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Section 11. Science of law
https://doi.org/10.29013/ESR-20-7.8-71-74
Vede Iuliia Vladimirovna, postgraduate student, of Ural State Law University Russia, Yekaterinburg
postgraduate student, of Martin-Luther University Halle-Wittenberg,
Halle, Germany E-mail: [email protected]
LEGAL REGULATION OF THE PROHIBITION OF ABUSE OF RIGHTS IN THE LEGISLATION OF THE EUROPEAN UNION
Abstract. The author examines the main sources of the prohibition of abuse of procedural rights in the law of the European Union. The article provides the main sources of various levels, as well as summarizes the practice of the European court of human rights and the European court of justice. Summarizing, the author concludes about the impact of judicial practice on the transformation and translation of the ban on abuse of procedural rights in the European Union and its member States.
Keywords: abuse of procedural rights, prohibition of abuse of procedural rights, European Union law, European court of human rights, European court of justice.
1. Universal legal acts the Convention for the protection of human rights
1.1 Universal Declaration of human rights (ar- and fundamental freedoms and the Charter of fun-
ticle 30) damental rights of the European Union, and, subse-
Judicial practice has a very negative attitude to quently, for the further development of a mechanism
unfair behaviour of participants in any relations, to combat abuse in both substantive and procedural
agreements, obligations, since abuse of rights vio- law. Fixing the relevant provisions on the inadmissi-
lates normal movement within the framework of bility of abuse of rights in the acts at this level creates
economic turnover, economic activity, and judicial obligations for the member States of the European
processes. This thesis has legal origins at the interna- Union to develop a legal framework that allows im-
tional level, confirmed by law enforcement practice plementing the provisions of these legal acts, thus is a
and is textually recorded in article 30 of the Universal kind of engine on the way to creating an appropriate
Declaration of Human Rights [13]. mechanism.
The establishment of provisions on the impossi- 1.2 Convention for the protection of human
bility of using the rights provided by the Declaration rights and fundamental freedoms of 1950
contrary to its goals is a prerequisite for the inclu- Article 17 of the Convention for the protection
sion of a direct ban on abuse of rights in the text of of human rights and fundamental freedoms contains
a direct prohibition on the abuse of rights, which is also duplicated in the norms of other international legal acts.
The article in question does not simply establish a ban on abuse of rights, but rather elevates this provision into a generally recognized Convention principle of law - the principle of fair use of rights, organically covering the sphere of fair use of procedural rights.
The Convention does not provide protection to those whose actions are deliberately aimed at undermining or destroying the democratic principles and freedoms protected by this international act. It is unacceptable to use or abuse the rights and freedoms guaranteed by the Convention for destructive purposes.
As early as 1961, the European court of human rights in the case of lawless V. Ireland [10] stated that the purpose of article 17 of the Convention for the protection of human rights and fundamental freedoms is to prevent a group of persons or individuals from using the Convention as a legal tool that would allow them to engage in activities or carry out individual acts aimed at undermining the rights and freedoms guaranteed by the Convention, thereby prohibiting the abuse of all the rights set forth in the Convention, including procedural rights [12].
The inclusion of provisions prohibiting the abuse of rights in article 17 of the Convention for the protection of human rights and fundamental freedoms brings it to the level of a generally recognized Convention principle, with guarantees set out in other articles of the Convention and expressed in the legal positions of the European court of human rights in its rulings [3]. Violation of article 17 is considered as a rule in connection with violation of other articles of the Convention, as an element of strengthening the effect of negative consequences of violation of fundamental principles and norms of international law.
The legal positions of the European court of human rights and the European court of justice, including detection and suppression of abuse of procedural rights, should be considered and implemented by na-
tional systems of individual States, as the interaction ofEuropean and domestic legal orders is impossible in conditions of subordination, as only a dialogue between different legal systems is the Foundation of balance. The opposite situation would lead to the deformation of the state's legal system and the creation of multiple conflicts [6, 336].
2. Special legal acts
2.1 The Brussels Convention of 1968
The Brussels Convention on jurisdiction and enforcement of judgments in civil and commercial disputes [1] was adopted two years after the entry into force of the Treaty on the EEC (01.01.1958) and is an independent international legal Treaty closely related to the EU and yet is not a primary or secondary law of the Union [9, 116]. In accordance with the preamble, the purpose of this Convention was to strengthen the legal protection of persons residing there within the Community. For the same purpose, the rules on recognition of decisions of foreign courts were unified, but also the rules on international competence in terms of making a decision, which at that time was a huge progress in terms of the qualitative characteristics of the existing rules of law.
Thus, the Brussels Convention of 1968 was the first document containing elements of a mechanism for regulating the rules of jurisdiction.
2.2 Luhansk Convention of1988 and Luhansk Convention of2007
The Convention on jurisdiction and enforcement of judgments in civil and commercial matters [4] has not just adopted a number of norms of the Brussels Convention of 1968. (with subsequent changes), but also in some parts I have improved its provisions qualitatively, and in some parts I have gone my own way, while acting in parallel with the Brussels Convention.
