European Civil Procedure
1. Definition and purpose
Civil procedure denotes the body of rules that courts will follow when adjudicating civil disputes in order to ascertain and enforce rights and obligations established by substantive law. Procedural rules govern, inter alia, which courts have jurisdiction (PIL), how an action may be started, which forms of pleading, motions or applications are acceptable and in which manner and timing they may be entered, how service and an opportunity to be heard are to be carried out, how evidence may be obtained and presented, how the action may be expanded or reduced in terms of parties or claims, how the oral hearings are conducted, what the effect of judgments is and how they may be reviewed on appeal. Civil procedure may be distinguished from other forms of dispute resolution such as arbitration (arbitration law (national); arbitration (international)) and mediation by the involvement of courts as state organs and, in case of mediation or negotiation, by the power to render a decision binding on the parties. The rules on procedure may also be distinguished from the rules of enforcement which ensue after a decision has been handed down (or another form of enforceable instrument has been created). Civil procedure serves the primary purpose of ascertaining and enforcing private rights and resolving civil disputes. Further functions of civil procedure may be seen in maintaining civic order, legitimating the state’s monopoly on the use of force through an effective system of judicial redress, fostering procedural efficacy, and, most generally, promoting justice.
From the perspective of European law, civil procedure was long regarded as a natural domain of national law. While the rules on jurisdiction (jurisdiction (PIL)) and recognition and enforcement in cross-border disputes (recognition and enforcement of foreign judgments) had early on been unified by the Brussels Convention (Brussels I Reg), the procedural autonomy of the Member States remained otherwise intact, in particular in civil matters. However, starting in the 1990s, national procedure became increasingly influenced by European law, with the impetus observed in three main areas. The first impetus concerns the primary law of the EU, in particular the EU Treaty and the Treaty on the Functioning of the European Union (see 2. a) below). While the market freedoms (fundamental freedoms (general principles)) and the prohibition of discrimination on grounds of nationality (discrimination (general)) (Art 18 TFEU/12 EC) have had only little impact on national procedural law, potentially more far-reaching consequences may flow from the Member States’ obligation to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law (Arts 4(3), 19(1)3 TEU, principle of effectiveness) and to guarantee the judicial rights enshrined in Art 6 ECHR and in Art 47 EU Charter of Fundamental Rights (ChFR) (fair trial). A second impetus results from the regulations and directives promulgated by the EU on the basis of Arts 67, 81(2) TFEU/61, 65 EC which create a European law of international civil procedure for matters having cross-border implications, ousting national law to a large extent (see 2. b) below). Finally, an increasing number of directives and regulations with the purpose of substantive law harmonization (Art 114 TFEU/95 EC) include annex provisions of procedural content, thus leading to the possibility of sector-specific European rules of procedure for specific fields such as intellectual property, competition or consumer law (see 2. c) below).
2. Contours of EU law
a) EU primary law
In searching for an EU competence to legislate in civil procedure, focus turns to Arts 67(4), 81(2) TFEU/61, 65 EC, permitting the European legislature to adopt measures to ‘develop judicial cooperation in civil matters having cross-border implications’, ‘particularly when necessary for the proper functioning of the internal market’. These measures may include ‘mutual recognition and enforcement … of judgments and of decisions in extrajudicial cases’ (Art 81(2)(a) TFEU/65(a) EC), ‘cross-border service of … documents’ (Art 81(2)(b) TFEU/65(a) EC), ‘rules on jurisdiction and choice of law’ (Art 81(2)(c) TFEU/65(b) EC), ‘cooperation in the taking of evidence’ (Art 81(2)(d) TFEU/65(a) EC), ‘effective access to justice’ (Art 81(2)(e) TFEU), ‘elimination of obstacles to the proper functioning of civil proceedings’ (Art 81(2)(f) TFEU/65(c) EC), ‘development of alternative methods of dispute settlement’ (Art 81(2)(g) TFEU) and ‘support for the training of judicial staff’ (Art 81(2)(h) TFEU). Based on Art 81 TFEU/65 EC, the EU has, within less than a decade, promulgated numerous rules of international civil procedure for cross-border disputes in Europe. While legislation based on Arts 67(4), 81(2) TFEU/61(c), 65 EC is limited to civil matters having cross-border implications, the more general ground of competence in Art 114 TFEU/95 EC permits the European legislature to ‘adopt the measures for 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’. This competence may also include procedural regulations, in particular as an annex to substantive law harmonization, in order to ensure the effectiveness of the respective instruments. The European legislature has used this competence to adopt, inter alia, rules of civil procedure in specific fields such as intellectual property (Art 3-12 Dir 2004/ 48) and consumer law (Arts 11, 12 Dir 2005/29).
