 

Widely perform the training of the European legal professionals in order to 

prepare them for the European judicial cooperation in civil matters and to 

act in the new common space of justice. 


Challenges 

● 

To call the citizens to the new dynamics of the judicial cooperation in civil 

and commercial matters; 

● 

● 

● 

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To avoid the recurrence of rules coming from the co-existence of legal 

instruments in converging areas; 

To fight complexity that comes from increasing the volume of the EU law 

eventually through codification; 

To harmonize the EU law; 

To produce accessibility to such law in spite of the referred increase of 

volume; 

● 

To fight the incompatibility of legal systems and to create common 

approaches; 


Challenges 

● 

● 

● 

To provide certainty on the definition of the applicable law; 

To mitigate the effects on the common area of justice produced by the 

special position held by the UK, Ireland (decision to opt in is needed), and 

Denmark (excluded from this dynamics) that generates territorial 

disintegration – two-speed Europe –, fragmentation of the EU framework 

and loss of coherence and previsibility of the rulings, moves away and 

frightens the citizens and decreases their level of comprehension of the EU 

law system, generating phenomenons of ‘forum shopping’ within the EU; 

To give worldwide territorial scope to some instruments – eg. expanding 

effects to non-EU torts, parties, and legal rules; 


Challenges 

● 

The establishment of minimum procedural standards can lead to the 

creation of procedural rules also applicable to non cross-border relations 

and of an European procedure code – as it was envisaged in the first 

preparatory works of the triptych small claims, European Enforcement 

Order and Order for payment procedure and admitted by the proposals of 

the Storme working group, presented to the Commission in 1993: Marcel 

Storme (ed.), Rapprochement du Droit Judiciaire de L’Union 

européenne/Approximation of Judiciary Law in the European Union, Martinus 

Nijhoff Publishers 1994 


Areas that need to be covered 

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Trusts – even being, essentially, a common law figure; 

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Agency; 

Corporations; 

Property; 

Non-marital registered partnerships and similar institutions; 

Marriage; 

Names of natural persons; 

Adoption; 

Parentage; 


Areas that need to be covered 

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Protection of adults; 

Status and capacity of natural persons; 

Arbitration; 

Nuclear damage; 

Insurance contracts not included in Rome I Regulation; 

Violation of privacy rights; 

Collective redress – mass claim cases, namely consumer collective redress; 

see the Green Paper from 27.11.2008, COM(2008) 794 final, presented by 

the Commission, the 2009 Consultation Paper and the Hearing on 

collective redress of 5 April 2011.

Mr Carlos M.G. De Melo Marinho - EJTN

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