Anna Zielińska, Katarzyna Szychowska, interviews

Tadeusz Zwiefka: We must build a European legal culture

Katarzyna Szychowska: Article 81 of the Treaty on the Functioning of the European Union, establishing the legal foundation for adopting EU legislation in the area of judicial cooperation in civil and commercial matters, has been in force since 1 December 2009. It streamlines the system in force since the effective date of the Treaty of Amsterdam and also vests the European Parliament with broader authority in this area. Now laws in this area, except for legislation concerning family law, are adopted in the “ordinary legislative procedure,” or what used to known as the “co-decision” procedure. How has this affected the work of the European Parliament?

Tadeusz Zwiefka: Entry into force of the Treaty of Lisbon is an extremely important date in terms of the role of the European Parliament, as a democratic, directly elected branch of European authority, in the process of establishing European law. Until then, the Parliament participated in this process in various ways, sometimes co-deciding, but sometimes only providing an opinion. The Treaty of Lisbon has changed this situation, and guarantees the authority of the European Parliament throughout nearly the entire legislative process at a level equal to that of the Council of the European Union.

If we focus just on civil and commercial law, it is still hard at this point to assess the functioning of the Parliament under the new structure. Legislative initiatives in this respect will begin in the Parliament at the end of this year.

However, we have also taken up this topic in the Parliament, which is authorised to initiate its work in the form of a report on its own initiative. A report does not in itself carry any legal effects, but conveys the opinion of the Parliament on a given matter. Both the European Commission and the Council of the European Union try to participate directly in sessions of the parliamentary committees, and various types of topical groups, including when they are addressed to parliamentary initiatives. This allows them to canvass the views of the Parliament prior to the start of the actual legislative process, conduct discussions and exchange views, or even suggest solutions.

Anna Zielińska: Judicial cooperation in civil and commercial matters is a broad phrase. It covers elements of civil law—civil procedure, private international law—and elements of family law, in other words, fields of law most strongly shaped by legal tradition, custom (such as family law) and established judicial practice (civil procedure). In your view, what is the significance of vesting the European Parliament with authority in these fields?

I think it is extremely important. The Parliament represents the citizens of the Union and emanates from the society. Here there is a possibility to directly implement the expectations and solve the problems of EU residents.

In recent years the mobility of EU citizens has increased rapidly and reached a level never before encountered in history. This mobility has many dimensions. It may be connected to seeking work, or doing business, or marriage between citizens of different countries.

This means that cross-border issues in the field of civil and commercial law will arise, affecting an ever-broader group of persons—natural and legal. The interests of these persons deserve special attention, and it seems to me that the European Parliament is tailored for that role.

K.S.: European legislation in the field of civil and commercial law, such as the Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, or Regulation 1346/2000 on insolvency proceedings, are fairly technical acts. Is it possible to conduct a substantive parliamentary debate on topics like this in the European Parliament?

I believe that the parliamentary forum is better for conducting such debates than the bureaucratic forum of the Commission, regardless of the level of complexity of the issues involved. Consider my report on the review of the Brussels I Regulation. This is a report from a parliamentary initiative and contains the opinion of the Parliament in response to the green paper concerning the review of this regulation prepared by the European Commission.

We discussed this report not only among ourselves. We organised sessions with numerous experts, including scholars as well as practitioners. The final version of the report was not prepared until after this exchange of views, and was then subject to consideration by fellow Euro MPs. The result is that we adopted a document that is important for the European Commission as it works on its own legislative proposal.

A.Z.: You are referring to the resolution of the European Parliament adopted on 7 September 2010 on implementation and review of the Brussels I Regulation. You served as the lead author for the Committee on Legal Affairs of the European Parliament, which drafted the resolution. What are your observations concerning this work by the committee?

I should indicate first that reviews of the functioning of a given legal act, which are provided for in EU law, are entirely necessary. Over the years that Brussels I has been in force, the legal realities have changed, as have the realities of the functioning of the European Union as well as our daily life. These changes require that we revisit the existing solutions.

The most important experience in working on the review of Brussels I was the confrontation between two highly divergent positions, from the European Commission, calling for far-reaching changes, and the more conservative position of the Council. This concerns, for example, the issue of the exequatur procedure [under which a national court authorises enforcement of a foreign judgment]. While we agree with the Commission that the goal is to simplify this area of civil procedure, I take the view that we are only at a certain stage of development and the legislation should be adapted to that. Yes, we should change the law, but within reason.