However, the relevance of EU primary law goes beyond the question of competence. From an institutional perspective, it is not only for the ECJ, but also ‘for the national courts … to ensure the full application of European Union law in all Member States and to ensure judicial protection of an individual’s rights under that law’, making national courts ‘guardians’ of the European legal order (ECJ Opinion 1/09 – Unified Patent Litigation System paras 66, 68; see also principle of effectiveness). As a consequence of this role, EU primary law, in principle, does not permit the Member States to confer private disputes between individuals over European rights ‘on a court created by an international agreement’, as this ‘would deprive [national] courts of their task, as “ordinary” courts within the European Union legal order, to implement European Union law and, thereby, of the power provided for in Article 267 TFEU … to refer questions for a preliminary ruling in the field concerned’ (ECJ Opinion 1/09 – Unified Patent Litigation System para 80).
On the substantive level, Article 18 TFEU/12 EC (Union citizenship) forbids, within the scope of application of the treaties, any direct or indirect discrimination on grounds of nationality which is not sufficiently justified. On the basis of this provision, the ECJ has repeatedly scrutinized and sometimes struck down national procedural provisions distinguishing between parties from the respective Member State and other EU countries (ECJ Case 22/80 – Boussac Saint-Frères  ECR I-3427 para 10; ECJ Case C-398/92 – Mund & Fester  ECR I-467 para 16; ECJ Case C-43/95 – Data Delecta  ECR I-4661 paras 11, 17). The market freedoms (fundamental freedoms (general principles)), on the other hand, have only very limited influence on national procedural rules: Even if these rules may ‘subject traders to different procedural rules according to whether they supply goods within the Member State concerned or export them to other Member States … the possibility that nationals would therefore hesitate to sell goods to purchasers established in other Member States is’, in general, regarded by the ECJ as ‘too uncertain and indirect for that national provision to be regarded as liable of hindering trade between Member States’ (ECJ Case C-412/97 – Fenocchio  ECR I-3845 para 11; ECJ Case C-291/09 – Guarnieri para 17). The market freedoms will therefore only impact national procedure if either the freedom of parties providing specific legal services related to these procedures is concerned (ECJ Case C-289/02 – AMOK  ECR I-15059 paras 25 ff) or, possibly, if the limitation of the relevant freedom is particularly severe (see ECJ Case C-208/00 – Überseering  ECR I-9919 para 82). A much more relevant influence for national procedure law are the judicial rights guaranteed by Art 6 ECHR and Art 47 of the EU Charter of Fundamental Rights (ChFR) and the principles of effectiveness and equivalence, details of which are discussed in the respective entries (fair trial; principle of effectiveness).
b) European law of international civil procedure
The term ‘European civil procedure’ is often used as a synonym for the instruments adopted on the basis of Arts 67, 81 TFEU/61, 65 EC which deal with civil matters having cross-border implications, in other words, the European law of international civil procedure. Even if such language may be regarded as too narrow as it tends to disregard the implications of EU primary law (see 2. a) above) and procedural provisions contained in directives based on (in particular) Art 114 TFEU/95 EC (see 2. c) below), it cannot be denied that the regulations and directives based on Arts 67, 81 TFEU/61, 65 EC make up a substantial portion of procedural regulations at the Union level.
