From common rules to best practices in European Civil Procedure 9781509918294, 9781509918263, 9781509918270

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From Common Rules to Best Practices in European Civil Procedure: An Introduction Burkhard Hess Director Max Planck Institute Luxembourg for Procedural Law Professor at the Universities of Heidelberg and Luxembourg Xandra Kramer Professor at Erasmus University Rotterdam and Utrecht University

(A) A New Era for Civil Procedure in the EU Twenty years after the adoption of the extended competence in the area of judicial cooperation under the Amsterdam Treaty of 1997, numerous in‐ struments on European civil procedure have been developed and enacted by the EU legislature, and applied by national courts. There is no doubt that these instruments have built a genuine Judicial Area where citizens and businesses can rely on operating justice systems and functioning cross-border cooperation, notwithstanding that there are still deficiencies in many individual cases.1 While it remains important to study these legis‐ lative instruments and, where necessary, to establish new instruments, civ‐ il procedure in the EU has entered a new era in which the development of common standards and best practices in the Member States and at the EU level are of the essence. (1) Policy and Legislative Perspectives European civil procedure has developed rapidly since the Amsterdam Treaty entered into force in 1999. The Tampere Conclusions and the jus‐ tice programmes that followed breathed the ambitions to enact new instru‐

1 F. Gascon Inchausti & M. Requejo Isidro, in: Hess et al. (ed.), EU Procedural Law Study, 2017, JUST/2014/RCON/PR/CIVI/0082 available at: https://publica‐ tions.europa.eu/en/publication-detail/-/publication/531ef49a-9768-11e7b92d-01aa75ed71a1/language-en.

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ments, ranging from “traditional” private international law instruments to coordinate cross-border litigation to harmonized rules on certain procedu‐ ral aspects and fully-fledged, uniform European civil procedures. While the EU legislature and academics initially focused on establishing and dis‐ cussing new legislation, the focus has shifted to evaluating the national implementation in practice, the relation between the different instruments and the interaction with national law. The flood of new instruments con‐ cerning civil procedure and the multidimensional character of regulation have also raised concerns about the coherence of the European law of civil procedure.2 Compared to the previous policy programmes of the European Com‐ mission, the current programme, called the EU Justice Agenda for 2020,3 is less ambitious in proposing new legislation. The main challenges point‐ ed out in the 2020 Agenda are the strengthening of mutual trust (“the bedrock upon which EU justice policy should be built”), the mobility of citizens (freedom of movement), and economic recovery and growth.4 While previous programmes have highlighted overarching new concepts, most prominently that of mutual trust,5 the present Justice Agenda propos‐ es to tackle the challenges by the further consolidation, codification, and completion of EU legislation.6 In relation to the completion of EU legisla‐ tion, no particular initiatives are mentioned, but the need to adjust to the dynamics of the mobility of citizens and businesses is addressed. The Jus‐

2 See among others M. Tulibacka, “Europeanization of Civil Procedures: In Search of a Coherent Approach”, 46 CMLRev (2009) 5, 1527 at 1549-1565; S. Huber, “Koor‐ dinierung europäischer Zivilprozessrechtsinstrumente” in Geimer and Schütze (eds.), Recht ohne Grenzen Festschrift für Athanassios Kaissis zum 65. Geburtstag (Sellier, 2012), 413-429; X.E. Kramer, Procedure Matters: Construction and de‐ constructivism in European civil procedure (Erasmus Law Lectures 33), Eleven In‐ ternational Publishing, 2013, at 23-24; B. Hess, “The State of Civil Justice Union”, in B. Hess, M. Bergström and E. Storskrubb (eds.), EU Civil Justice. Current issues and Future Outlook, Hart Publishing, 2016, at 1-5. 3 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee of the Regions, The EU Justice Agenda for 2020 – Strengthening Trust, Mobility and Growth within the Union, COM (2014) 144 final. 4 EU Justice Agenda for 2020, cited n. 3, Section 3. 5 This principle of mutual recognition was introduced as the “cornerstone of judicial co-operation” in the Tampere European Council Conclusions, No. 33, of 15-16 Oc‐ tober 1999. 6 EU Justice Agenda for 2020, cited n. 3, Section 4.

