II. European court of justice and jurisdiction and enforcement of judgments in civil and commercial matters

International and Comparative Law Quarterly

Volumn 48, Issue 1, 1999, Pages 223-229

  Beaumont, Paul ^a  

^a UNIVERSITY OF ABERDEEN   (United Kingdom)

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[No Author keywords available]

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EID: 0345952737     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300062989     Document Type: Review

References (21)

1. (1997) 46 I.C.L.Q. 205–212.
2. Case C-321/95P Greenpeace and Others v. Commission, judgment of 2 Apr. 1998.
3. Idem, paras.28–29.
4. For the position of the Court before and in the light of the nine-judge decision in Case C-309/89 Codorniu v. Council [1994] E.C.R. I-1853
5. see Weatherill and Beaumont, EC Law (2nd edn, 1995), pp.227–246.
6. See Proceedings of the Court of Justice and Court of First Instance of the EC No 36/97.
7. H. Rasmussen suggests docket control for the ECJ by giving it the power to vet appeals from the CFI by a system of leave to appeal and by giving the CFI jurisdiction over preliminary rulings; see European Court of Justice (1998), pp.166–168. He also suggests liberalising locus standi for private applicants (see chap.6) but has little or nothing to say about how the CFI is supposed to cope with its burgeoning case load.
8. (1997) OJ. C340/203. This is part of the new Title IV of the EC Treaty inserted at Amsterdam on Visas, Asylum, Immigration and other policies related to Free Movement of Persons, but for the purpose of this note the focus is on the private international law competence only.
9. See the need to “contextualise” questions discussed in Weatherill and Beaumont, OJ, at pp.289–290
10. the Court's Guidance on References by National Courts for Preliminary Rulings [1997] 1 C.M.L.R. 78,80.
11. See (1997) OJ. C340/99.
12. See (1997) O.J. C340/101. Denmark can choose under Art.5 of the Protocol, within six months of the Council deciding on a proposal or initiative building on the Schengen acquis, to implement that measure into Danish law. However, the Schengen acquis does not relate to private international law issues.
13. See Art.7 of the Protocol. This may present serious political problems in Denmark because some of the issues in Title IV are politically sensitive and were implicated in the Edinburgh European Council Decision of December 1992 which turned around the referendum decision in Denmark on the Treaty on European Union; see Weatherill and Beaumont, EC Law (1st edn, 1993), pp.773–779, esp. p.777.
14. See Tide VI of the TEU, Arts.29–45 (ex Art.K). Discussed by Walker (1998) 47 I.C.L.Q.231.
15. Of course the Brussels II Convention on jurisdiction and the recognition and enforcement of judgments in matrimonial matters was adopted under Art.K of the TEU on 28 May 1998 (1998) O.J. C221.
16. The drafters of the Convention were aware of the problem and a declaration was annexed to the minutes of the Council meeting on 28 and 29 May 1998 which commits the Council, together with the ECJ, to examine possible ways of reducing the length of such delays (see (1998) O.J. C221/18).
17. One must be sceptical about the likelihood of an appropriate fast-track system being discovered; see the House of Lords Select Committee on the European Communities, Brussels II: The Draft Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters (Session 1997–98,5th Report), esp. at pp.19–20 and 24.
18. A partial answer to the question was given by Beaumont, “A United Kingdom Perspective on the Proposed Hague Judgments Convention” (1998) XXIV Brooklyn J.Int.L. 75–109 at n.13, for the purpose of the Hague Judgments Convention negotiations which are due to conclude in 2000. Whatever the legal analysis it seems that it would be politically inept for the Commission at the last stages of the negotiations to try to assert a new Community competence to negotiate at The Hague on behalf of the 12.
19. See Beaumont, idem, n.23.
20. It is recognised that an external Community competence can be implied from the express provisions of the EC Treaty. In particular, “whenever Community law has created for the institutions of the Community powers within its internal system for the purpose of attaining a specific objective, the Community is empowered to enter into the international commitments necessary for attainment of that objective even in the absence of an express provision to that effect”. Opinion 2/94 [1996] E.C.R. I-1759, 1787. However, the objective of Art.65 EC is to take measures in the field of judicial co-operation in civil matters which are “necessary for the proper functioning of the internal market”. The phrase “internal market” points towards internal measures as the logical route to achieve this objective. External treaties on private international law, particularly at the Hague Conference on Private International Law, are likely to regulate things which go well beyond the proper functioning of the community's internal market.
21. See Council Resolution of 18 Dec. 1997 on the justice and home affairs priorities up to the entry into force of the Treaty of Amsterdam (1998) O J. CI 1/1,2. See also JUSTCIV 59, Council of the European Union, 9755/98.