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))
Date: 2005-06-09
Institutions: European Economic and Social Committee
Subjects: European judicial area, civil procedure, civil proceedings, legal system, mediator, trade dispute

17.11.2005

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Official Journal of the European Union

C 286/1

II

(Preparatory Acts)

EUROPEAN ECONOMIC AND SOCIAL COMMITTEE

418th PLENARY SESSION, HELD ON 8 AND 9 JUNE 2005

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

and information networks are strengthened by means of the
new technologies made available to the European public.

1.1
Since the Tampere Council of 15 and 16 October 1999,
the European Commission has embarked upon a process to
create and harmonise legal instruments making it possible to
develop an area of freedom, security and justice, in which the
free movement of persons is ensured, within the limits of the
European Union. Previously (1), the Council had presented rele-
vant provisions to facilitate the service of judicial and extrajudi-
enhancing this
cial documents between Member States,
measure by ensuring improved information for citizens.

1.3 With regard to the first topic, the Council Regulation on
jurisdiction and the recognition and enforcement of judgements
in civil and commercial matters (2) was submitted. Among
other things, this provides for the simplification of the exequatur
procedure, adaptations to the protective measures which will
facilitate the enforcement of the resolutions, and the recogni-
tion of a writ of enforcement effective in Europe.

1.2
As a result of the Tampere Council, the Commission has
called on Member States to implement procedures to recognise
and enforce the resolutions, along with alternative, out-of-court
procedures for resolving disputes in civil and commercial
matters, in order to improve the operation of judicial systems
in every Member State, while European data-gathering systems

1.4
In a similar vein, the Commission presented a proposal
for a Decision relating to the creation of a European Judicial
Network in civil and commercial matters (3). This aims to set
up a European instrument for judicial cooperation in order to
inform private
and
individuals, professionals,
administrations about the laws and procedures applicable in
each State, in civil and commercial matters, which would be
particularly useful in settling cross-border disputes.

institutions

(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.

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1.5
Following the Commission's submission, in 2002, of the
Green Paper examining an alternative approach to settling
disputes in the EU, in which both Member States and interested
parties were extensively consulted, the proposal for a directive
now under discussion has been drawn up as a useful instru-
ment designed to achieve effective results, while safeguarding
the inherent characteristics of national law on dispute settle-
ment in civil and commercial matters.

1.6 With regard to the above point, the practice of media-
tion in consumer matters (4) is a useful precedent; over time it
has proved very practical, partly due to its incorporation into
consumer protection laws. This system has successfully adapted
to new consumer habits, so that it can be applied to various
areas involving services as well as goods.

1.7 Mediation in civil and commercial matters by means of
judicial proceedings has certain characteristic features that
make it quite distinct from other forms of mediation. Each
State has sole responsibility for its judicial system and media-
tion is a valuable method for settling disputes only if the liti-
gant parties consent to it. Both of these characteristic features
impose constraints on the Commission's powers to flesh out a
proposal for a Directive. Nevertheless, the aim is to provide
alternative dispute-settlement practices, but, as the Commission
points out, Member States must guarantee and maintain an
‘effective and fair legal system’ that meets the basic require-
ments for protection of human rights.

2. Substance of the proposal

The aim of this proposal for a directive is to facilitate,
2.1
through mediation, the settlement of disputes in the field of
civil and commercial law that may arise in the internal market.
This involves defining the concept of mediation – and mediator
– whilst leaving it to Member States to lay down the detailed
the characteristics
judicial arrangements and,
required of mediators.

in particular,

2.2 Mediation can be carried out voluntarily, at the request
of the parties, or be initiated as a result of the legal proceed-
ings. The request may therefore be made by the parties or by
the courts. In both cases, the parties submit to mediation as a
means of avoiding legal proceedings or, once these have begun,
the
of simplifying them by complying with the results of
mediation. In both cases, the parties can call for the enforce-
ment of the settlement reached by means of a judgment, deci-
sion or authentic instrument.

