COMPETENCE. – A term used in juridical language to indicate the specific objective capacity of the various judicial organs, that is, that portion of the power of jurisdiction which in practice belongs to each of them.
In canon law, no less than in civil law, competence is determined on the basis of four fundamental criteria: functional, objective, subjective, and territorial. The functional criterion (competence by level) concerns the nature of the activity which the judge is called upon to exercise in a given trial, in correlation with the principle of multiple instances. The objective criterion concerns the value of the case or the special nature of its subject matter (competence by subject matter and value). The subjective criterion relates to the particular status and dignity of certain persons, in the event that they become parties to a procedural relationship. Finally, the territorial criterion refers to the district within which the judge’s activity must be exercised (competence by territory).
Of these criteria (which often interfere and combine with one another, so as not to permit a rigorous classification of the various grounds of competence), the first three are absolute, that is, they cannot be altered or extended by the parties (can. 1558); the fourth, on the other hand, is relative (can. 1559 § 2). It follows that lack of competence by subject matter or by reason of personal dignity must be raised ex officio by the judge, may be pleaded by the parties at any level and stage of the proceedings (can. 1628 § 2), and constitutes a ground of irremediable nullity of the judgment (can. 1892 n. 1); whereas lack of territorial competence, if it is neither raised nor pleaded in limine litis, does not prevent the valid continuation of the proceedings.
Competence is generally established by law (legal forum); exceptionally, however, it may be determined by a superior or by the judge (commissorial or judicial forum). Under the law in force, the parties may not themselves derogate from the rules on competence (can. 1559 § 1), except where, in concluding a contract, they have elected a particular forum for disputes relating to it (can. 1565 § 2).
I. FUNCTIONAL JURISDICTION. — Although it is not expressly regulated by the CIC under the title De foro competenti, there is no doubt that functional jurisdiction constitutes an indispensable prerequisite for a judgment on the merits, by virtue of the principle of multiple levels of jurisdiction.
The ordinary judge of first instance in each diocese is the Ordinarius loci (that is, in addition to the residential bishop, the capitular vicar, the abbot or prelate nullus, and the permanently constituted apostolic administrator), who exercises judicial power either personally or through the tribunal (can. 1572 ff.). However, competent to hear at first instance disputes concerning the rights and temporal goods of the bishop, the diocesan mensa, or the diocesan curia is the immediately superior judge or, if the bishop consents, the diocesan collegiate tribunal, composed of the officialis and the two senior synodal judges (can. 1572 § 2).
The ordinary judge of second instance is the metropolitan in cases decided by a suffragan bishop; whereas cases heard at first instance before the metropolitan shall be adjudicated on appeal by that ordinarius loci whom the metropolitan himself has designated once and for all, with the approval of the Apostolic See.
For disputes between exempt religious and between religious houses, the CIC provides special jurisdictions of first and second instance; it also determines the particular functions of the ordinary tribunals of the Apostolic See, namely the Sacred Roman Rota (v. TRIBUNALI ECCLESIASTICI) and the Segnatura (v.).
The non-derogable limits of functional jurisdiction must also be regarded as those within which the judge exercises his judicial power when correcting a judgment (for which the competent judge is the one who issued it) and in certain extraordinary means of appeal, complaint (v.) of nullity, third-party opposition (v.), and restitutio in integrum (v.). Likewise, the jurisdiction of the judge in executive matters is to be regarded as determined on the basis of the functional criterion.
II. SUBJECTIVE AND SUBJECT-MATTER JURISDICTION
After affirming in can. 1556 the principle of the full and absolute immunity of the supreme pontiff (Prima Sedes a nemine iudicatur), the CIC establishes (can. 1557 § 1) that cases concerning heads of state, their children and successors, cardinals, papal legates and, limited to criminal cases, residential and titular bishops are reserved to the exclusive jurisdiction of the same pontiff. The tribunals of the Apostolic See are instead reserved (can. 1557 § 2) for contentious cases in which residential bishops and dignitaries equivalent to them are defendants, insofar as their property and personal rights are concerned; as well as for those involving dioceses or other juridical persons directly subject to the supreme pontiff, such as exempt religious institutes, religious Congregations, etc.Apart from these exhaustive and non-derogable provisions, it should be noted that, by virtue of his immediate jurisdiction over all the faithful, the pontiff may, either on his own initiative or at the request of a party, call any case before himself, whatever its stage or level of jurisdiction.
