Establishing common minimum standards for civil procedure in the EU - the legal basis

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The Committee on Legal Affairs of the European Parliament has released on 21 December 2015 a working document on establishing common minimum standards for civil procedure in the European Union – the legal basis (Rapporteur: MEP Emil Radev). The working document states that the free movement of judicial decisions is associated with the need to create a sufficient level of mutual trust between judicial authorities of different Member States, in order to serve for more legal certainty and thus provide citizens and businesses of the Union with sufficient stability and predictability. It is submitted that “the time has come for a legislative proposal setting out common minimum standards of civil procedure law”. It would take the form of principles and rules and serve as a basis for convergence of national regulations concerning civil procedure, establishing a balance between the fundamental rights of litigants in the interest of full mutual trust between the judicial systems of the Member States. This working document fully demonstrates that the abolition of the exequatur was only in appearance justified by an increased efficiency of judgments and in reality was a way to establish harmonisation of civil procedure (see E. Guinchard, Chronicle on European Civil Justice, RTDE 2010-4, p. 929).

The working document considers three legislative options. First of all, the 'optional instruments' approach, i.e. certain types of procedure are unified at EU level, and the judgments issued will benefit from mutual trust since they are based on a uniform set of procedural principles. The problem is that these optional instruments rely on to a large extent upon background rules of national procedural law (e.g. on the composition of the court, and detailed rules on evidence). A second option is the introduction of common (minimum) standards by way of directives. Until now, this has been done in two ways: by way of (1) sector-specific directives and (2) piecemeal horizontal directives, which address a given aspect of civil procedure in a non-sector-specific (i.e. horizontal) way, but are nevertheless limited to specific aspects of civil procedure (e.g. legal aid, mediation). A third option is to adopt an across-the-board horizontal approach, which would not only be horizontal, but also address the fundamental principles of a fair civil procedure in a comprehensive way.

The working document concludes that harmonising national civil procedure is of crucial importance. In contrast to optional instruments, which create a set of civil procedural rules working in parallel with national legal regimes, harmonising instruments touch upon national civil procedure and oblige Member States to approximate their respective national rules in order to conform to the EU model. This process of harmonisation can take place in two ways: sector-specific instruments based on Article 114 TFEU, thus addressing civil-procedural aspects of certain types of claims under EU law; or horizontal instruments, harmonising national civil procedural laws with cross-border implications regardless of subject matter (the most appropriate legal basis will vary). The creation of minimum standards in civil proceedings does not happen overnight but the working document starts the process.

(Altalex, 22 February 2016. Article by Emmanuel Guinchard)

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