Explanatory Memorandum to COM(2011)276 - Mutual recognition of protection measures in civil matters - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)276 - Mutual recognition of protection measures in civil matters. |
|---|---|
| source | COM(2011)276  |
| date | 18-05-2011 |
This proposal is part of a legislative package which aims at strengthening the rights of victims in the EU and which also includes the following other elements: a communication on the strengthening of victims' rights in the EU and a directive establishing minimum standards on the rights, support and protection of victims of crime. This proposal, dealing with protection orders taken in civil matters, aims at complementing a Member States' initiative of september 2009 for a Directive on the European Protection Order[1], which will ensure the mutual recognition of protection measures taken in criminal matters.
The European Union has set itself the objective of maintaining and developing an area of freedom, security and justice, the cornerstone of which is the principle of mutual recognition of judgments and other decisions of judicial authorities within the Union.
The Stockholm Programme (2010-2014)[2] and the Commission's action plan to implement it, recognise the need for further action to place the needs of victims of crime at the centre of our justice systems. They place victims high on the EU agenda and firmly establish the need and intention to create an integrated and co-ordinated approach to victims, in line with the October 2009 JHA Council Conclusions[3].
The European Union has already acted on the rights of victims in criminal proceedings through Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings. Whilst improvements have been achieved on victims' rights, the objectives of the Council Framework decision have not been fully realised.
The European Parliament has also called upon the Council to adopt a comprehensive legal framework offering victims of crime the widest protection[4]. In its resolution of 26 November 2009[5] on the elimination of violence against women the European Parliament calls on the Member States to improve their national laws and policies to combat all forms of violence against women and to act in order to tackle the causes of violence against women, not least by employing preventive measures and calls on the Union to guarantee the right to assistance, protection and support for all victims of violence.
In a common area of freedom, security and justice, victims of (for example, domestic) violence or persons whose physical and/or psychological integrity or liberty is at risk and who benefit from a protection measure taken in one Member State should benefit from the same level of protection in other Member States should they move or travel, without going through expensive and time consuming procedures. Such action also replies to the Commission's call to further dismantle the obstacles to citizens' rights, set out in its Citizenship Report" of 27 October 2010[6].
In September 2009, 12 Member States put forward a proposal for a Directive of the European Parliament and of the Council on the European Protection Order[7]. During the negotiations, it appeared that the mechanisms used in this instrument, based on Article 82 TFUE dealing with mutual recognition in criminal matters, is not compatible with the ambitious standard of mutual recognition already reached for civil matters, covered by Article 81 TFUE. The present proposal therefore aims at completing a legal instrument on the mutual recognition of protection measures taken in criminal matters to ensure that all protection measures taken in a Member State benefit from an efficient mechanism to ensure their free circulation throughout the EU.
Contents
- 2. CONSULTATION AND IMPACT ASSESSMENT
- 3. LEGAL ELEMENTS OF THE PROPOSAL 3.1. Legal basis
- 3.2. Summary of the proposed regulation
- 3.3. Analysis of the most important Articles
- Article 1 - Scope
- Article 2 - Definitions
- Article 3 - Jurisdiction
- Article 4 - Recognition
- Article 5 - Certificate
- Article 8 - Adaptation
- Article 9 - Enforcement of certain protection measures
- Article 10 - Fundamental rights safeguards
- Article 13 - Notice
- 4. Subsidiarity and Proportionality
The need for this proposal applying exclusively to protection orders taken in civil proceedings appeared during the negotiation of the Member States' initiative for a European Protection Order which was accompanied by an Impact Assessment. To consult more specifically on the need for and the modalities of this proposal, the Commission launched additional consultations with Member States, other institutions and experts from different backgrounds.
The Commission first hosted an experts' meeting on 25 May 2010 which confirmed that many Member State have put civil law protection measures in place, the mutual recognition of which should follow the common standards used in civil matters, rather than the more heavy procedures which are common standard in criminal matters.
The European Commission also contracted an external Study to assist with the impact assessment in identifying the needs of victims of crime, which measures could be established to meet these needs and to examine the impacts of any possible options[8]. As part of the preparation process of the Impact Assessment, the Commission held a public consultation from 15 July 2010 to 30 September 2010, open to all members of the public as well as to non-governmental and governmental organisations asking their views on what action the EU should take to improve the situation of victims of crime, including in the field of protection orders.
A further study was contracted to examine options in relation to the specific objective of ensuring that the protection gained through a protection order is not lost when a protected person travels or moves to another Member States[9].
This proposal is based on Article 81(2)(a), (e) and (f) of the Treaty on the Functioning of the European Union. According to Article 81 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.
For these purposes, 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, inter alia, the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases.
To protect victims of violence, in particular domestic violence, stalking or violence against children, the national laws of the Member States provide for the possibility to adopt temporary and preventative measures with a view to protecting a person when a serious risk exists to consider the persons physical and/or psychological integrity or liberty at risk. Protection measures are issued by a judicial or other authority upon request of the person at risk. Many of them are ordered without the person causing the risk being summoned to appear, in particular in case of urgency ("ex parte" procedures). Protection measures consist of, for example, the obligation not to approach the protected person closer than a prescribed distance, or the obligation not to enter certain localities where the protection person resides or that he visits. A specificity of many protection measures is that the public authorities do not actively intervene to ensure their execution: in case of violation of his obligation by the person causing the risk, the person is directly subject to a sanction, often to a criminal sanction.