In numerous cases, the subject matter of the case, independently of consideration of the parties, influences the determination of jurisdiction. Thus, cognizance of criminal cases concerning heresy, sacrilege, simony, violation of the sacramental secret, solicitation in Confession, etc., as well as of contentious cases concerning the Pauline privilege and the nullity of marriages between Catholics and non-Catholics, is assigned to the Congregation of the Holy Office. Likewise, cases of beatification and canonization are reserved to the Congregation of Rites. The Congregation of the Sacraments has jurisdiction to judge proceedings «super matrimonio rato et non consummato» and cases in which the validity of Holy Ordination is challenged. Thus, for cases of matrimonial nullity to be decided in Italy, jurisdiction belongs to the 18 regional tribunals established by the motu proprio Qua cura of 8 December 1938.
III. TERRITORIAL COMPETENCE
The fundamental rule is that contained in can. 1559 § 3, by virtue of which the plaintiff follows the forum of the defendant.For certain cases, however, the law establishes a mandatory forum, in the sense that they must be brought before a designated judge. Such are, under can. 1560: 1) actions for dispossession, for which competence belongs to the Ordinary of the place where the property whose possession is in dispute is located; 2) cases concerning a benefice, even a non-residential one, for which the competent authority is the Ordinary of the place where the benefice is established; 3) cases relating to the administration of property, which must be decided by the Ordinary of the place where the administration was conducted; 4) cases concerning inheritances or pious legacies, which fall within the competence of the Ordinary of the testator’s domicile, unless they concern merely the execution of a legacy.
Apart from these exceptions, the territorial competence of the judge is determined, generally speaking, by the domicile (v.) quasi-domicile (v.) of the defendant (can. 1561). Both the one and the other, whether actual or legal, constitute concurrent forums; the choice between them, in each individual case, is left to the discretion of the plaintiff.
Anyone present in Rome may also be summoned before the tribunals of the City, but has the right to request that the case be remitted to his own Ordinary; and anyone who has resided in Rome for more than a year may decline the forum of his own Ordinary and request to be summoned before the Roman judge (can. 1564).
The “vagrant” (that is, one who has no domicile or quasi-domicile) must be summoned before the judge of the place where he is currently residing; whereas, for a religious, whether bound by simple or solemn vows, the competent forum is that of the place where the house to which he is assigned is located (can. 1563).
Alongside the forum of the defendant, the law establishes an optional forum for certain cases. Thus, actions relating to real rights may be brought before the judge of the place where the property in dispute is located (can. 1564); in cases arising from a contract, a party may be summoned before the Ordinary of the place in which the obligation arose or is to be performed (can. 1565 § 1); in criminal cases, in addition to the judge of the domicile or quasi-domicile, the judge of the place where the offence was committed also has competence, even if the offender subsequently left that place (can. 1566); in matrimonial cases, the judge of the place where the marriage was celebrated also has competence (can. 1564).
IV. C. BY CONNECTION OR CONTINENCE OF ACTIONS. — When two or more proceedings have in common some of the objective and subjective elements (res, causa petendi, personae) that constitute the respective claims, the case of connection arises; this assumes the specific form of “continence of action” whenever, the parties being identical, the objective elements stand in a relationship to one another of container to contained.
Considerations of expediency and procedural economy recommend that connected actions be decided by the same judge; and this is precisely what canon 1567 prescribes. If they are already pending before different judges, they must be joined on the basis of priority; that is, the judge competent to hear them in a single proceeding will be the one who first summoned the defendant, provided, naturally, that this is not precluded by the limits assigned to his functional or subject-matter jurisdiction (can. 1568).
It is commonly held that the objection of lack of jurisdiction on grounds of connection may be raised ex officio and submitted by the parties even after the joinder of issue.