La disciplina della contumacia del convenuto nei processi civili dell'Unione Europea. Standard comuni e possibilità di armonizzazioni

The fundamental right to a fair trial depends largely on the service of proceedings on the defendant; it is very important that this communication act informs the defendant of the existence of proceedings against him so that he has the possibility to defend himself in sufficient time. The casuistry shows that difficulties considerably increase when this first service of process has to be effected abroad. Indeed, the most problematic foreign judgments are those issued in absentia of the defendant. The European legislator has paid special attention to the service of the claim and to the default of appearance of the defendant; it has laid down both rules governing the ways in which the service of proceedings must be effected and the procedural treatment of involuntary default, including remedies available for involuntary non-appearance. However, mutual trust between the different Member States of the European Union -which is essential for the free movement of judgments- is undermined by differences between their own procedural rules. For this reason, and because they hinder the very application of European instruments, the aim is to highlight the divergences which exist in national procedural systems when it comes to this matter. Thus, after analysing the Community acquis and the various national realities in this area, this thesis puts forward a basis for the harmonisation of such a fundamental aspect for the viability of civil proceedings: the service of the claim and guarantees in case the defendant fails to appear.

The fundamental right to a fair trial depends largely on the service of proceedings on the defendant; it is very important that this communication act informs the defendant of the existence of proceedings against him so that he has the possibility to defend himself in sufficient time. The casuistry shows that difficulties considerably increase when this first service of process has to be effected abroad. Indeed, the most problematic foreign judgments are those issued in absentia of the defendant. The European legislator has paid special attention to the service of the claim and to the default of appearance of the defendant; it has laid down both rules governing the ways in which the service of proceedings must be effected and the procedural treatment of involuntary default, including remedies available for