LA GIURISDIZIONE IN MATERIA CIVILE E COMMERCIALE NEI CONFRONTI DI SOGGETTI DOMICILIATI IN STATI TERZI NELLA PROSPETTIVA DEL DIRITTO DI ACCESSO A STRUMENTI DI TUTELA EFFETTIVA NELL¿UE

Access to justice is probably the main component of the right to a fair trial, the observance of which is imposed on the Member States of the European Union by virtue of a number of rules, both internal and supranational, which highlight its importance not only as an autonomous right deserving protection, but also as an essential tool for ensuring the protection of other fundamental rights. These rules have been developed in order to clarify the scope of the right in question, the content of which has been progressively enriched (in particular) by reference to the notion of ‘effective access to justice’, since the protection of fundamental rights requires the availability, in the judicial system, of a set of procedural and substantive means, which are capable to give an effective satisfaction of the claims brought by the plaintiff against the defendant. In cross-border situations, the need to ensure effective access to justice is met, in the first place, through private international law rules on jurisdiction. As regards to civil and commercial matters, these aspects are largely governed by Regulation (EU) No 1215/2012, whose rules on jurisdiction, with a few notable exceptions, only applies when the defendant is domiciled in a Member State. Such a situation seems to give rise to some criticisms, in particular if one considers that the need to ensure access to effective judicial remedies seems to be observed, first of all, in those cases which present a particular connection with one or more non-Member States, and therefore also with respect to those disputes in which the defendant is domiciled outside the European Union. On the basis of such considerations, the present work assesses the opportunity of extending the scope of application of Regulation (EU) No 1215/2012. Indeed, although the possibility to proceed with such an extension has already been considered (and finally ruled out during the recasting process of the former Regulation (EC) No 44/2001), the question is still relevant and requires a deeper analysis of this profile. In particular, after having reconstructed the content of the right of access to effective judicial remedies, it assesses whether an obligation to provide the victims of certain kind of infringement (e.g. gross violations) with access to a court within the EU exists. Such an analysis is carried out not only through the lens of some recent proposals and recommendations, but also in the light of EU substantive law, which increasingly seeks to apply in an extra-territorial way, i.e. with respect to matters not entirely circumscribed within the borders of the Member States.