2.3
The content of the acts of mediation may not be used as
evidence in the judicial proceedings in the cases set out in
Article 6(1), thus protecting the confidentiality of the parties

(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.

and those involved in the mediation process. However, it may
be used if the parties and the mediator agree and, especially, if
this is to protect minors or prevent harm to the physical or
psychological integrity of a person.

Periods of prescription or

limitation applicable to
2.4
actions resulting from the proceedings brought are suspended
during mediation from the moment
the parties or courts
request it.

3. Comments on the proposal for a directive

3.1
The EESC believes that this initiative by the Commission
is a useful instrument, which will further the actions under-
taken at the Tampere Council to increase legal certainty in the
EU. A European legal
framework for civil and commercial
mediation involves incorporating an instrument already in use
in some Member States – albeit mainly in the private dispute
settlement sphere - into judicial proceedings. This will provide
a system enabling courts to propose a mediator external to the
proceedings, thus making it easier to settle disputes by agree-
ment between the parties.

3.2
The proposal for a directive aims to increase the use of
mediation in judicial proceedings within the EU. This will bring
advantages both in economic terms, by reducing the cost of
terms, by shortening otherwise
proceedings, and in social
lengthy civil proceedings, which can have damaging conse-
quences for the parties (particularly family law cases), with the
ensuing social problems that litigants often face. At all events,
mediation should not be confused with the conciliation proce-
dures commonly used in most Member States before legal
proceedings begin, as it is the parties and their lawyers, under
the auspices of the judge, who will try to reach agreement in
order to avoid proceedings.

3.3
The mediator is an important factor in achieving a good
result. The trustworthiness and fairness of his or her handling
of the matter and, most particularly, his or her independence in
relation to the litigant parties, as well as his or her duty of
professional secrecy during mediation, improve the mediation's
effectiveness and make a positive outcome more likely.
in Article 4 of the proposal, the conditions and
However,
requirements are left up to the Member States, with the
emphasis on self-regulation at Community level, and particu-
larly European codes of conduct. Although the proposal for a
directive is not exclusively geared to mediation in cross-border
disputes, there will be a need to train those appointed as
mediators in Community law and, above all, to create a legal
framework that ensures the availability of this service in all
Member States.

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3.4
In mediation, it is essential to guarantee the quality of
the service rendered. Therefore, the proposal should contain
guidelines for a basic harmonisation of requirements for prac-
for mediators to be
tising as a mediator. The requirement
competent and independent, in line with the recommendations
for mediation in consumer matters would be one such prere-
quisite, and could be achieved through greater European coop-
eration aimed at more uniform mediator training and appoint-
ment systems.

commercial law, Article 1(2) should establish the framework's
scope and should not adopt the negative formula set out in
recital (8). Furthermore, account should be taken of civil and
commercial actions resulting from other areas, such as tax and
administrative matters and even of civil actions resulting from
criminal actions (7).

3.5 Matters covered by mediation in civil and commercial
law are defined in negative terms. Thus the eighth recital
excludes ‘processes of an adjudicatory nature such as arbitra-
tion, ombudsmen schemes, consumer complaint
schemes,
expert determination or processes administered by bodies
issuing a formal recommendation, be it legally binding or not,
as to the resolution of the dispute’. This is presumably because
there is a specific mediation procedure for each of the cases
mentioned. However, we should not rule out the possibility of
mediation in civil actions deriving from criminal or tax cases (5)
which, although originally excluded, could help these civil
actions to be resolved.

3.6
The EESC agrees with the rule preserving the highest
level of confidentiality of data, both civil and commercial,
handled during the mediation process (Article 6(1)), as regards
both personal data and those aspects concerning the confidenti-
ality of relations; however, under no circumstances may the
exclusion of such data as evidence be invoked if the rights of
minors or the physical or psychological
integrity of persons
involved in the dispute are thereby threatened.

4. Specific comments

Given that mediation is a voluntary dispute settlement proce-
dure 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.

