National courts and effective judicial protection: from cooperation to judicial integration in the european union procedure | 2015

Author(s) Joana Rita de Sousa Covelo Abreu
Advisor(s) Alessandra Silveira
Year 2015

Synopsis Effective judicial protection implies that the existing procedural solutions allow judicial concretization of a legal order given rights. Therefore, in the European context, effective judicial protection started to be jurisprudentially densified as a general principle of law (in a interconstitutionality logic, gathering influences of international human rights’ protection instruments, namely ECHR, and of Member-States’ common constitutional traditions), being lately consecrated as a general principle on the text of article 19.º, n.º 1, 2nd paragraph of TEU. With CFREU, it also gained a fundamental right’s status, having its various domains acknowledged in article 47.º of that charter. CFREU’s juridical biding force, recognised by the Lisbon Treaty, isn’t indifferent to the enhancement of this fundamental right’s importance. Principle of Member-States procedural autonomy has particular relevance to the integration process since it is their obligation to create procedural ways to enforce rights given by the Union’s legal order. However, it is up to Member-States to adopt procedural means that, in light of equivalence and effectiveness, allow judicial protection of the rights recognised by the European order. Having in mind the increments made to effective judicial protection’s densification in what concerns European procedural solutions inherent to judicial cooperation in civil and commercial, it was our aim analysing those procedural solutions and, so, testing Portuguese procedural rules called by those into account in order to perceive if European integration was (or was not) densified on those returns to internal juridical orders as Member-States procedural autonomy demands to happen. In this sense, and because effective judicial protection conceptual and fundamental rights proclamation’s construction had here a serious impact, Portuguese civil procedure guiding principles were analysed in order to assess where can be guessed an approach and / or a complementarity relation between national and European procedural solutions. It is from the symbiosis between European and internal normative solutions that a new dynamic reality emerges, set as a plastic regime defined by the action, in an internormativity context. In this sense, it was clear a concrete improvement on the fixation of typical European procedures, optional to national solutions, justifying judicial cooperation in civil and commercial matters’ understanding, in this domain, as a true “judicial integration”. Abstractly, these found solutions determine meaningful evolutions on mutual recognition and on reciprocal trust in justice administration between Member States. This allows identifying that European evolution stage is bolder in this context because it allows that we think European Union Procedure as including procedural dimensions that directly concern functional European courts and that are, by them, daily materialized, especially when those derive from European normative acts. Therefore, even if it was detected that those mechanisms present a somewhat limited application range, which necessarily demotivates their more repeated use, judicial integration stage starts now to be achieved and materialized. Medium or high density credits aren’t dealt in a European procedure, where they could run before a court and that is was aimed to their cross-border recovery; so, it was possible to set the terms in which that procedure could be developed, trying to unravel in which way the new internormativity phenomenon will progress, bearing in mind the economical agents’ demonstrated needs. Litigation resolution on civil and commercial matters was established as one of integration process’ focus. This justifies that European procedural solutions now applicable (either determining true European procedure or being instrumental for those) show the first steps that are being taken to establish a turning point on what judicial cooperation is, so a true judicial integration in the matters under analysis can emerge. This judicial integration isn’t strange to the real judicial decisions’ circulation freedom in civil and commercial matters (now potentiated by exequatur’s full suppression).

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2018-02-08T12:22:39+00:00