The starting point for the European law of international civil procedure was the Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters of 1968. This Convention, originally based on Art 293 EC, was transformed, after the EU competence in Arts 67, 81 TFEU/61, 65 EC had been enacted, into Reg 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I). Brussels I still lies at the heart of European law of international procedure as it both harmonizes the jurisdiction rules for actions against defendants domiciled in the EU (Arts 2 ff Brussels I, jurisdiction (PIL)) and establishes far-reaching rules for the recognition and enforcement of judgments in civil matters (Arts 32 ff Brussels I, recognition and enforcement of foreign judgments). At present, this instrument is subject to a review process (COM(2010) 748 final) which might, inter alia, extend its scope to actions against persons domiciled in non-Member States and abolish exequatur proceedings for judgments from other EU Member States.
In order to establish an ‘area of freedom, security and justice’ (Art 67 TFEU/61 EC), Brussels I has been supplemented by a number of other instruments in recent years. To that end, the European legislature turned its eye to those matters which are excluded from the scope of Brussels I (Art 1(2) Brussels I). In matrimonial matters and parental responsibility, Reg 2201/ 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIbis Reg; family law (international); child law (international)) was adopted. For maintenance obligations, the Brussels Regulation was supplemented by the more specific Reg 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (family law (international)), and for insolvency, Reg 1346/2000 on insolvency proceedings was enacted (insolvency, cross-border). The expansion into areas previously unaffected by EU law seems to continue, witnessed by the recent proposal for a Regulation of the European Parliament and of the Council on jurisdiction, applicable law, recognition and enforcement of decisions and authentic instruments in matters of succession and the creation of a European Certificate of Succession (COM (2009) 154 final; succession law (international)) and for a Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (COM(2011) 126 final).
Next to the extension of EU law into those subject matters which were excluded from the Brussels Regulation, the European legislature drew its attention to other matters of international civil procedure such as cross-border service of documents, cross-border cooperation in taking evidence and the further facilitation of the enforcement of judicial decisions and extrajudicial instruments (Art 81(2)(a), (b), (d) TFEU/ 65(a) EC). For service, a special European regime was implemented by Reg 1393/2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and for evidence by Reg 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (evidence (international)). In the absence of a general abolition of exequatur proceedings in Brussels I, which (so far) could not be achieved due to considerable resistance from the Member States (but see COM(2010) 748 final), at least a partial further simplification of recognition and enforcement (recognition and enforcement of foreign judgments) was achieved by Reg 805/ 2004 creating a European Enforcement Order for uncontested claims. Regulation 805/2004 makes it possible to certify a judgment on an uncontested claim as a European Enforcement Order with the advantage of being recognized and enforced in the other Member States without the need for a declaration of enforceability and without any possibility of opposing its recognition (Art 5 Reg 805/2004, see also Art 21(1) Reg 805/2004), on the condition that certain minimum procedural requirements (Arts 12 ff Reg 805/2004) are met.
This approach—easier enforcement as a trade-off for the observation of certain minimum standards of procedure directly imposed by EU law—has apparently served as an inspiration for a third group of EU instruments, adopted to eliminate ‘obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States’ (Art 81(2)(f) TFEU/65 EC), but limited in their scope to civil disputes with a cross-border element. These instruments concern, first, the issue of legal aid, a field in which the minimum standards created by Art 6 ECHR and Art 47(3) ChFR were underscored by Dir 2003/8 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes. Further, these instruments encompass the enforcement of uncontested money claims by creating a European order for payment procedure in Reg 1896/2006 (on payment procedure see also ECJ Case C-412/97 – Fenocchio  ECR I-3845 para 11) and the enforcement of small claims (up to €2000) by establishing a European Small Claims Procedure (Reg 861/ 2007). The most recent measure, Dir 2008/52, addresses certain aspects of mediation in civil and commercial matters. Further legislative proposals which have been presented shift the focus to the effectiveness of enforcement such as the proposal for a Regulation creating a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters (COM(2011) 445 final) and the green paper on effective enforcement of judgments in the European Union: the transparency of debtors’ assets (COM(2008) 128 final). The recent ‘Stockholm Programme—An open and secure Europe serving and protecting citizens’ of the European Council goes still further, announcing the abolition of all intermediate measures (exequatur procedures), accompanied by a series of procedural law safeguards, the extension of mutual recognition, and the consolidation and simplification of existing EU legislation in this field (see also COM(2010) 171 final).
