European civil procedure in a comparative and transnational perspectives

Struttura insegnamento e programma

Edizione attiva
Responsabile
Lezioni: 40 ore
Docente: Henke Albert
Programma
Outline of the Course
The Jean Monnet Module on European Civil Procedure in a Comparative and Transnational Perspective is designed to acquaint students with a comprehensive view of the principles, laws, rules and praxis of the emerging field of European Civil Procedure, analyzed in a comparative and transnational perspective. The area of European Civil Procedure can be considered a relatively new topic in the field of EU studies and of civil procedure. Traditionally, civil procedure has always fallen within the exclusive competence of Member States. However, in the recent decades, both the EU legislation and the case law of the Court of Justice of European Union and of the European Court of Human Rights have increasingly interfered in the field, triggering a rethinking of traditional institutions, principles and rules and laying the foundations for a new body of European Civil Procedure. In order to provide all the participants with a systematic and comprehensive approach to the different issues dealt with, the Module will be articulated into three different parts, taught over three years. The first year has focused on Comparative Civil Procedure; the second year will focus on European Civil Procedure, while the third year will deal with Transnational Litigation (i.e. the new field of EU Civil Procedure into a global and transnational perspective).
The course held in the academic year 2016 - 2017 (on European Civil Procedure) will focus on the emerging body of ECP, with an analysis, on one side, of the economic and legal basis for 'Europeanisation' of Civil Procedure; on the other side, on the determination-conflicts of jurisdiction and enforcement of judicial decisions within the European judiciary space. Special sections will be dedicated to: a) fundamental procedural rights as codified in the ECHR and developed through the ECHR's and CJEU's case law; b) special regulations and relevant directives in the field of European Civil Procedure; c) the efforts undertaken by international research bodies (such as UNIDROIT and ELI) to develop minimum standards of civil procedure in the EU.

Outline of the Course's Topics
The lectures will provide students with basic information and knowledge about fundamental principles, legislative regimes, scholars' debates, case law on the following topics:

· European Union and Civil Procedure: policy considerations underlying the progressive harmonization of principles and rules in this field (the impact of the disparities among Member States' procedural systems on the functioning of the single market, the enjoyment of the four freedoms, the effectiveness of EU rights, mutual trust, predictability and access to justice)

· The legal basis for the 'Europeanisation' of civil procedure (the Treaty of Maastricht (1992); art. 65 of the Treaty of Amsterdam (1999); the Tampere Conclusions (1999); artt. 67, 81 and 114 of the Lisbon Treaty (2009); artt. 47 and 51 of the Charter of Fundamental Rights of the EU; art. 6 of the ECHR) and the pro and cons of the different approaches adopted (the 'optional instruments' approach; the sector-specific directives and the piecemeal horizontal directives; the common minimum standards)

· Access to justice in Europe after the Lisbon Treaty; legal aid e deposits (Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes; Airey v. Ireland).

· Determination of Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (Council Regulation (EC) N. 44/2001 and Recast N. 1215/2012). Goals and general overview

· A European concept of Lis pendens (Zelger v. Salinitri; Gubisch; Tatry v. Maciej Rataj; Maersk; Danvaern; Druout; Purrucher II) and Res judicata (Hoffmann v. Krieg; Koebler; Kuehne & Heitz; Kapferer; Kempter; Lucchini; Olimpiclub; Gothaer v. Samkip)

· Circulation of interim measures of protection (C.H.W. v. G.J.H.; De Cavel v. De Cavel; Mund & Fester; Denilauler; Klomps v. Michel; Reichert v. Dresdner Bank; Van Uden v. Deco Line; Mietz v. Internship Yachting; Klomps v. Michel; Capelloni and Aquilini v. Pelkmans; Brennero v. Wendel; Purrucker I; Italian Leather; St. Paul Dairy; Atlanta; Commission v. Spain; Dac Spa).

· EU Principles on Recognition and Enforcement of Judgments in Civil and Commercial Matters according to the case law of the European Court of Justice

· Fundamental Procedural Rights as Codified in the ECHR and Developed through the ECHR's and CJEU's Case Law. General overview. Fair trial and fundamental procedural rights (Stauder; Golder; Dattel; Krombach; Hiro Balani v. Spain; Van de Hurk v. The Netherlands; Kosser v. France; Dombo v. Beheer; Hornsby v. Greece; Annoni v. France; Steck-Risch v. Liechtenstein; Pescador Valero v. Spain; Higgins v. France; Rembli v. France; Lavents v. Latvia; De Cubber v. Belgium; Procola v. Luxembourg; Sarcilor Lormines v. France; Osman v. United Kingdom; Gambazzi; Denilauler).

