Alcuni caratteri generali del forum necessitatis nello spazio giudiziario europeo

Abstract

Since the entry into force of the 1968 Brussels Convention, Member States of the European Union possess a common set of rules concerning jurisdiction in civil and commercial matters. In recent years new measures have been adopted in order to promote the compatibility of the rules concerning conflicts of jurisdiction and some proposals are still pending. However, those measures are far from being coherent and consistent, since each one emphasizes different principles and values. While the EC regulation No. 44/2001 is mostly concerned with legal certainty and predictability of the head of jurisdiction, the EC regulation No. 2201/2003 and the EC regulation No. 4/2009 are intended to foster substantive values, such as favor divortii or protection of maintenance creditors. Recent proposals are going to develop at least a uniform rule about jurisdictional competence, based on the mechanism of the forum necessitatis, already envisaged by article 7 of the EC regulation No. 4/2009. That innovation is also a consequence of the proposed abolition of national exorbitant fora. The paper describes the general characteristics of the mechanism, that can be used only on a subsidiary and exceptional basis, i.e. when no provision would otherwise confer jurisdiction on a Member State. Accordingly, such a mechanism departs from the principles of predictability and proximity of the head of jurisdiction, because it applies when the dispute is closely connected to a third State. In that context the use of forum necessitatis is required in order to prevent or to remedy a denial of justice that could take place (or has already taken place) in the third State. When the denial of justice would affect procedural or substantive fundamental human rights of the claimant, the forum necessitatis mechanism allows him/her to bring his/her action before the courts of the Member States. More detailed requirements as to the existence of a denial of justice are envisaged in the proposal to revise EC regulation No. 44/2001. In addition, the dispute must have a «sufficient connection» to the Member State of the forum; such a requirement is needed in order to provide the allocation of jurisdictional competence between Member States.