Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Directive of the European Parliament and of the Council on certain aspects of mediation in civil and commercial matters
Date: 2008-03-07
Institutions: European Commission
Subjects: access to the courts, associated action for damages, civil proceedings, commercial law, cross-border cooperation, judicial proceedings, legal cooperation

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 7.3.2008 
COM(2008) 131 final 

2004/0251 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Directive of the European 
Parliament and of the Council on certain aspects of mediation in civil and commercial 
matters 

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   EN 

 
 
 
  
 
 
2004/0251 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning the 

common position of the Council on the adoption of a Directive of the European 
Parliament and of the Council on certain aspects of mediation in civil and commercial 
matters 

1. 

BACKGROUND 

Date of transmission of the proposal to the EP and the Council 
(document COM (2004)718 final – 2004/0251 (COD): 

Date of the opinion of the European Economic and Social 
Committee: 

22.10.2004 

9.6.2005 

Date of the opinion of the European Parliament, first reading: 

29.3.2007 

Date of adoption of the common position: 

28.2.2008 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

On  22  October  2004,  the  Commission  adopted  a  proposal  for  a  Directive  of  the  European 
Parliament and of the Council on certain aspects of mediation in civil or commercial matters. 
The  purpose  of  the  proposed  Directive  is  to  facilitate  access  to  dispute  resolution  and  to 
promote  the  amicable  settlement  of  disputes  by  encouraging  the  use  of  mediation  and  by 
ensuring  a  sound  relationship  between  mediation  and  judicial  proceedings.  The  proposal 
constitutes one of the follow-up actions to the Green Paper on alternative dispute resolution 
presented  by  the  Commission  in  2002,  the  other  being  the  European  Code  of  Conduct  for 
Mediators, established by a group of stakeholders with the assistance of the Commission and 
launched in July 2004. 

3. 

COMMENTS ON THE COMMON POSITION 

The  Commission  proposal  covered  the  use  of  mediation  in  both  cross-border  and  internal 
disputes  because  it  considered  that  it  would  be  neither  feasible  nor  desirable  to  promote 
mediation only in relation to disputes that display a cross-border element. 

However, the text of the Council's common position is the result of negotiations between the 
three institutions and a majority in both the Council and the European Parliament supported 
limiting the scope of the Directive to cross-border cases because of a restrictive interpretation 
of Article 65 of the EC Treaty. In view of these circumstances and in a spirit of compromise, 
the  Commission  accepts  the  definition  of  the  scope  of  the  Directive  as  presented  in  the 
common  position  provided  that  the  definition  of  cross-border  cases  is  as  broad  as  possible. 
The Commission considers that the common position enlarges the definition of cross-border 

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cases  with  respect  to  the  two  most  important  Articles  of  the  Directive,  i. e.  Article 7 
(confidentiality) and Article 8 (limitation and prescription periods). 

As to the provisions on limitation and prescription periods in Article 8, the common position 
does  not  harmonise  national  rules  on  limitation  and  prescription  periods  but  obliges  the 
Member States to ensure that their rules on limitation and prescription periods do not prevent 
the  parties  from  going  to  court  or  to  arbitration  if  their  mediation  attempt  fails.  A  recital 
clarifies that this result has to be achieved despite the differences in national legislation. The 
common position therefore fulfils the same objective as the initial Commission proposal. 

The Council’s common position differs from the opinion of the European Parliament in first 
reading in particular with respect to the following amendment proposals. 

The  common  position  does  not  allow  for  an  implementation  of  the  Directive  through 
voluntary  agreements  between  the  parties.  The  Commission  fully  agrees  with  this,  as  the 
Directive affects rules on judicial proceedings in the Member States which cannot always be 
modified by agreements between the parties. 

The obligation to publish the European Code of Conduct for Mediators in the Official Journal, 
which was prevented by the fact that the Code of Conduct is not an act of the institutions, has 
been replaced by an obligation to publish the Code of Conduct on the Internet. In addition, the 
Commission is committed to including a reference to the Code of Conduct in the EU-Bulletin 
when it will inform about the adoption of the Directive. These obligations are acceptable to 
the Commission. 

As to the review clause in Article 11, the common position requires the Commission's report 
to  consider  the  development  of  mediation  throughout  the  European  Union,  which  is 
acceptable to the Commission. 

Overall,  the  Commission  can  accept  the  common  position  which,  although  modifying  some 
features  of  the  initial  Commission  proposal,  remains  faithful  to  the  objective  of  facilitating 
access  to  dispute  resolution  and  of  promoting  the  amicable  settlement  of  disputes  by 
encouraging the use of mediation and by ensuring a sound relationship between mediation and 
judicial proceedings. 

4. 

CONCLUSION 

The Commission accepts the common position in the light of the fact that it includes the key 
elements of its initial proposal. 

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