This paper aims at analysing the feasibility of enacting a European Code of Civil Procedure. Since 1968, with the Brussels I Convention on jurisdiction and the enforcement of judgements in civil and commercial matters, actions have been taken for creating uniform procedural norms to be integrated into national laws.
The call for ius commune generated diverse reactions (C.C van Dam, 2006, p.106). Some believe in the attainment of the goal, while others see it as a utopia, asking whether a European Code of Civil Procedure is even desirable.
The purpose of the present article is to give an insight into the complexity of the issue in question, balancing results, prospects and insurmountable obstacles. The conclusion will help shed some light on the future direction towards which the European procedural civil law is moving.
1. A desirable European Code of Civil Procedure
The first major argument for the enactment of a common Code of Civil Procedure is the need for certain, quick and reliable procedures established in cross-border implications (Mathijsen, 2004), essential for the well-functioning of the internal-market. Such codification aims at consolidating an ‘area of freedom, security and justice’ (Article 61 (c) of the EC Treaty). A set of norms to control rules of litigation between countries and to introduce an expenditure procedure to secure the enforcement of judgments was introduced by the Brussels I Convention (1968). The Maastricht Treaty opened the door for intergovernmental cooperation (Freudenthal, 2003). However, it was only with the entry into force of the Amsterdam Treaty that such judicial cooperation in civil matters found its legal ground in Article 65 of the Community Treaty.
Since then, more actions have been taken at a European level to harmonise private law fields, substantively and procedurally alike. Worth mentioning are: a draft of European Tort Law, published by the European Group of Tort Law (C.C. van Dam, 2006, p.83), Directive 1999/34/EC concerning liability for defective products (amending Directive 85/374/EEC), Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels II bis), Regulation No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (Rome III), Green Paper from the ‘Commission on policy options for progress towards a European Contract Law for consumers and businesses’. In search for a common European private law, Regulation No 1215/2012 was set to be applied in member states starting January 10, 2015. It reformed the Brussels Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, bringing significant changes related to the rules on jurisdiction agreements, recognition and enforcement of member states’ judgments in other member states, arbitration and rules concerning third parties.
1.1. Practical example
The importance of enabling harmonised procedural rules is reflected in the field of patent law (Jacob, 1998, p.125). Previous to the Brussels I Convention, a person could have obtained a patent, a copyright or a trade mark only for a particular country, since property laws were regulated on a territorial basis. To put it in a nutshell, each country had its own structure, its own patent office, own legal system. In case a cross-border infringement occurred, the patent had to be enforced in every country, in accordance with each state’s law (p.126). The process was time consuming and implied high costs, creating a lack of stability and predictability.
A solution was proposed: harmonising substantive patentability rules and establishing a more effective European Patent Convention. The aim was partially fulfilled:
(1) On one hand it led to the establishment of the European Patent Office in 1973. From that point on, in case an application succeeded, the patent granted was to be accepted by each designated country. However, this did not imply an absolute European right per se. Still, each identical patent was to fall within the jurisdiction of its own national law as concerning validity and infringement procedures (Sheraton and Gilbert, 1999).
(2) On the other hand, the plan to set a Common court to solve procedural aspects regarding patentability failed (Jacob, 1998, p.127) because setting a pan-European framework for judicial cooperation could entitle the European Court a competency to judge only on appeal, leaving it to the national states to decide the matter on first instance. Difficulties were encountered, as an action admissible in one country was found inadmissible in another (Improver v Remington (1990) FSR 181). Coping with all the discrepancies within the national procedural systems proved too ambitious.
2. Dissenting opinions
As Legrand stated, implementing a rule from another legal system and expecting it to work in the same way would be foolish. There is no such thing as a legal transplant. Legrand is one of the few authors who dared to advocate against harmonisation and against a ‘ius commune’. In a context where the law of civil procedure is so closely connected with the forum state, with its own culture, history, traditions, there is no room left for harmonisation (Freudenthal, 2003).
Insurmountable obstacles are seen in the distinct nature of the continental and the common law traditions. Continental law is more inclined towards the inquisitorial system, as opposed to the adversarial nature of the common law system. Also, the former is governed by a ‘deductive’ line of reasoning: codified rules are enacted prior to the practices that follow. As opposed to this, the common law system is governed by precedents, revealing reluctance to rigid, codified norms (Legrand, 1997, p.48). Moreover, following such line of reasoning, convergence is not feasible due to the different organisation of lay participation (Groothenhuis, 2003).
Against a European Civil Code stand the states’ fears of the unknown and also of losing too much of their sovereignty. The ius commune is nothing more than an attack on cultural identity and pluralism, a state risking, thus, the diminution of its particularity (Legrand, 1997, pp.53-54). In such a context, the following question needs to be addressed: ‘Is a European Code of Civil Procedure even desirable?’
3. Conclusion
The idea of a common set of civil procedural norms is part of the European Union’s primary goal set since its foundation: the establishment of a single, common market. Looking reality in the face, there is no certainty as to whether a European Code of Civil procedure will ever be enacted. Or, in the affirmative case, whether it will do good or bad. We should aim for a balance between the need to have a solid, uniform mechanism of dispute resolution and the need to preserve the member states’ self-identity, history, language and legal culture. As Nietzsche stated, ‘handle deep problems like cold baths: quickly into them and quickly out of them’ (Legrand, 1997, p.44). So, should we give up on pan-European procedural integration or should we stay in the water, even if cold, adjust and see how far can we keep going for the sake of fair and common justice?