c) Sector-specific rules of procedure
In addition to EU primary law and the European instruments on international civil procedure, EU law impacts national law by the creation of sector-specific rules of civil procedure. This term refers to rules which are, generally as an annex to substantive law harmonization, included in EU directives or regulations for specific sectors and establish—at least in a selective manner—certain procedural requirements flowing from EU legislation. This development is most advanced in intellectual property. Against the background of international harmonization by Arts 41–61 TRIPS, the EU has established common minimum standards for measures, procedures and remedies to sanction the infringement of intellectual property rights in Dir 2004/48. These standards establish minimum rules for access to and preservation of evidence (Arts 6, 7 Dir 2004/48), provisional measures (Arts 7, 9 Dir 2004/48), corrective measures and injunctions (Arts 10, 11 Dir 2004/48) and the costs of proceedings (Art 14 Dir 2004/48) (intellectual property (enforcement); for an assessment see COM(2010) 779 final; SEC(2010) 1589 final).
A similar trend towards minimum procedural standards in order to secure an effective enforcement of EU substantive law can be witnessed in competition law where, in the wake of the private enforcement movement, the Commission has considered common European minimum standards for collective and group actions (SEC(2011) 173 final; collective litigation) and access to evidence (COM(2008) 165 final; see also the not officially published ‘Proposal for a council directive on rules governing actions for damages for infringements of Articles 81 and 82 of the Treaty’ (now Arts 101 and 102 TFEU); competition law (private enforcement). In consumer law, the EU has already enacted Dir 98/27 (now codified as Dir 2009/22) on injunctions for the protection of consumers’ interests and is currently consulting on a ‘Coherent European Approach towards Collective Redress’ (SEC(2011) 173 final). Other EU instruments with procedural provisions may be found in the law of unfair competition (Arts 11, 12 Dir 2005/29; Arts 5, 7 Dir 2006/114), the law against discrimination (Arts 8, 9 Dir 2004/113; Arts 17, 19 Dir 2006/54; discrimination (general); discrimination (contract law); discrimination (employment law)) and public procurement law (Dir 89/665; Dir 92/13; Dir 2007/66). These and other examples—even if they appear sporadic and selective—are evidence of a growing concern of the European legislature for the effective enforcement of substantive EU law which may lead, at least in certain areas, to the development of European sector-specific rules of civil procedure which apply not only to cross-border cases but also to purely domestic disputes.
3. The development of the law
A result of the steady expansion of European law on all three levels (see 2. a)–c) above) is a growing fragmentation of the law which creates a need for calibration and coordination of the different European instruments among each other, but also in relation to national and international rules of civil procedure. Timely examples would be the delimitation of the ‘general’ Reg 44/ 2001(Brussels I) from the ‘special’ Reg 1346/2000 on insolvency as far as insolvency-related annex proceedings are concerned (ECJ Case C-339/07 – Deko Marty Belgium  ECR I-767 para 21; ECJ Case C-292/08 – German Graphics  ECR I-8421 paras 29 ff) or the relationship of Brussels I, the evidence Reg 1206/2001 and Dir 2004/48 as far as measures to preserve evidence are concerned (ECJ Case C-104/03– St. Paul Dairy  ECR I-3481 para 23; see also Case C-175/06 – Tedesco ECR I-7929 and COM(2010) 748 final). In view of these increasing frictions, it will be the task of courts and academics in future years to assemble the different pieces of EU legislation into a meaningful picture, before perhaps in the distant future the European legislature will find the force to consolidate at least the European law of civil procedure in a single instrument (on the reform of Brussels I see COM (2010) 748 final).