Subsequently, after the cancellation of the Brussels Convention of 1968. in connection with the adoption of Regulation No. 44/2001, the Luhansk Convention of 1988. lost its force and was replaced by the Convention on jurisdiction, recognition and
enforcement of judgments in civil and commercial matters, concluded in Lugano on 30.10.2007 [5]. In essence, the Luhansk Convention of 2007, which is currently in force in parallel with Regulation N1215/2012 of the European Parliament and of the Council of the European Union on jurisdiction, recognition and enforcement of judgments in civil and commercial cases, contains provisions that ovelap with those contained in it on determining the rules of jurisdiction, and is also one of the sources containing rules that prevent such open abuse of procedural rights.
5. Regulations no. 44/2001 and No. 1215/2012.
Regulation no. 44/2001 and the new Regulation No.1215/2012 of the European Parliament and of the Council of the European Union on jurisdiction, recognition and enforcement of judgments in civil and commercial cases, which repealed and substantially revised some of its provisions, are among the main sources regulating the rules for determining jurisdiction in cross-border disputes. In addition to fixing the rules for determining jurisdiction, Regulation No. 1215/2012 is also one of the results of the gradual harmonization of European Union law, which is undoubtedly also one of the key points in the fight against procedural abuse.
B. The role of the ECHR's jurisprudence in shaping the mechanism for prohibiting abuse of procedural rights in cross-border disputes.
1. the Case "Grasser V. Germany".
The decision of the European court of human rights of 05.10.2006 "Case" Grasser V. Germany [7] was one of the main reasons for the significant revision of the provisions on temporary priority and rules of jurisdiction contained in Regulation No. 44/2001 and the adoption of Regulation No. 1215/2012, establishing that the criterion of the duration of the dispute is not fundamental in determining the competent court, because such an exception would create legal uncertainty and violate the principle of mutual trust between the courts of the member States of the European Union.
2. The case ofWeber.
The question of the exclusive competence of the second-called court and the limits of its competence under article 22 of Regulation No. 44/2001 was raised immediately before the German Federal court and later before the European court of justice [2]. The position of the Federal court on this issue was quite clearly indicated: "there is no reason to suspend the exclusive jurisdiction of the last court called." However, the European court of justice did not support the Decision of the German Federal court and took a diametrically opposite position. Referring to the principle of justice to act on lawful and honest grounds, it is argued that the last called court, which, in accordance with article 22 of Regulation No. 44/2001, has exclusive competence, should postpone the trial until the final resolution of the issue of incompetence of the first called court is established [11, 344].
Thus, the European court of justice wanted to minimize the negative components of the principle of mutual trust, which arose due to the restriction of the powers of the courts of the EU member States on issues of verification of exclusive competence.
3. The Significance of the rulings of the European court of justice and theEuropean court of human rights in the formation of a mechanism to combat abuse of procedural rights.
The rulings of the European court of human rights and the European court of justice are important for the development of not only European Union law, but also for most of the world's modern legal systems. They affect the practice ofapplying international legal acts and national laws of a particular country, create prerequisites for rejecting a narrow interpretation of national legal norms, and contribute to changing legal acts in terms of regulating the rights and freedoms of participants in certain legal relations, including procedural ones. Currently, the European court of human rights is considered the most authoritative human rights court [8, 81]. For example two judgments of the European court ofhuman rights discussed above,
which is only "a drop in the ocean", it is obvious that the ECHR is one of the main engines ofprogress, not only in terms of suppression of procedural abuses, but also in the formation of European Union law and
harmonization of the national laws of the member countries of the EU and other countries in which the ECHR judgments are binding.
References:
1. Brussels Convention on Jurisdiction and Enforcement ofJudgments in Civil and Commercial Disputes, 27.09.1968.
2. EuGH, Urteil v. 03.04.2014.
3. Convention for the Protection of Human Rights and Fundamental Freedoms, 04.11.1950.
4. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 16.09.1988.
5. Convention on Jurisdiction, Recognition and Enforcement ofJudgments in Civil and Commercial Matters, 30.10.2007.
6. Commentary on the Convention for the Protection of Human Rights and Fundamental Freedoms and the Practice of its Application / Ed. ed. V. A. Tumanova, L. M. Entina. - M .: Norma, 2002.
7. Judgment of the European Court of Human Rights of05.10.2006 "Grasser v. Germany".
8. Ispolinov A. S. Precedent in international law // Legislation. 2017.- No. 1.
9. Kropholler Europ. Zivilprozwssrecht, 1993.
10. Lawless v. Ireland. Decision of the European Court of Human Rights, 1.07.1961 r.
11. Matthias Klöpfer: Missbrauch im Europäischen Zivilverfahrensrecht (Veröffentlichungen zum Verfahrensrecht), Mohr Siebeck, Tübingen 2016.
12. Villiger M. Article 17 ECHR and Freedom of Speech in Strasbourg Practice // Freedom of Expression: Essays in Honour of Nicolas Bratza. Oisterwijk, 2012.
13. Universal Declaration of Human Rights, 10.12.1948.