We are still building a European legal culture. We can hardly even call it that, because it is just developing. There are still too many differences among the laws in force in the various member states, too much incomprehension, and too weak judicial cooperation. It will take better communication, and joint training for judicial personnel, in order to reach a place where a ruling issued by a court in one member state will be understandable for a court in another member state and capable of being quickly enforced there. That is what we are trying to achieve. For now, however, we should maintain some minimal standards of review, and here we differ from the Commission’s approach.

A.Z.: The parliamentary committee very thoroughly analysed the issue of exequatur. Were other issues related to implementation of the regulation, raised by the Commission in the green paper, equally controversial?

There were two such issues. First, forum shopping, or seeking the court where the litigant expects to obtain the most favourable ruling. This problem very often arises in defamation cases. Finding the balance between the interests of the plaintiff and protection of the defendant is very difficult, but that is no reason to remove this issue from the Brussels I Regulation, which is what we were expected to do. On one hand we face very clearly stated expectations, particularly from publishers and various types of media, and on the other hand we must watch out for the interests of the plaintiff. I believe that this issue will come back and be the subject of extended debate before it is possible to find a satisfactory solution assuring balanced protection of all the interests that come into play.

The other issue is “torpedo actions,” that is, filing a claim before an improper court and blocking consideration of the case by the proper court because of the lis pendens doctrine. This is a trick to prolong the whole proceeding. The issue stirs heated discussions and disputes.

K.S.: The parliamentary resolution includes proposed solutions that represent a departure from the position adopted by the European Court of Justice in some of its rulings, for example in the Gasser case, which provides grounds for filing torpedo actions, or in the Owusu case, which was heavily criticised in Anglo-Saxon countries. What is more, in the explanatory statement to the motion for the resolution, you wrote, “The quality of the case-law of the Court of Justice is also viewed as uneven.” The resolution itself even calls for establishment of a special chamber within the Court of Justice that would handle references for preliminary rulings concerning conflict of laws. There is an undercurrent of criticism here of the decisions of the ECJ.

Rulings by the ECJ are not subject to dispute. However, as I stressed numerous times during the sessions of the Committee on Legal Affairs, as MPs we may dispute the law on the basis of which the judgments are issued.

Private international law is a very complex field, and when we are dealing with such complicated issues we need to be extremely cautious. Creating a separate chamber of the ECJ would thus be a good solution, particularly considering that there will be more and more references for preliminary rulings in this field. I am afraid, however, that at this time it will be hard to achieve.

K.S.: In the debate in the European Parliament, do you sense that there is a battle between legal cultures and judicial systems, particularly common law versus the Continental systems?

When I was studying law—which was a pretty long time ago—the differences between the common law system and Continental law seemed vast. In the current work of the European Parliament there are generally no disputes between the heirs of these two traditions. Of course, there are differences, but we are focused more on the possibility of finding a common solution than on the existing differences, which are sometimes overstated.

A.Z.: But the linguistic problems are real. All legal acts and almost all documents are accessible in all of the official languages of the EU, but the quality of the translations differs. If we take the example of the Stockholm programme and the issue of exequatur,which we have just been discussing, in the Polish version of the text elimination of exequatur is defined as elimination of “interim” measures, which is clearly a legal error because the point has to do with different legal stages, in other words, “intermediary” measures. Carelessness in the use of words in legal acts makes the documents that will be relied on by judges and lawyers unreliable.

Unfortunately problems with translations occur often. Firstly, there are not enough translators. Secondly, the translations are of mixed quality. Nonetheless, at the stage of adopting the final version of legal acts, we do strive to make every word of each language version mean the same thing.

The matter looks completely different when it comes to actual judicial practice and exchange of pleadings between parties and courts—hence the idea to limit to a minimum the volume of documents that must be exchanged in the course of judicial cooperation, and not to translate the entire documentation, but only the parts that are essential, for example to enforce a foreign ruling.

The requirement for translation into all languages of the Union often prolongs certain procedures, for example at the ECJ. The time required to wait for a ruling is determined by the time it takes to translate the pleadings or judgments. We will not depart from that, however. In the foreseeable future, no member state will agree to limit the number of official languages.

K.S.: What steps may be taken in order to raise legal awareness within the European Union?

The European legal culture should be built simultaneously on two levels, among experts or practitioners and among laypeople. The Stockholm programme places great emphasis on common instructional programmes at law schools in all EU member states, and on joint training, that is, cooperation among practitioners, organising various types of courses and conferences, plus the functionality of e-justice, the Community legal portal. The goal is not for a judge in one member state to know several legal systems, which is not feasible, but for judges residing and hearing cases anywhere to look at the same issue in the same way, at least when it comes to enforcement of rulings issued in another member state. So we must start with training.