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From Common Rules to Best Practices in European Civil Procedure: An Introduction

tice Agenda emphasizes that mutual trust requires justice systems to be in‐ dependent, of a high standard, and efficient, ensuring the parties’ procedu‐ ral rights. The call for coherence, a recurring theme since the establishment of the Hague Programme of 20047, is also addressed in the present Justice pro‐ gramme by stressing the need, in particular, for consolidation.8 That is to say, it is emphasized as a priority that the progress made in the area of EU justice should be consolidated “ensuring that fundamental rights are up‐ held and that rights granted by EU legislation become a reality”. Judicial cooperation needs to be strengthened for this purpose and communication technologies need to be further developed to make justice more effective. These are also two of the central themes in this book. It is recognized that the implementation and functioning within the national system of Euro‐ pean civil procedural rules should be a priority.9 Many EU procedural law instruments rely on some form of implemen‐ tation into national legal systems, and, in any case, they operate within the national procedural and institutional systems. Until recently, the interac‐ tion with national civil procedure remained under-researched, notwith‐ standing that the actual implementation and application of EU rules in the domestic legal order is evidently of the essence for the success of these in‐ struments.10 As is also referenced by Norel Rosner in his brief introducto‐

7 The Hague Programme: strengthening freedom, security and justice in the Euro‐ pean Union, 13 December 2004, O.J. 2005, C 53/1. For criticism on the lack of coherence in European civil procedure, see n. 2. 8 EU Justice Agenda for 2020, cited n. 3, Section 4.1. 9 EU Justice Agenda for 2020, cited n. 3, Section 4.1, where it reads that “Instru‐ ments agreed at EU level must be transposed by Member States, effectively imple‐ mented and used. When such rights are not respected, there should be effective remedies available”. 10 However, there are incidental studies focusing on the implementation into a partic‐ ular jurisdiction. See, for instance, for a study on the implementation of the Ser‐ vice Regulation and European uniform procedures in Belgium L. Samyn, De uitdagingen van het Europees (international) procesrecht voor het Belgisch proces‐ recht, PhD thesis University of Antwerp, 2013. On the implementation of Euro‐ pean uniform procedures in the Netherlands, see X.E. Kramer, “European Proce‐ dures on Debt Collection: Nothing or Noting? Experiences and Future Prospects”, in B. Hess, M. Bergström &. E. Storskrubb (eds), EU Civil Justice – Current Is‐ sues and Future Outlook, Hart Publishing, 2016, at 97-122, and in the same book, on England, C. Crifò, “Trusted with a muzzle and enfranchised with a clog": the

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ry paper in the present book11, a comparative legal analysis commissioned by the European Commission has been carried out in relation to the ser‐ vice of documents,12 with a view of obtaining information on national laws and practices and to evaluate the possibility of creating minimum standards. In line with this endeavour, an extensive evaluation study com‐ missioned by the European Commission was carried out by an internation‐ al consortium led by the MPI Luxembourg on the application of national and EU procedural law and its effect on the free circulation of judgments and consumer law.13 This research report, based on national reports and an extensive collection of data, sheds light on the interaction between nation‐ al procedural laws and EU law and includes recommendations to improve the operation of legal instruments and practices.14 In the same vein, the European Parliament has been very active in re‐ cent years in the area of European civil procedure, as is confirmed in the chapter by Robert Bray in the present book.15 Following studies on the codification of private international law that also encompass international procedural law instruments,16 the European Parliament has initiated sever‐ al studies on “common minimum standards” in European civil procedure

