The definitions in this glossary
are given to help you understand the expressions used on different
pages of the European Judicial Network website. They are not authoritative
legal definitions.
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Applicable law
Applicable law is a specific concept of private
international law and refers to the national law that
governs a given question of law in an international context.
A court hearing an action does not necessarily apply its national
law to settle the dispute. Where a legal relationship between private
individuals has an international dimension (for example where they
are of different nationalities or do not live in the same country),
the laws of several different countries might be applied. The law
that is actually applicable is determined by the rules of conflict
of laws. The Convention on the law applicable to contractual obligations,
signed in Rome in 1980 under the auspices of the European Economic
Community, unifies the Member States' conflict rules in this field.
Authentic instrument
An authentic instrument is a document recording a legal
act or fact whose authenticity is certified by a public authority.
Certain authentic instruments are enforceable.
An example is the deed for the sale of real property, prepared by
a notary or solicitor. Authentic instruments that are enforceable
in a Member State may be enforced in another Member State in accordance
with a simplified procedure provided for by the Brussels
I Regulation.
Brussells I
The expression Brussels I is often used to refer to Council
Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and
the recognition and enforcement of judgments in civil and commercial
matters. This instrument governs the conferment of international
jurisdiction as between the Member States of the European Union
and the conditions and procedures for recognition
and enforcement of
judgments given in the Member States, authentic
instruments and court settlements. It replaced the Brussels
I Convention of 27 September 1968 as regards all Member States except
Denmark.
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Brussels II
The expression Brussels II is often used to refer to Council
Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and
the recognition and enforcement of judgments in matrimonial matters
and in matters of parental responsibility for the children of both
spouses. The Regulation lays down rules governing international
jurisdiction and the recognition
and enforcement of
judgments in cases concerning divorce, separation and annulment
of marriage and judgments concerning parental responsibility for
the children of both spouses given in connection with them. It replaced
the Brussels II Convention of 28 May 1998 as regards all Member
States except Denmark.
Case-law
Case-law is used internationally to refer to rules of
law flowing from a set of convergent decisions of the courts.
The case-law of the Court of Justice of the European Communities
is particularly rich in decisions on the interpretation of the Community
treaties, directives and regulations. It is a source of Community
law.
Commission Communication
A Communication is a policy document with no mandatory
authority. The Commission takes the initiative of publishing
a Communication when it wishes to set out its own thinking on a
topical issue. A Communication has no legal effect.
Commission Recommendation
In Community law, a Recommendation is a legal instrument
that encourages those to whom it is addressed to act in a particular
way without being binding on them. A recommendation enables
the Commission (or the Council) to establish non-binding rules for
the Member States or, in certain cases, Union citizens.
Community law
Community law means the set of rules adopted by the European
Community. Community law consists mainly of the Treaties,
the instruments adopted by the institutions under the Treaties,
such as Regulations
and Directives. The case-law
of the Court of Justice is also one of the sources of Community
law. Community law is distinguished from public international law
in a number of respects (see public
international law).
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Conflict of jurisdiction
See international
jurisdiction.
Conflict of laws
See applicable law.
Contractual obligations
Where two people conclude a contract, they generally enter into
a two-way obligation - one undertakes to provide the other with
goods or a service and the other undertakes to pay the price. Each
of the parties to the contract is also bound by an obligation towards
the other to compensate him if the contract is not performed properly
or not performed at all.
Convention
Conventions can also be known as treaties or agreements
and are the most widely-used instruments of public
international law. A convention is an agreement between
several States and/or international organisations laying down the
law in relations between them and between their respective nationals.
Conventions can be bilateral, i.e. concluded between two States.
This used to be the usual situation before international organisations
were set up and provided a forum for concluding multilateral conventions,
concluded between more than two States. Many multilateral conventions
have been negotiated under the auspices of international organisations
such as the Hague Conference on Private International Law and the
Council of Europe. The Brussels
I Convention was concluded between the Member States of the
European Economic Community in 1968.