Due to the increase of free movement more persons are moving or travelling abroad. Consequently, it is extremely important to ensure that such a temporary protection provided in one Member State is maintained when a person travels or moves to another Member State without having to go through time-consuming procedures. Civil judicial cooperation has developed in the context of the creation of an internal market in Europe based on the premise of mutual recognition of judicial and extra-judicial decisions. Such mutual recognition has been gradually improved by lowering the controls with respect to foreign decisions in the Union. This proposal provides for a speedy and efficient mechanism to ensure that the Member State to which the person at risk moves will recognise the protection measure issued by the first Member State without any intermediate formalities. As for other mutual recognition instruments in civil matters, this proposal introduces a standardised certificate which contains all information relevant for the recognition and, where applicable, enforcement. Therefore, a certificate will be issued by the competent authority of the first Member State, either ex-officio or on request of the protected person, who will then contact the competent authorities in the second Member State and provide them with the certificate. The competent authorities of the second Member State will notify the person causing the risk about the geographical extension of the foreign protection measure, the sanctions applicable in case of its violation and, where applicable, ensure its enforcement.
In order to ensure a quick, cheap and efficient mechanism of circulation of protection measures in the European Union, the rationale of 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, repealing Regulation (EC) No 1347/2000 ('Brussels II-bis')[10] and in particlar Articles 41 and 42 thereof, has been followed. Inspiration has been taken also from the Commission's proposal for a recasting of Council Regulation (EC) No 44/2001 ('Brussels I')[11]. The proposal provides for the abolition of intermediate procedures and no grounds for refusal have been proposed, except for the existence of an irreconcilable decision in the Member State of recognition.
Automatic recognition also applies when the Member State of recognition and/or enforcement does not have protection measures in civil matters. This is indeed a fundamental principle of mutual recognition in civil matters: the fact that the Member State where the recognition and/or enforcement are sought does not foresee a measure in its internal law must not affect its obligation to recognise and, where applicable, enforce the measure taken by another Member State. The nature of the authority which has taken the protection measures (civil court, mayor, criminal court) is not decisive with this respect.
The abolition of intermediate procedures will be accompanied by fundamental rights safeguards:
– The authority of the first Member State which will be requested to issue the certificate will have to check that the right to a fair trial, in particular the right of defence, of the person causing the risk has been respected. In case such rights have not been guaranteed, the certificate cannot be issued.
– In case of suspension of withdrawal of the protection measure by the first Member State, the competent authority of the second Member State has, at request of the person causing the risk, to suspend or withdraw its recognition and, when applied, enforcement.
– The competent authorities of both Member States have to bring to the notice of the person causing the risk and to the protected person any information related to the issuing, recognition, possible enforcement and sanctions, suspension or withdrawal of the protection measure.
All these safeguards ensure the fundamental rights and principles recognised in particular by the Charter of Fundamental Rights of the European Union be guaranteed, while the time and costs of the exequatur procedure will be saved.
The proposal does not deal with criminal sanctions put in place by Member States in case of violation of a protection measure. This question will continue to be dealt with by the national law of each Member State.
This proposal is a mutual recognition instrument in civil matters and as such it follows the rationale of existing EU instruments on judicial cooperation in civil and commercial matters, from which it takes broad inspiration. Many articles are similar or equal to the correspondent articles in the mentioned legislation.
Certain protection measures are already covered by Brussels I[12] and Brussels II-bis Regulations, hence it is important to clarify the articulation of the proposal with these regulations.
This Regulation establishes special rules in relation to protection measures. Following a general principal of law, it shall therefore supersede the general rules set out by Brussels I.
The situation is different as regards Regulation Brussels II-bis, the aim of which is to centralise all proceedings relating to a given divorce or legal separation. This proposal must not jeopardise rules governing jurisdiction and the recognition of judgments contained in that specific instrument by offering the possibility to seize the jurisdiction of another Member State as regards the protection measures taken in the context of the ongoing proceedings. For this reasons, all protection measures entering into the scope of Brussels II-bis shall continue to be governed by this instrument. However, the protection measures which do not fall under the application of Brussels II-bis, e.g. protection measures which would concern a couple which has not been married, same sex partners or neighbours, will be covered by this proposal.
Protection measures - The definition of the term protection measure stresses the preventive and temporary nature of such measures, which are taken in a Member State with a view to protecting a person when serious reasons exist to consider the persons' physical and/or psychological integrity or liberty to be at risk. A protection measure may be taken either in ex parte proceedings (without the person causing the risk being summoned to appear) or in proceedings on notice to both parties.
Authority - The definition of the term authority is broad in order to include any authority designated by a Member State as having competence in the matters falling within the scope of this Regulation. Hence, the term includes not only courts and tribunals, but also administrative and other authorities which under the national law of a Member State have competence in the matters falling within the scope of this Regulation.
