european private international law - 7.3.2012 judr. tereza kyselovská

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  • European Private International Law - 7.3.2012JUDr. Tereza Kyselovsk

  • LiteratureInteractive syllabiArticles

    Ulrich Magnus,Peter Mankowski,Alfonso-Luis Calvo Caravaca. Brussels I Regulation (available on books.google)

    JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • SyllabusCompetences of the EU in the area of EPILConcept of autonomous interpretationPrejudicial questionsBrussels I RegulationScope of applicationCase lawYour presentationJUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • The EU competence Judicial cooperation in civil matters Article 81 (ex Article 65 TEC)

    The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States. JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • The EU competence the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring:

    JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • The EU competence the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; the cross-border service of judicial and extrajudicial documents; the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction;cooperation in the taking of evidence; effective access to justice; the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member StatesJUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • The reference for a preliminary rulingArticle 267 (ex Article 234 TEC)The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • The reference for a preliminary rulingWhere such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court. JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • (European) Private International LawCross-border transaction, relationship, contract2 and more states and their legal systems involved

    -> 2 main questions arise:Law applicableJurisdiction of courts

    JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • (European) Private International LawFocus in rules of procedure -> determining court, FORUMWhy is forum so important?Forum impacts:????JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • Regulation Brussels ITherefore we will focus on procedural rules

    COUNCIL REGULATION (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Regulation Brussels I)

    JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • Regulation Brussels IFacilitate the judicial teratment of suits and judgments among the MS - uniform rules for civil cross-border litigationDifferent procedural formalities impede the judicial cooperation within the internal marketJUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • Regulation Brussels IBased on principle of mutual trustUniform and fair connecting factorsPrinciple of legal certainty, foreseeability in the application and interpretationTo grant the parties the widest possible freedom to select the competent forumPrinciple of automatic recognition

    JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • Regulation Brussels IImportance:Interpretation the first and most important cases were on interpretation of Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters 1968 (predecessor of the Brussels I Regulation)Corner-stone and fundament of the European Judicial Area judicial cooperation necessity of free movement of judgments

    JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • Case-lawFacts of the case (briefly) Preliminary question(s) issue (interpreted Article and notion)Decision of the ECJ ruleKey reasons of the decisionEvaluation of the importance of the decision for the interpretation and application of the RegulationExamples of other cases concerning the same notion or ArticlesFurther reading examples of books or Articles concerning the case (notion, Article) JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • Case-lawLTU v. EurocontrolRtterSonntagJUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • LTU v. EurocontrolInterpretation of the concept civil and commercial mattersReference must not be made to the law of one of the states, butto the objectives and schemes of the Brussels I and the general principles which stem from the corpus of the national legal systems

    Judgment given in an action between a public authority which acted in the exercise of its powers and a private person excluded from Brussels I

    JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • RfferThe concept of "civil and commercial matters" within the meaning of the Brussels I does not include actions such as that referred to by the national court brought by the agent responsible for administering public waterways against the person having liability in law in order to recover the costs incurred in the removal of a wreck carried out by or at the instigation of the administering agent in the exercise of its public authority.

    JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • Sonntag'Civil matters' within the meaning of the first sentence of the first paragraph of Article 1 of the Brussels I cover an action for compensation for damage brought before a criminal court against a teacher in a State school who, during a school trip, caused injury to a pupil through a culpable and unlawful breach of his duties of supervision; this is so even where cover is provided under a social insurance scheme governed by public law.JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • Autonomous interpretationContinuity between Brussels Convention and Regulation The Vienna Convention on the Law of Treaties cannot be applied to Regulation Brussels I (not international treaty)Interpretation of the Brussels Convention:Questions of doubt to be answered without redress to a specific national lawConstruction of terms and the gap-filling to be inferred from the Convention itselfJUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • Autonomous interpretationInterpretation of the RegulationReference is made to the EU law as a whole, not to a specific national law (exceptions)Does not exclude the use of the material on which the Regulation is basedAllows reference to instruments that have influenced the wording of Regulation (CISG, Rome Convention) -> broad interconventional approach

    JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • Autonomous interpretationThe interpretation criteria:VerbalHistoricSystematicPurposive interpretation (effect utile doctrine single area of freedom, security and justice)

    Comparative interpretation General conformity with EU lawConformity with Human Rights (ECHR)JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • Regulation Brussels IScope of application:International elementTerritorial scopeMaterial scope Personal scopeEntry into forceNo court discretion

    JUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • Regulation Brussels IArticle 1This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

    ->sets the scope ratione materiae of the RegulationJUDr. Tereza Kyselovsk

    JUDr. Tereza Kyselovsk

  • *Thank you for your attentionPROJECT THEORY SKILL EXPERIENCEreg. No. CZ.1.07/2.2.00/15.0198, Operational Program Education for Competitiveness

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