Personal participation to civil proceedings imposing penalty payments in the European judicial area: is the right to a fair trial guaranteed?

Civil and criminal justice, although commonly understood as different and dived, might overlap in some cases in which the division between the two becomes blurred. This is the case of civil penalty payments, which have some penal aspects but are considered as civil measures. This shift from criminal to civil law has significant consequences in terms of procedural guarantees, since different standards are applied in civil and criminal matters. This research focuses on one of these consequences, namely the role of personal participation in proceedings imposing penalty payments in the European judicial area. The research shows that the legislations of all the European States analysed, except for Germany, do not provide any specific guarantees for defendants in order to assure their personal presence when penalty payments are imposed upon them in trial. Moreover, being judgements on civil and commercial matters directly recognised and enforced in the European judicial area due to the provisions of the Brussels regime, with few exceptions, it follows that judgements imposing penalty payments, held in a cross-border dispute, could be easily recognised and enforced in any Member State in which the judgement debtor has assets. The aim of this research is to try to understand whether these measures, if imposed in absentia, and the eventual cross-border enforcement are compatible with fair trial guarantees ensured in the European Union. In the first chapter, the various concepts of penalty payments in some States of the European judicial area are given and the legislation regulating the measure has been analysed. More precisely, the astreinte in French law has been delineated and the legislation of Belgium and Italy regarding different forms of astreintes has been outlined. The research continues with German and Finnish legislation. Additionally, a short overview of the concept of punitive damages in the United States of America will be provided, with the purpose of understanding their non-existence in continental Europe as a civil sanction. The second chapter has introduced the Brussels I Recast Regulation, and, especially, the provisions on recognition and enforcement of foreign judgements. Then, the consequences of the civil law character of penalty payments in the European Judicial Area have been pointed out, with a focus on the role of personal participation in civil trials imposing penalty payments. In addition, an overview of the legislation of Member States regarding personal participation in civil proceedings has been given, coupled with an outline of European legislations on in absentia civil trials in order to assess whether the penalty payment regime is regulated by special provisions concerning personal participation. Lastly, the third chapter of the present research has tried to give the elements in order to understand whether the changing of label of penalty payments, from criminal to civil, guarantees defendant's fundamental right to a fair trial considering the “personal participation issue”.