The rules of jurisdiction should be highly predictable. Therefore, they are founded on the principle that jurisdiction is that of the authorities of the Member State where the person's physical and/or psychological integrity is at risk and where a person needs protection. Although this generally dovetails with the habitual residence of the person who needs protection, it may be not the case, i.e. when the person moves abroad for a determined and relatively short period of time for study reasons, for example.
This Article takes inspiration from other mutual recognition instruments in civil law matters, namely the proposal for recasting Brussels I and Brussels II-bis, namely on the right of access or the return of the child. No intermediate procedures are required: the recognition is automatic.
The certificate is necessary for the person at risk to invoke the protection measure in another Member State. The rationale of Articles 41 and 42 of Brussels II-bis, dealing with decisions on the right of access or the return of the child, has been followed.
The certificate will be issued, ex officio or at the request of the protected person, by the competent authorities of the Member State of origin following the standard form set out in the Annex to this Regulation. Then, it will be up to the party who wishes to invoke the measure in another Member State to provide the competent authorities of that Member State with the issued certificate. The certificate contains all information relevant for the recognition and/or enforcement of the foreign protection measure, in particular a description of the protection measure formulated in such a way as to allow the competent authorities of the second Member State to recognise it and, where applicable, enforce it under its national law. Therefore, neither specific reference to the national law, i.e. Article X of Code Y instead of the explication of the measure, nor to local places, i.e. a specific address instead of a general reference to the place of work or domicile, must be included in the certificate.
The competent authorities of the second Member State may request a transliteration or a translation of the content of the certificate, namely of the description of the measure.
This Article concerns the case where the foreign protection measure is not known under the national law of the second Member State. The competent authority in that Member State will therefore have to adapt, to the extent possible, the protection measure to one known under its own law which has similar effects attached to it and pursue similar aims and interests. Adaptation is indeed a recurrent rule in instruments of mutual recognition in civil matters.
Under national law very few protection measures requires the competent authorities to actively intervene to give effect to them.
In these cases, the competent authority of the Member State of enforcement will need to apply the rules provided under its national law for similar protection measures, without any special procedure being required.
The protection of the fundamental rights of the individual has become an even stronger priority for the EU with the entry into force of the Lisbon Treaty: the EU Charter has become legally binding on the Union and the EU is about to accede to the European Convention of Human Rights (ECHR). When speaking of victims a range of fundamental rights is relevant: human dignity, the right to life, right to the integrity of the person, right to liberty and security, respect for private and family life, protection of personal data, right to property, freedom of movement and residence, equality before the law, the rights of the child, the rights of the elderly, integration of persons with disabilities, and right to an effective remedy and to a fair trial, and finally presumption of innocence and right of defence.
As set out in detail in the impact assessment accompanying this proposal and in accordance with the Union's Strategy for the effective implementation of the Charter of Fundamental Rights of the European Union[13], all elements of the Regulation respect the rights set out in the Charter of Fundamental rights, and, in particular, the right to an effective remedy and the right to a fair trial guaranteed in its Article 47.
The abolition of any intermediate formalities for the recognition and, where applicable, the enforcement in the second Member State of a protection measure taken in the first Member State must be accompanied by fundamental rights safeguards. This article provides a solid safeguard, since the certificate cannot be issued when the right to a fair trial of the person causing the risk have not been guaranteed.
Article 12 – Refusal, suspension or withdrawl of recognition or enforcement
The recognition and where applicable the enforcement of protection measures taken in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum required. In accordance with this principle, only one ground for refusal is proposed. In the interests of the harmonious administration of justice it is necessary to minimise the possibility of irreconcilable decisions. Therefore, the competent authority in the Member State of recognition may, on application by the person causing the risk, refuse the recognition of the protection measure taken by the court of origin if it is irreconcilable with a decision taken in the Member State of recognition.
It is important to ensure that when a protection measure is suspended or withdrawn in the Member State of origin, the competent authority of the Member State of recognition suspends or withdraws the recognition and, where applied, the enforcement of the protection measure. It is the responsibility of the person causing the risk to apply for it. To that end, a standardised application form is annexed to the proposal.
As for other mutual recognition instruments in civil matters, this article provide for a basic harmonisation of minimum standards as regards the necessity to bring to the notice of the person causing the risk and to the protected person any information related to the issuing, recognition, possible enforcement and sanctions, suspension or withdrawal of the protection measure in the first Member State. It also introduces, at paragraph 2, the same obligation for the second Member State. This will ensure the respect of fundamental rights as set out in the Charter of Fundamental Rights of the European Union.
The objective of the proposal cannot be sufficiently achieved by Member States alone, because of the transnational aspects of the issue. It is important to ensure persons do not lose the protection they have been given when they travel or move abroad. The mechanism foreseen in this regulation consisting in the elimination of any intermediate formalities, throught he use of a standardised and multilingual certificate cannot be achieved by the Member States alone. Only legislation at European level can create a level playing field. The proposal therefore complies with the subsidiarity principle.
The proposal also complies with the proportionality principle in that it does not go beyond the minimum required in order to achieve the stated objective at European level and what is necessary for that purpose.