In this chapter, the law scholar Jan von Hein analyses and evaluates the European Parliament’s proposal on a civil liability regime for artificial intelligence against the background of the already existing European regulatory framework on private international law, in particular the Rome I and II Regulations. The draft regulation (DR) proposed by the European Parliament is noteworthy from a private international law perspective because it introduces new conflicts rules for AI. In this regard, the proposed regulation distinguishes between a rule delineating the spatial scope of its autonomous rules on strict liability for high-risk AI systems (Article 2 DR) on the one hand, and a rule on the law applicable to fault-based liability for low-risk systems (Article 9 DR) on the other hand. The latter rule refers to the domestic laws of the Member State in which the harm or damage occurred. In sum, compared with Rome II, the conflicts approach of the draft regulation would be a regrettable step backwards in many ways.

INTRODUCTION

In this final chapter, we will first summarise the main results of the present study from a comparative point of view; in this respect, the present chapter builds on the more detailed national reports found in this book. The analysis of the national data will be structured according to the pervasive problems (section 2) that we have already identified in the introductory chapter. Based on those observations, we will then sum up and try to explain our key findings. First, we will look at divergences concerning the application of the second-generation Regulations in the various Member States (section 3.1). Then, we will try to explain the choices that creditors make between the various methods of cross-border enforcement that are available to them in the current EU legal framework (section 3.2). In light of the national experience with the second-generation Regulations, we will then identify ‘best practices’ in implementing the Regulations, i.e. steps by domestic legislatures to enhance the attractiveness of applying the Regulations and making them more efficient from the point of view of claimants (section 4.1). In particular, our focus will be on domestic legislation that guarantees a smooth interface between the EU Regulations and supplementary national civil procedural laws (implementation, section 4.2). Moreover, we will look at how Member States may design the organisation of their court system in order to facilitate the application of the Regulations by knowledgeable and experienced practitioners (specialisation, section 4.3). Then, we will discuss how modern information technology may make the cross-border enforcement of claims more effective (digitalisation, section 4.4). Of course, any measures that are designed ‘to simplify, accelerate and reduce costs in cross-border disputes’ must be balanced against an adequate protection of debtors, in particular consumers (section 2.6). Last but not least, national experiences in applying the Regulations may inform proposals for improving the coherence of the current EU framework on cross-border enforcement (section 4.5). This chapter concludes with our recommendations to the EU legislature with regard to future legislative and other steps that may be taken in order to make the second-generation Regulations more attractive (section 4).

INTRODUCTION

This report is based on a quantitative and qualitative analysis. The quantitative analysis rests on German cases uploaded to the IC²BE database. The database includes 51 cases on the European Enforcement Order (EEO) Regulation, 15 cases on the European Order for Payment (EOP) Regulation, seven cases on the European Small Claims Procedure (ESCP) Regulation, and seven cases on the European Account Preservation Order (EAPO) Regulation. The qualitative analysis is based on 21 interviews conducted with judges, lawyers, businesses and consumer organisations in different states of Germany. The interviews involved 24 participants.

PERVASIVE PROBLEMS

AWARENESS OF REGULATIONS

Awareness in General

Whereas domestic provisions dealing with the implementation of conventions (e.g. the Lugano Convention) and EU Regulations that require an exequatur, such as the Brussels I Regulation, are traditionally found in the Act on Implementing Recognition and Enforcement, the German legislature has enhanced the visibility of more recent EU Regulations – Brussels Ibis, the EEO, EOP and ESCP Regulations – by compiling the related rules in Book 11 of the Code of Civil Procedure (ZPO). This approach ensures that practitioners are alerted to the applicability of EU Regulations. Moreover, standard commentaries on the ZPO include explanations of those rules and the Regulations as well, thus making it frequently superfluous to consult more specialised treatises. Nevertheless, the awareness that the second-generation Regulations exist still leaves room for improvement. Therefore, there are widespread calls to make the Regulations more widely known and to improve the training of legal professionals.

However, practitioners who are aware of the Regulations deploy them selectively and make use of their respective advantages. In particular, the interviewees prefer applying for an EOP to enforcing a domestic order for payment under Brussels Ibis because the centralised jurisdiction at the Amtsgericht Wedding (see below section 2.2.2.2) allows for accelerated proceedings and greater predictability. Furthermore, the EOP Regulation is easier to handle than foreign order for payment procedures. Sometimes, domestic order for payment proceedings may be advantageous because of the wider scope of Brussels Ibis and its less consumer-friendly rules.

