The European Ministers of Justice are meeting on Thursday 4 June by videoconference to resume their legislative work on the law applicable to the enforceability of assignments of claims. They will also discuss the extradition of European citizens to non-Member States and receive information on the impact of the Covid-19 pandemic on justice.
Claims. Although the Croatian Presidency of the EU Council originally hoped to reach a political agreement at this meeting on the proposal for a regulation on the law applicable to the enforceability of assignments of claims (see EUROPE 12396/12), its ambition was undermined by the Covid-19 pandemic, certainly, but above all by the degree of technicality of the text, which has been giving the Member States a hard time for more than 2 years.
The ministerial discussion, which will be webcast online, aims to provide political guidance on three aspects of the regulation, including its retroactive application.
The Commission’s text states that the new rules will apply to assignments of claims agreed from the date the regulation comes into force. However, in the event of a priority conflict between two transferees of the same claim, both of whom concluded an assignment contract, one before and one after the date the regulation came into force, the text allows the rule on applicable law to be applied retroactively.
However, this provision is problematic for many Member States, which consider that the retroactive effect on rights acquired by third parties before the date of application of the Regulation could be contrary to the principle of protection of legitimately acquired rights, as well as to the principle of legal certainty.
The Presidency also wishes to obtain Ministers’ views on whether conflicts of priority linked to novation – which generally leads to the termination of a contract and its replacement by a new one – should be excluded from the scope of the Regulation and on the maintenance of the principle of universality, which provides that the national law designated as applicable by the Regulation may be the law of a Member State or the law of non-Member State.
In a preliminary note, Zagreb also envisaged surveying ministers on the law applicable to the assignment of claims secured by immovable property or property registered in a public register and offered two options (see EUROPE 12475/18).
Nevertheless, this subject has been removed from the list of items to be discussed at the meeting, as it requires more discussion in the EU Council preparatory bodies, a European source told us.
Extradition. Ministers will also exchange views on the extradition of EU citizens to non-Member States. The discussion, originally scheduled for the March ministerial meeting, had to be postponed due to Covid-19, according to the same source.
The practical application of the 2016 Petruhhin jurisprudence of the EU Court of Justice still poses difficulties for Member States. In particular, the solution put forward by the Court in this case, consisting in making use of the European arrest warrant, is applicable only in certain circumstances, in their view.
Work has already been carried out on this issue, but Ministers will discuss on Thursday whether further action is needed at EU level. They will also discuss whether to invite Eurojust and the European Judicial Network to take up the subject and make suggestions for possible Commission orientations.
Covid-19. The EU Fundamental Rights Agency, Eurojust, the European Judicial Network and the European Commission will then present the data they have collected on the impact of national measures taken to combat the spread of Covid-19 on judicial cooperation instruments and, more broadly, on the functioning of judicial systems in the EU (see EUROPE 12480/5).
This will mainly be a follow-up to the ministerial discussions on this subject which took place during the videoconference on 6 April (see EUROPE 12462/7) and, according to the same source, there should be no further in-depth discussion between Ministers.
European Public Prosecutor’s Office. The Commission will also make its traditional point of information on the state of play of the European Public Prosecutor’s Office, this time in writing, due to the time limitations inherent in the videoconference format.
The European Public Prosecutor’s Office has indeed entered its final phase of implementation. The selection process for European Prosecutors is being finalised and additional staff are being recruited in Luxembourg.
Electronic evidence. The Commission will also brief Ministers on the state of international negotiations between the US and the EU to conclude an agreement on cross-border access to electronic evidence (see EUROPE 12376/12).
The meeting will also be an opportunity for the incoming German Presidency to present its work programme in the field of Justice. (Original version in French by Marion Fontana)