Judicial Cooperation and the European Neighborhood Policy

• Author: Jürgen Basedow
• Pages: 1-3

www.reei.org

DOI: 10.17103/reei.36.01

JUDICIAL COOPERATION AND THE EUROPEAN

NEIGHBORHOOD POLICY

Jürgen Basedow*

The Brussels Convention of 1968 was a pioneer in several respects: it was the first

multilateral convention on the recognition of foreign judgements; the first „double“

convention dealing with both recognition and jurisdiction; and also the first convention

on recognition that owes its existence to trade policy. I shall focus on the latter point.

Ever since the 19th century foreign trade agreements dealt with customs, quota and all

kinds of trade restrictions, so-called non-tariff trade barriers, but not with the recognition

of foreign judgments. Foreign trade was considered as a privilege for those who were

admitted to it. Where States granted that privilege, private actors would grasp the

opportunity to make money. When the founding Member States targeted the creation of

a common market in the mid-1950ies, it was for the first time that a Treaty aimed at the

full liberalization of trade in goods and services. No more customs, no more quota, no

more non-tariff barriers – that was the goal. At a late stage of the negotiations, in early

1957, someone became aware of the profound change that this Treaty would confer upon

the nature of foreign trade. From now on, the success of the trade policy would depend

on the private undertakings. But would they engage in international commerce? Or would

they prefer to keep to domestic trade? This depended on a number of factors relevant for

them. One of them was the likelihood of cross-border legal protection of their rights. This

was the background to Article 220 EEC Treaty and the duty of the Member States to

negotiate what later became the Brussels Convention.

Article 220 EEC, later renumbered as Article 293 EC, was deleted by the Treaty of

Lisbon. But in substance the link between judicial cooperation and the internal market

still surfaces in Article 81 para. 2 which encourages measures, “particularly when

necessary for the proper functioning of the internal market.” The link is also ensured by

the Lugano Convention which is a supplement to the European Economic Area.

However, the link has fallen into oblivion with regard to another group of European

countries. I am talking about the partner States under the European Neighborhood Policy.

This policy was introduced by the Prodi Commission in 2002; it is meant to offer

neighboring States “more than partnership and less than membership”. In recent years so-

called Deep and Comprehensive Free Trade Agreements have been concluded with

Georgia, Moldova and Ukraine. The agreements do not only provide for a far-reaching

liberalization of the trade in goods, they also put the three countries under the duty of a

* Prof. Dr. Dr.h.c.mult. Jürgen Basedow, LL.M. (Harvard Univ.), Director em. of the Max Planck Institute of

Comparative and International Private Law and Professor of Law, University of Hamburg; Member of the

Institut de droit international.