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British approach to European civil procedure, at 81-96. An extensive study is E.A. Ontanu, Cross-Border Debt Recovery in the EU. A Comparative and Empirical Study on the Use of European Uniform Procedures (PhD thesis Erasmus Universi‐ ty Rotterdam), Antwerp, Intersentia, 2017. See Part I, second chapter. Study on the service of documents. Comparative legal analysis of the relevant laws and practices of the Member States, carried out by DMI in consortium with the University of Florence and the University of Uppsala, TENDER No JUST/ 2014/JCOO/PR/CIVI/0049, 6 October 2016. A comprehensive evaluation study of national procedural laws and practices in terms of their impact on the free circulation of judgments and on the equivalence and effectiveness of the procedural protection of consumers under EU consumer law, Report prepared by a Consortium of European universities led the MPI Lux‐ embourg for Procedural Law, as commissioned by the European Commission, JUST/2014/RCON/PR/CIVI/0082 (2017). The study will be published as a book in two volumes in 2017/2018. Part I, third chapter. See http://www.europarl.europa.eu/legislative-train/themearea-of-justice-and-fundamental-rights/file-common-standards-in-the-field-of-civ‐ il-procedure (last consulted 5 July 2017). See X.E. Kramer, M. de Rooij, V. Lazić, E.N. Frohn & R.J. Blauwhoff, “A Euro‐ pean framework for private international law: current gaps and future perspec‐ tives”, study, European Parliament, 2012; X.E. Kramer, “Current gaps and future perspectives in European private international law: towards a code on private in‐

From Common Rules to Best Practices in European Civil Procedure: An Introduction

in the past years. In 2015, a report by its Research Service presented an analysis on the Europeanisation of civil procedure, which included the mapping of existing instruments and the investigation of the possibilities of a directive on minimum standards for the fundament rights protection in civil litigation.17 This was followed in 2016 by an Added Value Assess‐ ment and a research paper on common minimum standards of civil proce‐ dure18 as well as an in-depth analysis authored by Burkhard Hess.19 After releasing a Working Document by rapporteur Emil Radev in December 2015, a Draft Report with recommendations to the Commission on com‐ mon minimum standards of civil procedure was published.20 Early in 2017, this was followed by a Draft Report calling upon the Commission to table a Directive on common minimum standards of civil procedure in the EU, with its legal basis in Art. 81(2) TFEU.21 With some amendments, the report was adopted on 6 June 2017.22 The annexed Draft Directive con‐ sists of 28 provisions containing minimum standards for civil proceed‐

17 18 19 20 21 22

ternational law?”, briefing note, European Parliament, 2012; X.E. Kramer, “Euro‐ pean Private International Law: The Way Forward”, in-depth analysis, European Parliament, in: Workshop on Upcoming Issues of EU Law. Compilation of InDepth Analyses, European Parliament, Brussels, 2014, p. 77-105; J. von Hein & G. Rühl, “Towards a European code on private international law?”, study, Euro‐ pean Parliament, in: Cross-border activities in the EU: Making life easier for citi‐ zens, Workshop for the JURI Committee, 2015, at 8-53. European Parliamentary Research Service (Rafał Mańko), “Europeanisation of civil procedure. Towards common minimum standards?”, June 2015. M. Tulibacka, M. Sanz, R. Blomeyer, “Common minimum standards of civil pro‐ cedure”, European Added Value Assessment, Annex I, Research paper, Blomeyer & Sanz,, April 2016. B. Hess, Harmonized Rules and Minimum Standards in the European Law of Civil Procedure, In-depth analysis European Parliament, June 2016—stressing the miss‐ ing concept of “minimum standards”. European Parliament, Working document on establishing common minimum stan‐ dards for civil procedure in the European Union – the legal basis, 21 December 2015. European Parliament, Draft report with recommendations to the Commission on common minimum standards of civil procedure in the EU (2015/2084(INL)), 10 February 2017. European Parliament, Report with recommendations to the Commission on com‐ mon minimum standards of civil procedure in the EU (2015/2084(INL)), 6 June 2017. The procedure was closed on 4 July 2017.

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ings.23 These rules do not replace national rules of civil procedure, but rather “allow for more protective and effective national procedural rules”; these minimum procedural standards aim to “contribute to the moderniza‐ tion of national proceedings, to a level playing field for businesses, and to increased economic growth via effective and efficient judicial systems, while facilitating citizens’ access to justice in the EU.”24 This initiative by the European Parliament is so far the most ambitious one from a policy and legislative point of view, though it is purportedly limited to cross-border cases only.25 Minimum protective standards have been established most explicitly in the European Enforcement Order Regulation for the purpose of serving documents and providing the debtor with information on the claim.26 A number of other – mostly sector-specif‐ ic instruments – also contain what can be regarded as minimum stan‐ dards.27 However, the directive proposed by the European Parliament cre‐ ates a horizontal framework for cross-border civil and commercial mat‐ ters, including family matters and other specific matters that are excluded from most other regulations in this area.28 Whether the European Commis‐