· Adversary principle (Hendrikman v. Feyen v. Magenta Druck, Krombach; Gambazzi). Balancing right of defense, effectiveness and legal certainty in respect of time limit's relief (Lancray v. Peters; Minalmet v. Brandeis; Leffler v. Berlin Chemie; Apostolides v. Orams; Debaecker v. Bouwmann).

· The notion of decision and the duty to give reasons (Solo Kleinmotoren). Procedural public policy (Pellegrini; Krombach).

· Special Regulations in the field of European Civil Procedure: Cross-Border Service of Documents and Cross-Borders Taking of Evidence.

· European Enforcement Order for Uncontested claims (Dombo Beheer v. The Netherlands; Akxo Nobel v. Commission), European Order for Payment and European Small Claims.

· European Account Preservation Order.

· Consumers' protection in the EU: from the 1998 Green Paper on Consumer Acces to Justice to the European Consumer Agenda (Europe 2020) and the Consumer Programme 2014-2020 (the 2006/2004 Regulation on Consumer Protection Co-operation; the Directive 98/27/EC (lately modified in the Directive 2009/22/EC) on injunctions for the protection of consumer interests; 2008/52/EC ADR Directive; the 2013 Commission Recommendation on on common principles for injunctive and compensatory collective redress mechanisms)

· Arbitration and EU law: a) the application of EU law by arbitrators; b) arbitration and the preliminary ruling before the EUCJ; c) arbitration and European public policy (ex officio application and state court's revision of the awards; d) the arbitration exception in the Brussels Regulations (I and I bis)

· Arbitration and the ECHR (X v. German Federal Republic; Deweer; R. v. Switzerland; bramelid and Malstroem v. Sweden; Lithgow)

· Private enforcement of EU competition law (from the 2005 Green Paper on damages actions for breach of the EC Antitrust Rules to the 2008 White Paper on Damages actions for breach of the EC antitrust rules and the Directive 2014/104/EU of the European Parliament and of the Council on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union)

· Enforcement of Intellectual Property Rights in Europe (from the Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights to the Unified Patent Court)

· Towards common minimum standards for civil procedure in the EU. The joint European Law Institute (ELI) and UNIDROIT project ("From Transnational Principles to European Rules of Civil Procedure").

Teaching methodology
The course will combine frontal lessons and an interactive teaching methodology (based on the active participation of the students through individual contributions or teamwork in the form of presentations, summaries or prepared discussions, as well as practical sessions with mock trials). Advance reading and regular preparation are necessary prerequisite for the successful participation in the course.
Students will also be involved in the creation and constant update of a website (www.ecp.unimi.it) with cases and materials related to the field of European Civil Procedure, to create an open educational resource and also to promote scientific partnerships and joint ventures with other Universities, Centers of Research and Institutions active in the field.
Throughout the course a number of seminars will be held by external Italian and foreign academics and professionals, who are internationally renowned specialists in the field.
During the course, a visit will be organized to attend a hearing of the Court of Justice of the European Union.

Attendance to the course
The attendance to the course is compulsory. Only students who attend at least 75% of the course are admitted to take the final exam.

Exam and final mark
The final mark will consist in an overall assessment of the activities carried out by each student throughout the course. Those who do not accept that assessment can register for an oral colloquium during the official exam sessions.

Moot courts and internships
The attendance to the course is positively assessed in light of the students' recruitment process for the different legal competitions sponsored by our University (the Wilelm C. Vis Moot Court in Vienna; the ICC Mediation Competition in Paris; the Philip C. Jessup International Law Moot Court Competition in Washington -), as well as for the professional internships in European law firms, entities and organizations within the Erasmus Placement Program.

Suggested readings
Lectures will be based on specific reading materials distributed during the class or uploaded prior to each lesson.
Periodo
Secondo semestre
Periodo
Secondo semestre
Modalità di valutazione
Esame
Giudizio di valutazione
voto verbalizzato in trentesimi
Docente/i
Ricevimento:
Giovedì ore 11.00
Università degli Studi di Milano - Istituto di Diritto Processuale Civile - 4to piano - Via Festa del Perdono 3 - 20122 Milano