Thursday, January 15, 2015

LEGISLATION CHANGES THAT MAY CAUSE SOME HICKUPS -
Part I
In accordance to art. 81 of the EU-Reglement 2015/2012 from the
Parliament and Council of 12.12.12. - which entered into force in
Spain on 10.01.2015 - regarding the atribution of judicial compentence,
the recognition and execution of court sentences in civil and commercial
matters, no longer requires an 'exequatur' from the original court in order
to obtain executional force, better said, to be enforced, in the other
EU-Member State.

An exequatur is a legal document issued by a sovereign authority
allowing a right to be enforced in the authority's domain of competence.
The word is a form of the Latin verb exequi, and means let it be executed
in Latin. (1)

EU-Reglement 2015/2012 attributes executorial force to all court
sentences pronounced in each and all EU-Member State countries.

Ok! That's good news, because national advocates/barristers no longer
need to address the original court in the other country, read in an other
language and under appliance of different procedural law, in order to
request the exequatur previous to starting up the executoral, read
enforcement, proceedings in their home country court and in accordance
to their own national procedural laws.
Having said that, it is, to say the least, amazing; because the 3 national
procedural law regimes in which we assist our clients, are in no way
compatible. And it is, above all the procedure that leads to a correct and
just sentence. Not every enforceable sentence is just or provides Justice. 
The Dutch, Portuguese and Spanish both material as well as formal
(procedural) legislation in very little to nothing coincide, with regard to
the different type of procedures, different type of courts, and different
type of litigation proceedings. Inmagine the differences in the
28 EU Member States.
Especially when one realizes that, for instance in Spain, exist Courts
(Juzgados de Paz) whose Judges, do not even require to have a law
degree, nor any special other education for that matter. These Judges
are appointed by the local muncipal councils, or better said, by
dominating municipal political party(ies).
The implementation of changes as foreseen since 2013 to the Ley
del Poder Judicial, and the spanish procedural law (Ley de
Enjuiciamiento Civil) have not all gone through Parliament yet, 
which is foreseen to take place before the summer recess.
Subsequent adoption and implementation by the local governments,
that is; 19 Autonomous communities and cities will than take the
necessary time.

While both in The Netherlands and Portugal most Courts fit in a
layered system of courts; Courts of First Instance; Second Instance;
and Cassation, apart from certain specialized Courts, in Spain it is
virtually impossible to find the right tree in the forrest of Courts
of different flavours, types of procedures and their respective
Recourse Courts etc. in each of the Autonomic Communities and
cities,which, apart from implementing Spanish national law, also
have their own legislative organs.
 
Apart from these formal aspects, there is the inmense problem of
proper translation of judicial terms. As only an advocate/barrister
educated in both of the applicable legal systems, will be able to
correctly interprete the factual sense of a certain legal term from
one procedural system to the fit in the other.
And that is without taking into account the substantial differences
between the continental law systems, with a common basis on
Roman Law and the Brittish Anglo-Saxon system, with, amongst
other elements, English Common Law and Jurisprudence.
What happens to those Court sentences from an EU Member -
State that allowed the application of material law from a Non
EU Member State on a case to be enforced not allowed in the
Member State of enforcement ?
 
Or when the original Court decision's ruling is based on national
complementary local customs of a (third) country, which might
be morally unacceptable in the EU-Member State of enforcement?

What about the interpretation of procedural terms like 'due dilligence'
which are certainly different in the many different EU Member - 
State countries.
Attributing executional force of all Court Sentences in either of 
the EU Member-States, to all civil and commercial court sentences
is likely to bring about - let's hope I`m wrong - more confussion
and injustice than the intended unification of JUSTICE.
(To be continued)
Mevr. mr. drª Marian Aletta Does
Abogada española - advogada portuguesa - dutch lawyer
Disclaimer: No rights what so ever can be obtained from this article.
                   Please contact your advocate, lawyer, or barrister.
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