23 Annex to the motion for a resolution: Recommendations for a Directive of the European Parliament and of the Council on common minimum standard of civil procedure in the EU. 24 Report with recommendations to the Commission on common minimum standards of civil procedure in the EU, (2015/2084(INL)), 7 June 2017, Explanatory State‐ ment. 25 See Arts. 1 and 3 of the proposed directive, cited n. 22, 23. The initiative is based on Art. 81 TFEU, which only confers legislative powers on the Union in crossborder settings, cf. B. Hess, Europäisches Zivilprozessrecht (2010), at 2, paras. However, the resolution of the Parliament proposes a broad reading of “cross-bor‐ der” that includes all cases when Union law is applied by national courts; see Art. 3 (1)(c) of the Draft Directive. 26 Regulation (EC) No. 805/2004 of the European Parliament and of the Council of 21, April 2004, which created a European Enforcement Order for uncontested claims, OJ 2004, L 143/15, Arts. 12-19. 27 For instance Directive 2013/11/EU on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR), OJ 2013, L 165/63. 28 In Art. 2(1) of the proposed directive, excluded matters are only “rights and obli‐ gations, which are not at the parties’ disposal under the relevant applicable law”, as well as “revenue, customs or administrative matters or to the liability of the State for acts and omissions in the exercise of State authority (‘acta iuse im‐ perii’)”. In this respect, the proposed directive refers to the material scope of the Brussels I-bis Regulation.

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From Common Rules to Best Practices in European Civil Procedure: An Introduction

sion will indeed table this draft for legislation remains to be seen, but it ties in with questions posed in the evaluation study carried out on behalf of the European Commission relating to the desirability of introducing common minimum standards.29 In Section C, we will briefly discuss some of the challenges of creating minimum standards of civil procedure as a way forward in European civil procedure.30 (2) An Academic Endeavour: the ELI-Unidroit European Rules of Civil Procedure Within the academic sphere, European civil procedure has meanwhile gained the status of an independent area of research and is enriched by a growing number of papers, monographs and edited collections. Many European academics and practitioners, aided by observers from Europe and beyond, have come to collaborate in an ambitious soft law project or‐ ganized by the European Law Institute (ELI) and Unidroit. It was kicked off in 2013 under the name “From Transnational Principles to European Rules of Civil Procedure”.31 As a starting point, the project builds on the ALI-UNIDROIT Principles of Transnational Civil Procedure, adopted in 2004. It aims to develop these principles into European Rules of Civil Pro‐ cedure, taking into account pertinent sources of European law and com‐ mon traditions of European countries.32 The Rules aim at promoting the effectiveness, efficiency and reliability of civil procedure (not only in cross-border settings) and should be considered as a Model Law for na‐ tional and supranational law making within Europe. The pilot project started with three specific topics of civil procedure, but its scope has been extended to nine topics and corresponding working

29 See n. 1. 30 See Section C(3) for further explanation. 31 Exploratory workshop, Vienna, 18-19 October 2014. Many of the papers presented at this workshop have been published in the Uniform Law Review 2014(2) and 2014(3). More information and related documents on the project are available on the websites of ELI and Unidroit. 32 In the initial report of the project, available at the website of ELI and Unidroit, p. 2, the following sources are enlisted: i) the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union; ii) the wider acquis of binding EU law; iii) the common traditions in the European coun‐ tries; iv) the Storme Commission’s work; and v) other pertinent European sources.