The European Community regularly concludes conventions with one
or more non-member countries on behalf of the Member States. Once
a convention has been signed by the representatives of the governments
concerned, it must be ratified or approved by the relevant national
authorities, which usually means the national parliaments. In certain
States conventions that have been ratified have direct effects in
the domestic legal order. In other States, conventions that have
been ratified have effect only if they have been transposed into
the national legal order, in the form of a statute for example.
Conventions are instruments of public international law and are
distinguished from instruments of Community law in the following
respects:
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- In public international law, problems of interpretation raised
by conventions can be settled in certain cases by national courts.
As a rule, there is no specific system of courts to guarantee
uniformity in the interpretation and therefore in the application
of conventions. In Community law the Court of Justice sees to
it that there is a uniform interpretation.
- In public international law, there is no general and systematic
system of courts that can penalise a State that fails to comply
with its obligations under an international convention. In Community
law the Court of Justice can declare that there is an infringement
and can go so far as to order penalty payments.
Decision
In Community law, a decision is a legislative instrument
that is binding in its entirety on all those to whom it is addressed.
A decision may be adopted under the EC Treaty either by
the European Parliament and the Council or by the Council or by
the Commission. Decisions are rarely used in the field of judicial
cooperation in civil matters. The European Judicial Network in Civil
Matters was established by a Council Decision.
Directive
In Community law a directive is a legislative instrument
that is binding on the Member States to whom it is addressed as
regards the result to be attained but leaves them free to determine
the form and methods. Directives may be adopted under the
EC Treaty either by the European Parliament and the Council or by
the Council or by the Commission. The Community institutions use
Regulations more often
than Directives in judicial cooperation in civil matters. Once adopted,
Community Directives still have to be transposed by each of the
Member States, that is to say they must be implemented by national
law.
Enforceability
Enforceability is a concept of civil procedure. Judgments
are enforceable in that they can be enforced
with the aid, if necessary, of the forces of law and order.
Judgments and authentic instruments, that are certified enforceable,
are the main documents that are enforceable. Enforceability is confined
to the State of the court which gave the judgment. To be enforceable
abroad, the judgment must be declared enforceable (by what is known
in some countries as the exequatur procedure)
or in the UK and in Ireland be registered.
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Enforcement
The enforcement of a judgment consists of securing compliance
with it, if necessary by means of coercion as allowed by the law,
including the intervention of the forces of law and order.
If you win your case in the courts but the other side does not spontaneously
comply with the court's order, you can go to the police or a bailiff,
depending on the situation, to have the judgment carried out. Enforcement
concerns court judgments, arbitral awards, authentic instruments
and court settlements that are certified enforceable. It can take
the form of the attachment of the debtor's assets or the eviction
of a tenant, for instance. Basically a judgment can be enforced
only in the State where it was given. Enforcement abroad requires
the exequatur or registration
procedure.
Exequatur
Exequatur, is a concept specific to the private international
law and refers to the decision by a court authorising the enforcement
in that country of a judgment, arbitral award, authentic
instruments or court settlement given abroad.
Abolition of the exequatur procedure between Member States for all
judgments in civil and commercial matters is the ultimate objective
of the mutual recognition programme adopted by the Commission and
the Council in December 2000.
Forum
The forum is a specific concept of private international
law. It means the courts of a given State in which an action is
brought. The concept of forum underlies the concepts of lex
fori and forum-shopping.
Forum-shopping
Forum-shopping is a specific concept of private international
law. A person who takes the initiative of bringing a court action
may be tempted to choose his court on the basis of the law applied
there. A person starting an action might be tempted to
choose a forum not because it
is the most appropriate forum but because the conflict
of laws rules that it applies will prompt the application of
the law that he or she prefers.
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Green Paper (European Commission)
A Green Paper is a consultation document published by
the Commission on a specific topic to prompt reactions from interested
circles on a variety of questions. The Commission's aim
in publishing a Green Paper is to better determine the future orientations
of its policy on the question.
