P8_TA(2017)0282

Common minimum standards of civil procedure

European Parliament resolution of 4 July 2017 with recommendations to the Commission on common minimum standards of civil procedure in the European Union (2015/2084(INL))

(2018/C 334/05)

The European Parliament,

— having regard to Article 225 of the Treaty on the Functioning of the European Union (TFEU),

— having regard to Article 67(4) TFEU and 81(2) TFEU,

— having regard to Article 19(1) of the Treaty of the European Union (TEU) and Article 47 of the Charter of Fundamental Rights of the European Union (the ‘Charter’),

— having regard to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and to the relevant case-law thereof,

— having regard to the working document on ‘Establishing common minimum standards for civil procedure in the European Union — the legal basis’ (1),

— having regard to the European Added Value Assessment study from the European Added Value Unit of the European Parliament Research Service (EPRS) entitled ‘Common minimum standards of civil procedure’ (2),

— having regard to the in-depth analysis from the Members’ Research Service of the EPRS entitled ‘Europeanisation of civil procedure: towards common minimum standards?’ (3),

— having regard to the in-depth analysis from the Directorate General for internal policies entitled ‘Harmonised rules and minimum standards in the European law of civil procedure’ (4),

— having regard to the European Law Institute (ELI)/ International Institute for the Unification of Private law (UNIDROIT) project on ‘From Transnational Principles to European Rules of Civil Procedure’,

— having regard to the American Law Institute (ALI)/ UNIDROIT ‘Principles of Transnational Civil Procedure’ (5),

— having regard to the ‘Study on the approximation of the laws and rules of the Member States concerning certain aspects of the procedure for civil litigation’, the so-called ‘Storme Report’ (6),

— having regard to the preliminary set of provisions for the Rules of Procedure of the Unified Patent Court,

— having regard to the Union acquis in the area of civil justice cooperation,

— having regard to the case-law of the Court of Justice of the European Union (CJEU) on the principles of national procedural autonomy and effective judicial protection (7),

— having regard to the 2016 EU Justice Scoreboard,

— having regard to the 2016 CEPEJ Studies No 23 on ‘European judicial systems: efficiency and quality of justice’,

— having regard to the 2016 ‘Judicial Training Principles’ of the European Judicial Training Network (8),

— having regard to its resolution of 2 April 2014on the mid-term review of the Stockholm programme (9),

— having regard to Rules 46 and 52 of its Rules of Procedure,

— having regard to the report of the Committee on Legal Affairs (A8-0210/2017),

CJEU case-law on national procedural autonomy and effective judicial protection

A. whereas according to the CJEU’s settled case-law on the principle of procedural autonomy, in the event of there being no Union rules on the procedural aspects of a dispute concerning Union law, Member States are responsible for designating the courts having jurisdiction and for determining the details regarding procedures to be followed in respect of actions initiated to ensure the protection of rights conferred by the Union;

B. whereas according to that same case-law, the application of national law as regards procedural rules is subject to two important conditions: national procedural rules cannot be less favourable when applied to disputes concerning Union law than when applied to similar actions of a domestic nature (the principle of equivalence) and should not be framed in such a way that they render the enforcement of Union rights and obligations impossible in practice or excessively difficult (the principle of effectiveness);

C. whereas in the absence of Union provisions harmonising procedural rules, the competence of Member States to lay down procedural rules for the enforcement of rights conferred by the Union does not extend to the introduction of new remedies in national legal orders to ensure the applicability of Union law (10);

D. whereas the body of case law established by the CJEU facilitates it in its cooperation with courts at Member State level, while improving understanding of Union law on the part of the citizens and of such courts;

The Charter

E. whereas the right to an effective remedy and to a fair trial, as enshrined in Article 47 of the Charter and in Article 6 ECHR, constitutes one of the fundamental guarantees for the respect of the rule of law and democracy and is inextricably linked to civil procedure as a whole;

F. whereas despite the fact that Article 47 of the Charter is binding, and Article 6 ECHR constitutes a general principle of Union law, the level of protection of the right to a fair trial in civil proceedings, and in particular the balance between the claimant's right of access to justice and the defendant's rights of defence, is not harmonised across the Union;

