The European Judicial Network and the e-Justice Portal: tools for cross-border family cases

On October 10, 2023, as part of the international and European law track at the EFB, the Paris bar school, I led a two-hour course on the European Judicial Network in civil and commercial matters (Réseau judiciaire européen en matière civile et commerciale, RJECC) and the e-Justice Portal, with Guillaume Bellot, a judge, and Dimitri Desmé. The aim: to familiarize trainee lawyers with the European tools they will need in their future cross-border cases. Here are the key takeaways.

The reflexes of an international case

A well-run cross-border case rests on a few reflexes: check which courts have jurisdiction and which laws apply; know the foreign law and local procedure; check how the hoped-for decision will be recognized and enforced; master the methods of service and the translations required; and have a network so you can act quickly and well.

Strategy is built upstream. If the French court lacks jurisdiction over all the claims, the dispute may be split. Within the EU, lis pendens (litispendance) binds the court seized second, which creates a genuine race to the courthouse; and even when the French court was seized first, a decision from parallel proceedings abroad may be recognized in France if it was obtained without fraud (French Supreme Court, 1st Civil Chamber, September 30, 2009). You therefore need to factor in the length of proceedings in each country, lawyers' and translation fees, and check that the decision can be enforced where it has to be.

Finding the content of foreign law

A first overview comes from comparative law encyclopedias and reference works or, in family matters, from JaFBase. To confirm that the rules are current, practitioners use legal opinions or certificates of foreign law (certificats de coutume) issued by foreign colleagues, academics or consular services; associations such as the International Academy of Family Lawyers list lawyers abroad. Where the applicable law is that of a Member State, the RJECC provides factsheets on national law and access to a contact point, with a single entry point at the Department of mutual assistance, private international and European law of the French Ministry of Justice.

Serving documents and taking evidence in another Member State

For service of documents within the EU, Regulation 1393/2007, replaced from July 1, 2022 by Regulation 2020/1784, allows direct transmission to the competent body in the State of destination, which should be preferred over consular or diplomatic channels. The document comes with a standard form; the receiving agency acknowledges receipt within seven days and serves the document within one month. Translation is not mandatory, but the addressee may refuse a document written in a language they do not understand: translating it avoids having to serve it again.

To obtain evidence abroad, such as hearing a child, the Evidence Regulation allows the French court to send its request to the court of the requested State using a form available online on the e-Justice Portal, which also helps identify that court. The request is executed free of charge, apart from experts' or interpreters' fees, within three months. The judge may also hear the child directly, for instance by videoconference, on a voluntary basis. That hearing matters: the Brussels II ter Regulation requires that a child capable of forming views be given a genuine and effective opportunity to express them (Article 21).

Enforcement: online certificates and the European account preservation order

Since August 1, 2022, the Brussels II ter Regulation has made parental responsibility decisions enforceable as of right in other Member States (Article 34): all you need is a copy of the decision, the certificate under Article 36 and, if the enforcement authority requires it, a translation of its free-text fields. The e-Justice Portal lets you fill in these certificates online and download them in the language needed, whether to enforce contact rights or to have a divorce registered.

When a parent living in another Member State stops paying support, the European account preservation order (Regulation 655/2014, applicable since January 18, 2017) offers a fast, ex parte procedure whose element of surprise prevents the debtor from moving funds. The name of the bank is enough, and the forms completed online on e-Justice are generated in the language of the requested State.

Building on the CLUE seminars (2019–2022)

This course builds on the CLUE project of the European Judicial Network in civil and commercial matters, co-funded by the European Union, to which I contributed by helping prepare the seminars. From 2019 to 2022, the project offered lawyers and judges seminars on the European Judicial Network and cross-border family cases, held in cities including Lyon, Lille, Aix-en-Provence, Agen, Dijon and Paris.

Their approach: interactive, practical, hands-on seminars to give practitioners a European reflex. Each round table, on divorce and parental authority, matrimonial property or maintenance, opened with a presentation of the applicable regulations, then worked through a case study, solved live on the e-Justice Portal where relevant to show where to find information and forms. The EFB course reused that case study, invented for the exercise, focusing only on the questions relevant to the RJECC and e-Justice: content of foreign law, service, evidence, certificates and account preservation.

Key takeaways

1. 1Check claim by claimCheck jurisdiction and applicable law for each claim before going to court.
2. 2Think about enforcementA decision that cannot be enforced in the State concerned makes the proceedings pointless.
3. 3Use the RJECCFactsheets on Member State law and contact points make foreign law easier to access.
4. 4Prefer direct serviceIt is faster than diplomatic channels; translating the document avoids a refusal.
5. 5Arrange the child's hearingThe Evidence Regulation allows it to be carried out in another Member State.
6. 6Fill in the forms on e-JusticeCertificates and account preservation applications are completed online, in the required language.

Training excerpts

General information. This account of a talk reflects only my personal opinion and is not legal advice. The cases mentioned are fictional, or inspired by real cases, modified and anonymized.