In relation to national law, the limitation of Arts 67, 81 TFEU/61, 65 EC on civil matters with a cross-border element may lead to a duplication of national and European procedures for payment orders, small claims, legal aid and other matters, prompting the question whether a return to uniform rules for all proceedings—irrespective of their cross-border element—may be preferable to such a two-track system. Another open question is the relationship between national and European rules as far as third-country cases are concerned (ECJ Opinion 1/03  ECR I-1145 and the proposals in COM(2010) 748 final).
Frictions in the present system may also be observed between primary and secondary EU law, in particular in giving appropriate effect to the standards of fair trial developed by the ECtHR in its jurisprudence on Art 6 ECHR. While the ECJ’s past jurisprudence of scrutinizing procedural rules of European origin according to the standards of Art 6 ECHR may be characterized by rhetorical activism and practical lethargy (ECJ Case C-116/02 – Gasser  ECR I-14693 paras 70 ff), more recent case law—albeit in the admittedly special field of anti-terrorism measures—may indicate that Luxembourg is willing to intervene more often to safeguard procedural rights (ECJ Joined cases C-402/05 P and C-415/05 P – Kadi  ECR I-6351 para 352). The protection of the right to a fair trial will pose a particular challenge with any further steps towards a complete equalization of domestic and EU proceedings and decisions; not only because the doctrine of mutual trust may in practice not be fully justified in all cases, but also because the abolition of exequatur proceedings requires a pan-European compatibility of judgments not only in substance, but also in form, style and drafting which—at least for non-money judgments—cannot (yet?) be taken for granted. Whether or not such a full equalization of civil proceedings and decisions in Europe is desirable is another open and controversial question, in particular if one does not turn a blind eye towards existing differences in quality, speed and judicial efficiency which continue to be found between the Member States’ judicial systems.
4. Harmonization efforts
Compared with substantive law, projects for the unification of civil procedure are far less advanced. The final report of the Storme Commission dealt only with some of the most important subjects of civil procedure and was not a comprehensive draft for a model civil procedure law. Similarly, the ALI/UNIDROIT Principles of Transnational Civil Procedure point to useful common denominators between common law and civil law, but they did not aim at a comprehensive comparison of civil procedure laws in Europe or a proposal for a European codification of civil procedure. Comparative work in civil procedure and a possible draft of Principles of European Civil Procedure may thus be a—at least academic—task for the comparative scholarship of the future even if one does not endorse the idea of full harmonization of procedural rules in Europe.
Hans Joachim Herrmann and Jürgen Basedow (eds), Handbuch des Internationalen Zivilverfahrensrechts, vol I (1982); Dieter Martiny and Jan Peter Waehler, Handbuch des Internationalen Zivilverfahrensrechts, vol III/2 (1984); Alexander Layton and Hugh Mercer, European Civil Practice (2nd edn, 2004); CH van Rhee, European Traditions in Civil Procedure (2005); Ulrich Magnus and Peter Mankowski, Brussels I Regulation (2007); Burkhard Hess, Thomas Pfeiffer and Peter Schlosser, The Brussels I – Regulation (EC) No 44/2001: The Heidelberg Report on the Application of Regulation Brussels I in 25 Member States (study JLS/C4/2005/03) (2008); Laura Ervo, Minna Grans and Annti Jokela, Europeanization of Procedural Law and the New Challenges to Fair Trial (2009); Eva Storskrubb, Civil Procedure and EU Law: A Policy Area Uncovered (2009); Hélène Gaudemet-Tallon, Compétence et exécution des jugements en Europe (4th edn, 2010); Burkhard Hess, Europäisches Zivilprozessrecht—Ein Lehrbuch (2010); Thomas Rauscher (ed), Europäisches Zivilprozess- und Kollisionsrecht (3rd edn, 2010); Jan Kropholler and Jan von Hein, Europäisches Zivilprozessrecht (9th edn, 2010); Christian Heinze, ‘Zivilprozessrecht unter europäischem Einfluss’ (2011) JZ 709; see also the information available via the European Judicial Network <http://ec.europa.eu/civiljustice/index_en.htm>.