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groups to date, covering all substantial areas of civil procedure.33 Eight working groups deal with specific topics: (1) Service and Due Notice of Proceedings; (2) Provisional and Protective Measures; (3) Access to Infor‐ mation and Evidence; (4) Obligations of the Parties, Lawyers and Judges; (5) Res Judicata and Lis Pendens; (6) Costs; (7) Judgments; and (8) Ap‐ peals. In 2016, a horizontal working group on the overall structure of the work – the ”Structure” group – was established.34 This overarching group has the challenging and much-needed task of coordinating the parallel work of the other working groups and framing this work, to ensure a co‐ herent set of rules to be used by the European legal community as well as securing consistent terminology. Though its precise scope and methodology was not evident from the start,35 it is now clear that the project covers civil and commercial matters, with the exclusion of family law and some other specific matters in partic‐ ular.36 Each working group has two co-rapporteurs and four to eight group members from different Member States or associated European countries to assure representativeness of the rules as far as possible. The rules are complemented by short explanatory comments. The Structure Working Group has drafted a framework that will accommodate the rules and is ac‐ companied by a number of general rules. The work is expected to continue until the end of 2018 and should be adopted by the ELI and Unidroit. This future Model Law, apart from being the synthesis of an academic effort, may also be of value for both national and European policy makers and legislators. The European Parliament has been interested in the work

33 For the work in progress, see X.E. Kramer, “Towards ELI-Unidroit Model Rules of Civil Procedure: Basic Premises and Challenges” paper presented at the Bay Area Civil Procedure Forum, Hastings, San Francisco, 19 April 2016, available at SSRN: https://ssrn.com/abstract=2828148; B. Hess, “Ein einheitliches Prozess‐ recht?”, 6 Int’l J Proc., (2016), 55–85; Koechel F., “Harmonization and Unifica‐ tion of Civil Procedural Law”, L 6 Int’l J Proc., (2016), 86–102 (reporting the dis‐ cussion of the article of B. Hess at the conference in Ghent 2015). 34 Referring to Principle 9 of the ALI/Unidroit Principles of Transnational Civil Pro‐ cedure, on which a paper at the first exploratory working group was presented, see X.E. Kramer, “The Structure of Civil Proceedings and Why It Matters: Explorato‐ ry Observations on Future ELI-UNIDROIT European Rules of Civil Procedure”, 2 Uniform Law Review (2014), 218-238. The task of the working group, however, goes beyond providing rules on the structure of proceedings as such. 35 See also Kramer, supra n. 33, at 8-10. 36 Rules on the scope of the European Rules of Civil Procedure are currently being drafted (last update 3 July 2017).

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From Common Rules to Best Practices in European Civil Procedure: An Introduction

from the beginning and has hosted a number of meetings to discuss the progress of the different working groups. Representatives from the Euro‐ pean Commission regularly participate in meetings as observers. In this re‐ gard, the project is a promising contribution for the further development towards a European civil procedure. It can serve as a model law for future developments and modernization at the European and domestic level.37 The latest developments demonstrate that the Europe law of civil proce‐ dure remains a dynamic area of European integration. (3) From Common Rules to Best Practices The theme of the present book is inspired by the shift in focus from the establishment of new legislation with common rules to a focus on the ac‐ tual implementation, application, and operationalization of the rules on co‐ operation in civil justice. While the discussion of common rules continues to be important and has regained importance as a result of the “common minimum standards” initiative of the European Parliament, some papers in this book also focus on how to move beyond common rules and towards best practices.38 These “best practices” in applying European instruments, implementing new pathways to civil justice – including eJustice, alterna‐ tive dispute resolution (ADR) and collective redress — and the opera‐ tionalizing of judicial cooperation, for instance through the European Con‐ sumer Centres and the European Judicial Network, give body to the prin‐ ciples of mutual trust and judicial cooperation. These can in turn feed the further development of the European civil procedure framework from the bottom up.

37 In this respect, it is worth recalling that the proposals of the Storme group, which were much criticized in the 1980 and 1990 s, finally made their way into several EU instruments on civil procedure, cf. B. Hess, Europäisches Zivilprozessrecht (2010), at 13, paras 4–7. 38 At the Rotterdam conference, additional presentations on best practices, including on the “Rechtwijzer” project (by Jin Ho Verdonschot) and on the European Judi‐ cial Network in Civil and Commercial Matters (by Ilse Couwenberg) were given, but these are not included in the present book.