4.1
The proposed legal framework for mediation has limited
power in civil and commercial matters (6) but, despite the enor-
mous volume of case law on matters covered by civil and

(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.

4.1.1
In the future, in the light of the experience of media-
tion carried out in accordance with the proposal, the possibility
could be considered of extending its scope to cover administra-
tive and tax powers.

One potential problem arises

4.2
from the differences
between the various language versions of the proposal, which
could complicate its transposition (8). Account must be taken of
the fact that the organisation of the judicial system falls within
the sole competence of each Member State and that legal prac-
tices may thus vary from one State to another. It would have to
be made clear that it is not only law courts that can recom-
mend mediation but also judicial bodies and also that these
should not be the only bodies with the right to ensure compli-
ance with the mediation agreement. Any public body entitled
under national legislation to carry out such action has the right
to do so.

are

4.3
The EESC wishes to insist on the importance of the
mediator throughout the process, in order to ensure that the
proceedings
effective. The
carried through and are
Committee therefore considers that the Commission should
propose guidelines that will guarantee both a degree of harmo-
nisation between Member States and the authority and quality
of mediators. The minimum requirements for mediators to be
included under Article 4 should include the following:

— suitable qualification and training in the subjects of the

mediation;

(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 docu-
ments which cannot easily be defined in legal terms by the appro-
priate 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 ‘amic-
able settlement’ instead of ‘dispute resolution’.

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— independence and impartiality in relation to the litigant

parties;

— transparency and accountability in their actions.

In particular, the freedom to provide services should be guaran-
teed in all Member States, which would, in smaller countries,
ensure the independence of the mediator with regard to the
parties involved.

4.3.1
The Committee broadly welcomes the option of a
European code of conduct as a means of setting the rules for
mediators, although for this code to be valid, the Commission
– the relevant body in this case - would have to consider the
fact that the professionalism, independence and accountability

of persons, both natural and legal, practising as mediators
should always be guaranteed as proposed in relation to Article
4.

4.4
Depending on the specific judicial characteristics of each
State, the problem posed by the cost of mediation cannot
simply be solved by including this in the general court costs.
There should be a requirement either for tariffs in proportion
to the issue in question and its scale or, alternatively, a manda-
tory advance payment that would enable the parties to decide
whether or not it was worthwhile proceeding. In any event, the
procedure should never be more costly to the parties than judi-
cial proceedings.

Brussels, 9 June 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the
European Parliament and of the Council on compulsory licensing of patents relating to the manu-
facture of pharmaceutical products for export to countries with public health problems

(COM(2004) 737 final – 2004/0258 (COD))

(2005/C 286/02)

On 15 December 2004, the Council decided to consult the European Economic and Social Committee,
under Article 251 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 Mr Braghin.

At its 418th plenary session, held on 8 and 9 June 2005 (meeting of 8 June), the European Economic and
Social Committee adopted the following opinion by 64 votes to one with one abstention.

1. Gist of the opinion

Furthermore, the EESC recommends strengthening the

1.3
operational provisions in order to ensure:

the

The

EESC endorses

European Commission's
1.1
proposal, which aims to implement
the Decision that was
adopted by the WTO General Council on 30 August 2003. It
also appreciates the Commission's active role - with interna-
tional bodies and other stakeholders - in seeking appropriate
solutions to the serious health problems affecting developing
countries with no pharmaceuticals production capacity and
inadequate health structures.

— full compliance with current legislation, particularly in rela-

tion to production quality control,

— that the conditions for compulsory licensing are reinforced
(Article 8), particularly in relation to the arrangements used
to differentiate between a licensed pharmaceutical product
and its original, in order that illegal re-export within the EU
or to third countries is avoided,

The EESC supports both the procedure governing the
1.2
compulsory licensing of pharmaceutical products covered by a
patent or a supplementary protection certificate and the chosen
control arrangements.

— a coordinated effort with the authorities of the importing
countries in order to avoid fraud, counterfeiting and uses
other than those originally provided for,