History in the making: a proposal for ‘Common minimum standards of civil procedure’ in the European Union

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On 28 February 2017, MEP Emil Radev presented his draft report of 10 February 2017 on ‘Common minimum standards of civil procedure’. He requests that the Commission submit a proposal for a directive setting minimum rules on inter alia effective judicial protection, oral hearings, provisional and protective measures, case management, court experts, funding of proceedings and judicial training.

The aim is to approximate procedural systems. The suggested Directive should apply in disputes having cross-border implications, to civil and commercial matters, whatever the nature of the court or tribunal, except as regards rights and obligations, which are not at the parties’ disposal under the relevant applicable law.

Many provisions are worth mentioning and only a selection will be. For example, Article 5 states that Member States shall ensure that oral hearings be held by making use of any appropriate distance communication technology, such as videoconference or teleconference, available to the court or tribunal, unless the use of such technology, on account of the particular circumstances of the case, is not appropriate for the fair conduct of the proceedings. It adds that where the person to be heard is domiciled or habitually resident in a Member State other than the Member State of the court or tribunal seized, that person's attendance at an oral hearing by way of videoconference, teleconference or other appropriate distance communication technology shall be arranged by making use of the procedures provided for in Regulation (EC) No 1206/2001, the Evidence Regulation.

Sometimes existing law in many States seem to already comply with the suggested Directive (at least in theory), whether it is the fact that proceedings should be public or the judiciary independent and impartial (Articles 21 and 22). For example, provisional measures for the preservation of a factual or legal situation should be in place so as to secure the full effectiveness of a later judgement on the substance of the matter prior to initiating proceedings on the substance of the matter and at any stage during such proceedings (Article 6). These measures should also include measures for the prevention of any imminent infringement or for the immediate termination of an alleged infringement as well as for the preservation of assets necessary to secure that the subsequent enforcement of a claim will not be impeded or made substantially more difficult. Such measures should observe the rights of the defence and be proportionate to the characteristics and severity of the alleged violation, allowing where appropriate the provision of guarantees for the costs and the injury caused to the defendant by unjustified requests. In duly justified cases, provisional measures may be taken without the defendant having been heard, where any delay would cause irreparable harm to the applicant, or where there is a demonstrable risk of evidence being destroyed. In such an event, the parties shall be so informed without undue delay after the execution of the measures at the latest.

Occasionally, efforts may be needed. For example, Article 8 states that Member States shall ensure that Courts provide sufficiently detailed reasoned decisions within a reasonable time. The suggested Directive may also take a side on much debated issues such as the role of the Court: “Member States’ courts shall ensure that courts actively manage the cases before them in order to ensure fair, efficient and at reasonable speed disposition of disputes, without impairing the freedom of the parties to determine the subject-matter of, and the supporting evidence for, their case” (Article 9).

At times, it may be revolutionary despite the technical appearance. Such is Article 23 which imposes “the mastering of a foreign language and its legal terminology” as part of judicial training. Since this training should be “practice orientated” it is clear that this foreign language is designed to be used (why else train anyway?). Given the largely dominant existing practice in EU-funded judicial training, this foreign language is English: slowly but surely those in ‘European’ circles who believe that European languages such as Italian, French, Spanish or German are totally archaic and should be set aside are implementing their views. EU Law may have abolished discrimination by nationality but one wonders if some EU institutions are not replacing it, in effect, with linguistic discrimination. More and more, two classes of EU citizens are appearing: on the one hand, those who are able to speak English at a decent level and accept to abandon their mother tongue, on the other hand, the others. It is submitted that it is such a fundamental move that only an EU-wide referendum (with a clear and explicit question on whether English should become the only language of the EU) may provide legitimacy for it.

(Altalex, 27 March 2017. Article by Emmanuel Guinchard)

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