COMPETENCE. – A term used in legal language to denote the specific objective capacity of the various judicial organs, that is, that portion of the power of jurisdiction which in concreto belongs to each of them.
For canon law, no less than for civil law, competence is determined on the basis of four fundamental criteria: functional, objective, subjective, and territorial. The functional criterion (competence by degrees) concerns the nature of the activity which the judge is called upon to exercise in a given process, in correlation with the principle of the plurality of instances. The objective criterion regards the value of the cause or the special nature of its object (competence by matter and value). The subjective criterion pertains to the particular quality and dignity of certain persons, in the event that they become subjects of a procedural relationship. The territorial criterion, finally, refers to the district within which the judge’s activity must be exercised (competence by territory).
Of these criteria (which often overlap and combine with one another, so as to preclude a rigorous classification of the various titles of competence), the first three are absolute, that is, they are not subject to derogation or postponement by the parties (can. 1558); the fourth, however, is relative (can. 1559 § 2). It follows that incompetence by matter and by personal dignity must be raised ex officio by the judge, may be pleaded by the parties at any stage or state of the proceedings (can. 1628 § 2), and constitutes a ground for an irremediable nullity of the sentence (can. 1829 n. 1); whereas incompetence by territory, if not raised or pleaded at the threshold of the suit, does not prevent the valid continuation of the trial.
Competence is generally established by law (legal forum); exceptionally, however, it may be determined by the superior or by the judge (commissory or judicial forum). According to the present law, the parties themselves cannot, on their part, derogate from the norms on competence (can. 1559 § 1), except in the case where, in stipulating a contract, they have elected a particular forum for controversies arising therefrom (can. 1565 § 2).
I. FUNCTIONAL COMPETENCE
Although not expressly regulated by the CIC under the title De foro competentia, it is beyond doubt that function constitutes an indispensable prerequisite of a judgment on the merits, by virtue of the principle of the plurality of degrees of jurisdiction.In every diocese, the ordinary judge of first instance is the Ordinarius loci (that is, besides the residential bishop, the capitular vicar, the abbot or prelate nullius, and the apostolic administrator permanently constituted), who exercises judicial power either personally or through the tribunal (can. 1572 ff.). However, competent to hear in first instance controversies concerning the temporal rights and goods of the bishop, the episcopal table, or the diocesan curia, is the judge immediately superior, or, if the bishop consents, the diocesan collegial tribunal, composed of the officialis and the two senior synodal judges (can. 1572 § 2).
The ordinary judge of second instance is the metropolitan for causes decided by a suffragan bishop; whereas causes tried in first degree before the metropolitan shall be judged on appeal by that Ordinarius loci whom the metropolitan himself shall have designated once and for all, with the approval of the Apostolic See.
For controversies between exempt religious and between religious causes, special jurisdictions of first and second degree are provided for by the CIC, which also determines the particular attributions of the ordinary tribunals of the Apostolic See, namely the Sacred Roman Rota (v. ECCLESIASTICAL) and the Signatura (v.).
Inderogable limits of functional competence must also be considered those within which the judge exercises his jurisdictional power on the occasion of the correction of a sentence (for which the judge who issued it is competent) and of certain extraordinary means of appeal, querela (v.) of nullity, the opposition of a third party (v.), and the restitutio in integrum (v.). Likewise, competence in matters of execution must be deemed to be determined on the basis of the functional criterion.
II. SUBJECTIVE AND MATTER-BASED COMPETENCE
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 the exclusive competence of the same Pontiff is reserved for causes concerning heads of state, their children and successors, cardinals, papal legates, and, with regard to penal causes, residential and titular bishops. To the tribunals of the Apostolic See, on the other hand, are reserved (can. 1557 § 2) contentious causes in which residential bishops and dignitaries equated to them are defendants, with regard to their temporal goods and personal rights; as well as those which concern dioceses or other moral persons directly subject to the Supreme Pontiff, such as exempt religious institutes, religious congregations, etc.Apart from these specific and inderogable provisions, it is to be noted that, by virtue of his immediate jurisdiction over all the faithful, the Pope may, either on his own initiative or at the instance of a party, take cognizance of any judgment, at whatever stage or degree it may be.
In numerous cases the object of the cause, independently of the consideration of the parties, influences the determination of competence. Thus, the Congregation of the Holy Office has cognizance of criminal causes concerning heresy, sacrilege, simony, violation of the sacramental seal, solicitation in confession, etc., and of contentious causes concerning the Pauline privilege and the nullity of marriages between Catholics and non-Catholics. The Congregation of Rites is reserved the causes of beatification and canonization. The Congregation of the Sacraments is competent to judge processes “super matrimonio” and it is not permitted to bring such causes in which the validity of Holy Orders is at issue. For causes of nullity of marriage to be decided in Italy, competence 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 causes, however, the law establishes a necessary forum, in the sense that they must be instituted before a determined judge. These are, according to can. 1560: 1) actions of spoliation, for which competence belongs to the Ordinary of the place where the thing whose possession is in dispute is located; 2) causes concerning a benefice, even non-residential, for which the Ordinary of the place where the benefice is instituted is competent; 3) causes relating to the administration of goods, which must be decided by the Ordinary of the place where the administration was conducted; 4) causes concerning inheritances or legacies, which belong to the competence of the Ordinary of the place of the testator’s domicile, unless it is a matter of simple execution of a legacy.
Apart from these exceptions, the territorial competence of the judge is determined, in general, by the domicile (v.) or quasi-domicile (v.) of the defendant (can. 1561). Both one and the other, whether real or legal, constitute concurrent forums; their choice, in the individual case, is left to the discretion of the plaintiff.
Moreover, anyone present in Rome may be summoned before the tribunals of the Urbe, but has the right to request that the cause be remitted to his own Ordinary; and anyone who has sojourned in Rome for more than a year may decline the forum of his own Ordinary and request to be cited before the Roman judge (can. 1564).
A vagus (i.e., one who has no domicile or quasi-domicile) must be cited before the judge of the place where he currently resides; whereas for a religious, whether of simple or solemn vows, the competent forum is that of the place where the house to which he is attached is located (can. 1563).
In concurrence with the forum of the defendant, the law establishes in certain cases an optional forum. Thus, actions relating to real rights may be brought before the judge of the place where the disputed property is located (can. 1564); for causes arising from a contract, the party may be sued before the court of the place where the obligation arose or is to be fulfilled (can. 1565 § 1); in criminal causes, the judge of the place where the crime was committed is competent, in addition to the judge of the domicile or quasi-domicile, even if the offender has since departed from that place (can. 1566); in matrimonial causes, the judge of the place where the marriage was celebrated is also competent (can. 1964).
IV. C. BY CONNECTION OR CONTINENCE OF CAUSES. — When two or more suits have in common some of the objective and subjective elements (res, causa petendi, persona) constituting the respective claims, the case of connection arises; this assumes the specific form of “containment of cause” whenever, the parties being identical, the objective elements stand in a relationship of container to contained.
Reasons of expediency and procedural economy recommend that connected causes be decided by the same judge; and this is precisely what can. 1567 prescribes. If they are already pending before different judges, they must be joined according to the criterion of prevenzione; that is, the judge who first cited the defendant shall be competent to hear them in a single proceeding, provided, of course, that no obstacle arises from the limits assigned to his competence by reason of function or subject matter (can. 1568).
It is the common opinion that the exception of incompetence on grounds of connection may be raised ex officio and proposed by the parties even after joinder of issue.