2 results
Italy
- Edited by Jan von Hein, Thalia Kruger
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- Book:
- Informed Choices in Cross-Border Enforcement
- Published by:
- Intersentia
- Published online:
- 26 May 2021
- Print publication:
- 15 January 2021, pp 247-274
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Summary
INTRODUCTION
This report addresses the application in Italy of EU Regulation No. 805/2004 creating a European Enforcement Order for uncontested claims (EEO), Regulation No. 1896/2006 creating a European Order for Payment procedure (EOP), Regulation No. 861/2007 establishing a European Small Claims Procedure (ESCP), Regulation No. 655/2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters (EAPO), and Commission Implementing Regulation No. 2016/1823 establishing the forms referred to in EAPO Regulation5 (together also the ‘IC2BE Regulations’ or ‘Regulations’) in order to identify the paths that lead to an improvement of their consistency and effectiveness.
It is based on: (i) the case law collected in the IC2BE database which, as of 31 January 2020, included 49 judgments, of which 19 concerned the EEO Regulation, 22 the EOP Regulation, seven the ESCP Regulation, and one the EAPO Regulation; and (ii) 19 interviews performed and analysed, of which 10 were with lawyers in private practice, three with judges, four with business lawyers, and two with representatives of consumer organisations.
The project also benefited from two exchange and information events and from the final seminar organised by the Italian team. The analysis carried out in this report is further supported by the autonomous research of the team members.
PERVASIVE PROBLEMS
AWARENESS OF REGULATIONS
Awareness in General
The aforementioned collected data clearly portray a lack of awareness of the IC2BE Regulations. The lack of knowledge concerns, for the most part, the very existence of the Regulations; but even in cases where there is awareness of the existence of these instruments, a poor familiarity with their functioning is common.
This is due to, and has simultaneously caused, their poor application, as has been shown during the IC2BE project by the few jurisdictional rulings rendered and the difficulty the Italian team experienced in finding, especially for the interviews, legal practitioners cognisant of the existence of the Regulations and of the practical issues they may raise.
The majority of participants confirmed that there is not a sufficient amount of information available on those Regulations in Italy and complained about an absence of dedicated Italian websites. Most of them criticised the complexity of the information made available in Italian on the e-Justice Portal, especially for inexperienced parties such as consumers, and emphasised that there are no practical guidelines available for businesses or company lawyers.
Provisional Measures and the Best Interests of the Child in the Field of Parental Responsibility
- from PART II - THE BEST INTERESTS OF THE CHILD AS A CONCERN OF HUMAN RIGHTS AND EUROPEAN PRIVATE INTERNATIONAL LAW
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- By Lidia Sandrini, University of Milan, Italy
- Edited by Elisabetta Bergamini, Chiara Ragni
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- Book:
- Fundamental Rights and Best Interests of the Child in Transnational Families
- Published by:
- Intersentia
- Published online:
- 12 November 2019
- Print publication:
- 30 September 2019, pp 287-310
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Summary
INTRODUCTION
It is unanimously acknowledged that speedy action by courts is crucial when it comes to protecting the legal rights of minors in disputes concerning them, particularly where young children are involved. Thus, we may certainly say that speed is an essential element of the adjudication process for pursuing the best interests of children, as a procedural rule. On the other hand, the need to analyse all the elements necessary in the particular case to determine the best interests of the child in the substantive sense inevitably affects the duration of proceedings, which can oft en become quite complex. Moreover, the conflict between speed and thoroughness is heightened in matters of parental responsibility, and is balanced within domestic legal systems by procedural rules that provide for interim measures of protection. The provisions on provisional and protective measures found in Regulation (EC) No. 2201/2003 are intended to bring about the same result in cross-border controversies. This chapter will investigate the ways in which this Regulation implements the principle of the superior interests of the child, as well as how this principle, as incorporated in EU law, may be perceived through it. This analysis is particularly timely today, in light of the recent recast of the Regulation, not least of all in order to verify if, and to what degree, the modifications that had been proposed by the Commission, and those eventually adopted, effectively move toward strengthening the protection of children.
JURISDICTION ON THE SUBSTANCE AND JURISDICTION TO ISSUE INTERIM RELIEF
As well known, Article 20 of the Brussels IIa Regulation contains a rule that specifically addresses provisional and protective measures and allows them to be established even by the judicial authorities of Member States different from the one with jurisdiction over the substance of the matter. Nevertheless, the Regulation first and foremost confers jurisdiction to adopt provisional measures on the latter courts. As is the case with other European Union Regulations that regulate jurisdiction, this is not stated explicitly in any particular rule, and yet it has never been called into question. This is also supported by the precedent established by the 1968 Brussels Convention: the CJEU, albeit without any textual support, has not hesitated to declare that the same court identified as having the jurisdiction on the substance of the matter, ‘also has jurisdiction to order any provisional or protective measures which may prove necessary’.