G. whereas nevertheless, as a fundamental right, the right to a fair trial has been supplemented by several procedural secondary Union law acts, including the Small Claims Regulation (11), the Legal Aid Directive (12), the Collective Redress Recommendation (13), the Consumer Injunctions Directive (14) and the Competition Damages Directive (15);

The Union acquis in civil justice cooperation

H. whereas Union citizens, especially those who move across borders, are currently far more likely to come into contact with the civil procedure systems of another Member State;

I. whereas minimum civil procedure standards at Union level could contribute to the modernisation of national proceedings, a level playing field for businesses and increased economic growth, by making judicial systems more effective and efficient, while at the same time facilitating citizens’ access to justice in the Union and helping to uphold the fundamental freedoms of the Union;

J. whereas increasingly, the Union legislature addresses issues of civil procedure not only horizontally, as in the case of optional instruments (16), but also in a sector-specific manner, within various policy fields, such as intellectual property (17), consumer protection (18) or, recently, competition law (19);

K. whereas the piecemeal nature of the harmonisation at Union level of procedural rules has been repeatedly criticised and the emergence of sector-specific Union civil procedure law challenges the coherence of both civil procedure systems at Member State level and the various Union instruments;

L. whereas the proposed directive is aimed at introducing a framework for civil justice adjudication by systematising existing Union rules of civil procedure and extending their scope of application to all matters falling within the scope of Union law;

M. whereas the proposed directive is designed to help to achieve a more coordinated, coherent and systematic approach to civil justice systems that is not limited by the borders, interests and resources of an individual country;

The legal basis of the proposal

N. whereas pursuant to Articles 4(1) and 5(1) TEU (principle of conferral) the Union may legislate in a given area only if it has explicit competence to do so and in so far as it complies with the principles of subsidiarity and proportionality;

O. whereas within the existing Treaty framework, the main legal basis for the harmonisation of civil procedure is provided for in Title V TFEU, in the Area of Freedom, Security and Justice;

P. whereas the requirement of a cross-border element for Union competence to be established has been maintained under the Lisbon Treaty, with the result that Union action in the area of civil justice is only possible if there are connecting factors in a case (e.g. residence, place of performance, etc.) involving at least two different Member States;

Q. whereas the general provision of Article 114 TFEU on the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market has been and is still being used as the legal basis for a wide range of sector-specific directives which harmonise certain aspects of civil procedure, such as for example the Intellectual Property Rights Enforcement Directive (IPRED) and the most recent Directive on Antitrust Damages;

R. whereas pursuant to Article 67(4) TFEU the Union should facilitate access to justice, particularly through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters, as exemplified in Article 81 TFEU;

Mutual Trust in the European Judicial Area

S. whereas the free movement of judicial decisions is intertwined with the need to create a sufficient level of mutual trust between judicial authorities of the various Member States as regards in particular the level of protection of procedural rights;

T. whereas ‘mutual trust’ is understood in this context as the confidence that Member States should have in each other's legal and judicial systems, and results in a prohibition on reviewing the actions of other States and their judiciaries;

U. whereas the principle of mutual trust serves to produce more legal certainty, providing citizens and businesses of the Union with sufficient stability and predictability;

V. whereas implementation of, and compliance with, the principle of mutual recognition of judgments, coupled with the approximation of laws, facilitates cooperation between the authorities and the legal protection of individual rights;

W. whereas a system of Union common minimum standards in the form of principles and rules, would serve as a first step 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;

X. whereas the existence of, and respect for, procedural guarantees for the efficiency and efficacy of civil proceedings and the equal treatment of the parties are desirable and indeed necessary to ensure mutual trust;

Y. whereas the enactment of such a system of common minimum standards would also set a minimum level of quality of civil proceedings across the Union, thus contributing not only to the reinforcement of mutual trust between judiciaries, but also to the smoother operation of the internal market, as it is estimated that the procedural differences among Member States may, inter alia, constitute disturbances to trade and can deter businesses and consumers from exercising their internal market rights;

Other considerations

Z. whereas the approximation of procedural regimes in the Union is necessary; whereas the proposed Directive is meant to be a first step in the process of further harmonisation and convergence of Member States’ civil justice systems and of the creation of a Union Code of Civil Procedure in the longer-term;

