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Opinion of the European Economic and Social Committee on the Proposal for a Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters

(COM(2004) 718 final – 2004/0251 (COD))

(2005/C 286/01)

On 16 November 2004, the Council decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 23 May 2005. The rapporteur was Ms Sánchez Miguel.

At its 418th plenary session, held on 8 and 9 June 2005 (meeting of 9 June), the European Economic and Social Committee adopted the following opinion by 157 votes to 1 with 1 abstention.

1.   Introduction

2.   Substance of the proposal

3.   Comments on the proposal for a directive

4.   Specific comments

Given that mediation is a voluntary dispute settlement procedure which can only work if both parties agree to participate and to accept the outcome, the future Directive should clarify some extremely important aspects, to ensure that this is a workable instrument and that it inspires confidence in the European public. To this end, the EESC considers that account should be taken of some of the following observations.

Brussels, 9 June 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

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(1)  See the Council Directive on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters [COM(1999)219 final]. EESC opinion, rapporteur: Mr B. Hernández Bataller. OJ C 368, 20.12.1999.

(2)  EESC opinion, rapporteur: Mr H. Malosse, OJ C 117, 26.4.2000.

(3)  COM(2000) 592 final. EESC opinion, rapporteur: Mr D. Retureau, OJ C 139, 11.5.2001.

(4)  Commission Recommendation of 4 April 2001 on the principles for out-of-court bodies in the consensual resolution of consumer disputes. OJ L 109, 19.4.2001.

(5)  Opinion CESE, point 3.7, rapporteur: Mr D. Retureau. OJ C 139, 11.5.2001.

(6)  The Brussels Convention of 27 September specified the scope of jurisdiction in civil and commercial matters.

(7)  The EESC opinion (rapporteur: Mr Retureau, OJ C 139, 11.05.2001) referred in point 3.7 to the problem of defining the civil and commercial spheres, and called for ‘the decision to make specific reference to the Court of Justice definitions. Since civil actions heard in the context of criminal and tax cases do not fall outside the scope of the proposal, and it is also possible that documents which cannot easily be defined in legal terms by the appropriate legal body may be requested, an indent along the following lines should be inserted in order to protect the rights of the parties involved: “the receiving agency shall define as flexibly as possible those documents whose legal character cannot be clearly assigned to either the civil or the commercial field, but which nevertheless have points in common with them”.’

(8)  The German version of the proposed Directive frequently uses the term ‘Streitschlichtung’ (dispute resolution). Dispute resolution cannot be considered the same as mediation because the resultant decision is at the least a reasoned proposal by the arbitrator aimed at resolving the conflict, while a mediator traditionally does not adopt any position as to the substance of the conflict. Consequently the German version of the draft Directive should use the term ‘amicable settlement’ instead of ‘dispute resolution’.

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