European Added Value Assessment
PE 581.385 22
decisions and mutual trust between justice authorities in different EU countries. In a genuine
European judicial area citizens should be able to assert their rights anywhere in the Union.’
Mutual recognition, mutual trust, and the idea of the European judicial area lie at the basis of
the idea of CMS for the EU. They are examined in some detail in Section 3 of this Report, where
the potential added value of such common minimum standards is explored. The instrumental
role of civil procedure rules in the EU is reflected in the Treaties.
The policy of judicial
cooperation in civil matters was placed within the part of the TFEU dealing with market
freedoms. Further (this will be examined in detail in a later section of this Report), the law-
making powers of the EU pertaining to civil procedure are related to (albeit no longer
contingent upon) the measures being necessary for the proper functioning of the internal
market (Article 81 TFEU). National judges are ‘first judges of European law’, and domestic civil
procedures continue to a large extent to govern the practical application of EU law.
They can
potentially support or disrupt the fundamental elements of the internal market (for instance the
free movement of persons or freedom of establishment).
Substantive EU law must have
practical effect (effet utile),
and the latter requires effective enforcement mechanisms, including
those before civil courts.
On the macroeconomic level, procedural differences among EU Member States may constitute
disturbances to trade, and on the microeconomic level they can deter businesses or consumers
from utilising their internal market rights.
1.2. The current status of debate on harmonisation of civil
procedures in the EU
1.2.1 Academic views, projects and proposals
Scholars are increasingly focusing on the topic of harmonisation of civil procedure rules within
the EU and the future of this process.
The piecemeal nature of the procedural harmonisation at
the EU level received very critical reviews. Further criticism was added with regard to the
recent trend of ‘sectoral harmonisation’ (also referred to as ‘incidental proceduralisation’), that
entails EU-level harmonisation of procedural rules within specific areas of substantive EU law
(consumer and competition law are good examples).
Scholars comment on the lack of
The Special Eurobarometer 352 ‘Civil Justice’, DG Justice, 2010,
http://ec.europa.eu/public_opinion/archives/ebs/ebs_351_en.pdf, p. 4.
See Article 19.1 TEU.
Quote from Diana Wallis (now president of ELI) in an interview with the Law Gazette, 11 September 2008.
See further: M. Tulibacka, Europeanisation of civil procedures’, at pp. 1533 – 1535.
Effet utile is a concept frequently deployed by the CJEU in interpreting and applying substantive and procedural EU
law: see T. Dumbrovsky, ‘Effet Utile as a Unifying Doctrine in a Constitutionally Pluralist Europe’, (June 1, 2014), in:
L. Tichy, M. Potacs, T. Dumbrovsky (eds) Effet Utile, pp. 93-113. Charles University, Prague 2014.
Some important examples are: the seminal work by E. Storskrub, ‘Civil Procedure and EU Law’, the contributions to
X.E. Kramer and C.H. van Rheee’s ‘Civil Litigation in a Globalising World’, other works by X.E. Kramer, and C.H. van
Rhee, the writings of N. Andrews, A. Biondi, M. Cappelletti, M. Dougan, M. Freudenthal, A. Jolovicz, K. Lenaerts, E.
Silvestri, M. Storme, A. Uzelac, A. Zuckerman, comparative writings of E. Blankenburg and H. Kotz; and the
publications of the Nagoya/Freiburg project on ‘A New Framework for Transnational Business Litigation’ (finstance:
M. De Cristofaro and N. Trocker, ‘Civil Justice in Italy’, and L. Ervo, ‘Civil Justice in Finland’, all by Jigakusha
Publishing, Tokyo). See attached Bibliography for details. The key academic institutions and centres involved in
researching these issues are: the European Law Institute, the Max Planck Institute Luxembourg for International,
European and Regulatory Procedural Law, the Oxford Centre for Socio-Legal Studies’ Programme in Civil Justice
Systems, the European Law Academy, and the Erasmus School of Law (especially Prof. Xandra Kramer). Further, this
Report draws on the experiences and developments within the EU criminal procedure, where common minimum
standards are also contemplated. Academic writings in this area are thus relevant here: see for instance the critical view
of the Commission’s proposed Framework Decisions on certain procedural rights in criminal proceedings: R. Loof,
‘Shooting from the Hip: Proposed minimum rights in Criminal Proceedings throughout the EU’, 12 European Law
Journal 3, [2006] 421-430, and the more positive yet cautious view by V. Mitsilegas, ‘The Constitutional Implications of
Mutual Recognition in Criminal Matters in the EU’, 43 CMLR 1277-1311, [2006]. More recent analysis of the
developments within criminal procedure: J. Ö, ‘Subsidiarity and EU Procedural Criminal Law’, 5 European Criminal
Law Review 1, 2015, pp. 19-45.
This Report focuses on the following three sectors of EU economy where sectoral proceduralisation is taking place:
consumer protection, competition law, and IP rights protection. It should be noted, however, that proceduralisation is
also taking place within other areas: public procurement law, equality and discrimination, environmental law, are