AA. whereas the proposed Directive does not affect either the judicial organisation of the Member States or the principal characteristics of the manner in which civil litigation is conducted but facilitates more efficient national procedural rules;

AB. whereas it is therefore of the utmost importance to adopt and to properly implement legislation providing for the adoption of common minimum standards of civil procedure in the Union;

CJEU case-law on national procedural autonomy and effective judicial protection

1. Notes the pivotal role of the CJEU in establishing the foundations of the Union civil procedure, having shaped the understanding of what civil procedure means for the Union legal system;

2. Underscores however that although some civil procedure standards which are nowadays accepted as part of the Union procedural system were affirmed in CJEU case-law, the contribution of the CJEU should ultimately be seen as standard-interpreting rather than standard-setting;

3. Stresses therefore that the rich experience of the CJEU in reviewing remedial and procedural rules as well as the compromises and the competing values the CJEU pursues are very instructive and should be taken into account for the purposes of introducing a horizontal umbrella instrument of a legislative nature containing common standards of civil procedure;

The Charter

4. Stresses that with regard to fair trial and access to justice, cooperation networks and databases enhancing judicial cooperation and exchange of information should be maintained and further expanded;

5. Warmly welcomes therefore the developments in e-justice, and most notably the creation of the European Judicial Network and of the European e-Justice Portal, which is to become a one-stop-shop in the area of justice in the Union;

The Union acquis in civil justice cooperation

6. Calls also on the Commission to assess whether further measures to consolidate and strengthen a horizontal approach to the private enforcement of rights granted under Union law should be proposed and whether the hereby-proposed common minimum standards of civil procedure could be seen as promoting and ensuring such a horizontal paradigm;

7. Reiterates that the systematic collection of statistical data on the application and performance of existing Union instruments in the area of civil justice cooperation is of the utmost importance;

8. Invites in this context the Commission to assess whether additional implementing measures by the Member States could contribute to the effective application of self-standing Union procedures and contends that a robust and systematic supervisory process on the part of the Commission should be established for that purpose;

The legal basis of the proposal

9. Observes that Article 114 TFEU (harmonisation of the internal market) has been used to adopt a number of Union acts with procedural implications; that Article 114 on the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market has been and is still being used as the legal basis for a wide range of sector-specific directives which harmonise certain aspects of civil procedure such as, for example, the Directive on the enforcement of intellectual property rights (IPR);

10. Notes, however, that Article 81 TFEU provides for the adoption of measures in the area of judicial cooperation in civil matters having cross-border implications, including measures for the approximation of the laws and regulations of the Member States, particularly when necessary for the proper functioning of the internal market; considers, therefore, that Article 81 TFEU constitutes the appropriate legal basis for the proposed legislative instrument;

11. Contends that the notion of ‘cross-border implications’ in the text of Article 81(1) TFEU regarding the adoption of civil justice cooperation measures should be construed in a broader manner and should thus not be perceived as synonymous with ‘cross-border litigation’ ;

12. Underlines that the current interpretation of the notion ‘matters with cross-border implications’ is rather narrow and has given rise to the creation of two sets of rules and two categories of litigants that might lead to further problems and unnecessary complexity; stresses that a broader interpretation should therefore be adopted;

13. Stresses in that context that the hereby proposed common minimum standards of civil procedure would lead to further efficiencies if Member States extended their scope of application not only to matters falling within the scope of Union law, but also to both cross-border and purely domestic cases generally;

Mutual Trust in the European Judicial Area

14. Notes that the main activities of the Union in the European Area of Justice as far as civil justice is concerned, relate to the introduction of instruments on jurisdiction, pendency and the cross-border enforcement of judgments;

15. Reiterates and underlines that the free circulation of judgments has increased mutual trust between the judiciaries of the Member States, thus increasing legal certainty and providing sufficient stability and predictability for citizens and businesses in the Union;

16. Emphasises in that respect that mutual trust is a complex notion and that many factors play a role in building that trust, such as judicial education, cross-border judicial cooperation and exchange of experience and best practices between judges;