Apart from that, participants find the ESCP procedure more convenient than initiating domestic small claim procedures in conjunction with a subsequent enforcement under Brussels Ibis, particularly if the small claims procedure is sued in another Member State under a foreign procedural law.

THE CURRENT FRAMEWORK OF CROSS-BORDER ENFORCEMENT IN THE EU

In contrast with the former Brussels I Regulation, the European Enforcement Order (EEO) Regulation, the European Order for Payment (EOP) Regulation, the Regulation on the European Small Claims Procedure (ESCP) and the European Account Preservation Order (EAPO) Regulation abolished the traditional requirement of obtaining a declaration of enforceability and thus soon became known as the so-called ‘second generation’ of EU Regulations on civil procedure. The relationship between the Brussels I Regulation and the second-generation Regulations was characterised by their optional nature: within the respective scope of application of the various Regulations, creditors were generally allowed to freely choose between enforcing a claim under Brussels I or by means of the second-generation Regulations. Empirical studies already conducted before the Brussels I recast of 2012 showed, however, that the second-generation Regulations were, in most Member States, only applied in a relatively small number of cases. While at first the second-generation Regulations had, from a claimant's point of view, the advantage of dispensing with the exequatur requirement, the recast of the Brussels I Regulation in 2012 has significantly changed this equation because an exequatur is no longer required under the latter Regulation either. Thus, weighing the pros and cons of choosing between one of the various options of cross-border enforcement has become more difficult. It is very likely that practitioners familiar with standard Brussels Ibis procedures will only opt for one of the second-generation Regulations if there is a clear benefit that outweighs the time, efforts and costs required to familiarise themselves with a less frequently used and therefore less well-known legal instrument. Accordingly, it is a central question as to whether the abolition of exequatur in the Brussels Ibis Regulation has further decreased the appeal of the second-generation Regulations for practitioners or whether recent reforms – in particular the introduction of the new EAPO Regulation and the revision of the ESCP and EOP Regulations in the year 2015 – have led or may lead to a rising demand in this regard.

THE ABOLITION OF EXEQUATUR

THE TRADITIONAL BRUSSELS I AND LUGANO MODEL

Already under the Brussels I Regulation, a judgment was ‘recognised in the other Member States without any special procedure being required’ (Art. 33(1) Brussels I Regulation).

BACKGROUND AND AIM

Since the entry into force of the Treaty of Amsterdam in 1999, the European Union has adopted an impressive number of regulations in the field of Private International Law and International Civil Procedure. As regards Private International Law in the narrow sense, i.e. rules determining the applicable law, these regulations cover contractual and non-contractual obligations, divorce and legal separation, matrimonial property and the property consequences of registered partnerships as well as succession. As regards international civil procedure, several regulations provide for uniform rules relating to jurisdiction, recognition and enforcement of foreign judgments in civil and commercial matters, inheritance and family law. In addition, a number of regulations ease the settlement of cross-border disputes more generally. This holds true for the Service Regulation, the Evidence Regulation, the Enforcement Order Regulation, the Small Claims Regulation, the Payment Order Regulation and the Insolvency Regulation.

The degree of legislative unification that has resulted from the European lature's activities has been described as the first true Europeanisation of Private International Law and as a ‘European Choice of Law Revolution’. However, after a certain initial euphoria or ‘gold rush fever’, a noticeable disillusionment has recently set in: has the far-reaching unification of the ‘law on the books’ turned Private International Law and International Civil Procedure into a truly European ‘law in action’? Doubts are in order for a number of reasons:

First, these regulations do not apply uniformly in the Member States. Denmark, for example, does not take part in any of the measures mentioned above, unless they are bilateralised by conventional international treaties with the European Union. In addition, Ireland and the United Kingdom decide on a case-by-case basis whether they wish to join certain measures. Moreover, there are some regulations, such as the Rome III Regulation and the recently adopted Matrimonial/Partnership Property Regulations, which are only applied in some Member States because they have been adopted through enhanced cooperation. Last but not least, the impending withdrawal of the United Kingdom from the European Union (‘Brexit’) raises additional questions about the continuing application of those regulations for which the country had previously declared an opt-in.