International jurisdiction
International jurisdiction is a specific concept of private
international law. It refers to the fact that the courts
of a given country will be the most appropriate to hear and determine
a case that has an international dimension. A dispute has
an international dimension where, for example, the parties have
different nationalities or are not resident in the same country.
In such a situation the courts of several countries might have jurisdiction
in the case, and we have what is known as a conflict of jurisdiction.
The rules of international jurisdiction lay down criteria for determining
the country whose courts will have jurisdiction in the case.
Lex causae
The lex causae is a specific concept of private international
law and refers to the law governing the substance of the case, designated
by the rules of conflict of laws. See applicable
law.
Lex fori
The lex fori is a specific concept of private international
law and refers to the law of the court in which the action is brought.
Where an action is brought in a court and has an international
dimension, the court must consider the law
applicable to the case. In certain circumstances, the lex fori
will apply. Traditionally the lex fori governs questions of procedure,
regardless of the lex causae.
Lex loci delicti
The lex loci delicti is a specific concept of private
international law and refers to the law of the country where, in
terms of non-contractual obligations, the harmful event occurred.
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Non-contractual obligations
There is a non-contractual obligation where a person who is responsible
for loss sustained by another person is required to compensate the
victim, in cases not linked to the performance of a contract, such
as traffic accidents, environmental damage or defamation.
Private international law
Private international law, as used in its broad sense,
means the set of legal rules governing international relations between
private individuals. The expression private international
law does not have the same meaning in all the Member States. In
German and Portuguese law, for example, it refers solely to the
rules on conflict of laws (see applicable
law), whereas in other systems it includes the rules on international
jurisdiction and the recognition
and enforcement of
foreign judgments. All these rules relating to the applicable law,
international jurisdiction and the recognition and enforcement of
foreign judgments provide solutions to the difficulties that can
flow from the fact that a single case can involve several separate
legal systems. An example might be the case of a married couple
of mixed nationality who are thinking of divorcing: which court
will have jurisdiction to order the divorce, and what law will it
apply? Another example would be where an accident occurs in a Member
State and prompts environmental pollution that causes loss in several
other Member States. Which State's courts should the victims go
to? And which law will the courts apply? The sources of the rules
of private international law are the legislation, case-law and academic
writings in each of the States. Despite the name, private international
law is a creature of national law alone. Certain of these national
rules may have been standardised in international conventions and
possibly also in Community instruments. Standardisation makes it
possible to avoid situations where the courts of two States claim
jurisdiction under their national rules of private international
law and give conflicting judgments in the same case.
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Public international law
Public international law means the set of legal rules
governing international relations between public bodies such as
States and international organisations. Conventions
and uniform laws are
common instruments of public international law.
Recognition
Recognition is a specific concept of private international
law. Recognising a judgment given in one Member State in another
means agreeing that it may have effect there. Judgments
basically have effect only in the State where they are given. Recognition
in another State is possible only if the law of the other State
so allows or if an international convention or a Community instrument
provides for it. Under the Brussels
II Regulation, for instance, which lays down the conditions
in which judgments in matrimonial matters can be recognised, a divorce
decision in a Member State may be used to modify the marriage registers
in another Member State.
Regulation
In Community law, a Regulation is an instrument of general
scope that is binding in its entirety and directly applicable in
all Member States. Regulations can be adopted under the
EC Treaty by the European Parliament and the Council or by the Council
or by the Commission. Regulations are often used in the field of
judicial cooperation in civil matters. They are directly applicable,
so they require no transposal into the Member States' domestic law
and directly confer rights or impose obligations.
Rome I
Rome I is the expression often used for the Convention
of 1980 on the law
applicable to contractual
obligations, signed under the auspices of the European
Economic Community.
Rome II
Rome II is the expression often used for the draft Community
instrument on the law
applicable to non-contractual
obligations.
Tortious or delictual obligations
See non-contractual
obligations
Uniform law
Uniform laws are instruments prepared jointly by several
States and/or international organisations to help States wishing
to reform and modernise their legislation. International
organisations such as UNCITRAL and UNIDROIT (see International
law homepage) draft uniform laws.
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