17. Notes that mutual trust may be fostered inter alia by non-legislative methods, such as judges cooperating within the European Judicial Network or participating in training;

18. Welcomes therefore the nine judicial training principles adopted by the European Judicial Training Network at its 2016 General Assembly, in that they provide a common foundation and framework for Europe’s judiciary and judicial training institutions alike;

19. Contends, nevertheless, that from a strictly legal viewpoint mutual trust presupposes, at a very fundamental level, that the judiciaries of the Member States perceive each other's procedural arrangements, both on the level of the law in the books and of law in action, as guaranteeing fair civil proceedings;

20. Points out therefore, that the elaboration of systematic, minimum standards of Union civil procedure in the form of an across-the-board horizontal directive, would lead to increasing mutual trust among the judiciaries of the Member States and ensure a common, Union-wide balancing of fundamental procedural rights for civil cases, creating a more deeply rooted general feeling of justice, certainty and predictability throughout the Union;

Common minimum standards of civil procedure

21. Emphasises that effective civil procedure systems play a crucial role for upholding the rule of law and the Union’s fundamental values. They are also a prerequisite for sustainable investment and a business- and consumer- friendly environment;

22. Considers that the lack of clarity about limitation periods for citizens, consumers and companies in disputes having cross-border implications can hinder access to justice. Calls thus on the Commission and Member States to assess the feasibility and desirability of harmonising those limitation periods in civil proceedings;

23. Finds that there is a clear need for legislation to provide for a set of procedural standards applicable to civil proceedings and calls on the Commission to proceed with the delivery of its action plan for the implementation of the Stockholm programme adopted by the European Council in the area of freedom, security and justice;

24. Pursuant to Article 225 TFEU, requests therefore that the Commission submit by 30 June 2018, on the basis of Article 81(2) TFEU, a proposal for a legislative act on common minimum standards of civil procedure, following the recommendations set out in the Annex hereto;

25. Confirms that the recommendations annexed to this resolution respect fundamental rights and the principles of subsidiarity and proportionality;

26. Considers that the requested proposal does not have financial implications, as the introduction of minimum standards of civil procedure will lead to economies of scale in terms of reduced costs for litigants and their representatives who will not need to familiarise themselves with a different country’s civil procedure regime;

o

o o

27. Instructs its President to forward this resolution and the accompanying recommendations to the Commission and the Council, and to the parliaments and governments of the Member States.

(1) PE 572.853, December 2015.

(2) PE 581.385, June 2016.

(3) PE 559.499, June 2015.

(4) PE 556.971, June 2016.

(5) Uniform Law Review, 2004(4).

(6) M. Storme, Study on the approximation of the laws and rules of the Member States concerning certain aspects of the procedure for civil litigation (Final Report, Dordrecht, 1994).

(7) See inter alia: judgment of 16 December 1976, Comet BV v Produktschap voor Siergewassen, 45/76, ECLI:EU:C:1976:191 and judgment of 15 May 1986, Marguerite Johnston v Chief Constable of the Royal Ulster Constabulary, 222/84, ECLI:EU:C:1986:206.

(8) Available online here: http://www.ejtn.eu/PageFiles/15756/Judicial%20Training%20Principles_EN.pdf

(9) Texts adopted, P7_TA(2014)0276.

(10) See inter alia: judgment of 13 March 2007, Unibet (London) Ltd and Unibet (International) Ltd v Justitiekanslern, C-432/05, ECLI:EU:C:2007:163.

(11) Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure (OJ L 199, 31.7.2007, p. 1).

(12) Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes (OJ L 26, 31.1.2003, p. 41).

(13) Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law (OJ L 201, 26.7.2013, p. 60).

(14) Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on injunctions for the protection of consumers’ interests (OJ L 110, 1.5.2009, p. 30).

(15) Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union (OJ L 349, 5.12.2014, p. 1).

(16) See for instance the European Small Claims Regulation (see second footnote in recital G above) and the European Account Preservation Order Regulation (Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters (OJ L 189, 27.6.2014, p. 59)).

(17) Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (OJ L 157, 30.4.2004, p. 45).

(18) see fourth footnote to Recital G above.

(19) see fifth footnote to Recital G above.