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(B) Four Perspectives on EU Civil Justice The papers in this book are organized around four main subthemes of im‐ portance, presented following the introductory remarks from the viewpoint of the European Commission and the European Parliament. Part I is a gen‐ eral part dedicated to common standards of EU civil procedure, focusing on the harmonization of civil procedure and judicial cooperation in gener‐ al. Parts II and III centre on two important developments in contemporary civil procedure, i.e., procedural innovation through e-justice and ADR as a means of judicial management and cooperation. Part IV contains short contributions on promoting best practices in judicial cooperation. The book is concluded with the presentation of the dinner speech given by Marcel Storme, one of the founding fathers of European civil procedure. In his view, European civil procedure will only become a real branch of the law once civil procedure is harmonized in all the Member States. (1) Common Standards of EU Civil Procedure: Harmonization and Cooperation The central questions of this part concern whether there is a need for com‐ mon standards of EU civil procedure, how to identify them, and whether we need harmonization to achieve harmonious cooperation. Questioning what can be understood by “common standards”, Remo Caponi states that establishing such standards requires a “process of cul‐ tural exchange and approximation amongst peoples and, especially, pro‐ fessionals who live in countries whose legal systems are to be harmo‐ nized.” It is exactly this exchange that is much needed in the European Union, especially now that Brexit has become a reality and the status of the Union and of EU law seems no longer to be self-evident.39 He con‐ cludes that the uncertainties with regard to regulatory techniques also re‐ flect divergences on the purposes to be achieved by civil justice systems: whether this might be implementing the rule of law or primarily a tool or

39 During the conference leading to this book, held on 25-26 February 2016, this pos‐ sibility was discussed, but not thoroughly, as many still believed this would not materialize. On the consequence of Brexit for European law of civil procedure, see B. Hess, “Back to the Past: BREXIT und das europäische internationale Privatund Verfahrensrecht, IPRax (2016), 409-416.

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From Common Rules to Best Practices in European Civil Procedure: An Introduction

an easy and cost-effective dispute resolution. C.H. (Remco) van Rhee, partly in response to Caponi, discusses whether harmonization is neces‐ sary, and how it can be achieved. He concludes that harmonization is in‐ deed necessary as long as we do not have supra-national EU courts deal‐ ing with substantive EU law. The starting point of such harmonization or alignment can be the identification of best practices that should not be re‐ garded as minimum standards, but aim at high-quality civil litigation. Marta Requejo Isidro answers the question on whether harmonization is required to achieve harmonious cooperation by using insights from the field of judicial cooperation in criminal matters and by comparing these with judicial cooperation in civil matters. Mutual trust and procedural safeguards have so far been put to the test in the area, and particularly in the context of the European Arrest Warrant (EAW).40 The major interest with regard to criminal matters stems from the fact that the EU legislator adopted a Framework Decision on procedural minimum standards. The practical impact, however, has remained limited. Therefore, Marta Reque‐ jo Isidro concludes that the state of affairs in judicial cooperation in crimi‐ nal matters suggests that minimum standards will be just one step along the path to an area of justice, security and freedom and cannot be regarded as the final and effective solution. However, they can be regarded as a measure of trust-enhancing legislation. Monique Hazelhorst concludes in response to Requejo’s paper that though it can be agreed that there are dis‐ parities between the two areas of law, we can learn from experiences in the criminal sphere. The CJEU judgments in this area are highly informa‐ tive to understand the possibilities and risks of judicial cooperation on the basis of harmonized EU legislation. Two chapters focus on the extent to which the United States can be con‐ sidered as a model for the EU. Christopher Whytock discusses what lessons can be learned from taking a US perspective on harmonization of civil procedure. He concludes that the US example in fact shows the limits of procedural harmonization due to diversity in politics, local practices and legal culture. The EU faces even bigger challenges (especially cultural and language hurdles) in this respect. In his view, however, the EU is al‐ ready on its way toward a “full faith and credit” that coupled with mini‐

40 The EAW was established by Council Framework Decision 2002/584/JHA of 13 June 2002 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, OJ 2002, L190/1.

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mum standards can foster judicial cooperation. Jan von Hein responds that the emulation of the US Federal Rules of Civil Procedure by state legisla‐ tion is not a model for the EU because the EU does not have separate European courts applying their own procedural rules.41 Nevertheless, the US “full faith and credit” clause offers inspiration for the EU concept of mutual trust. Against the policy tide, he concludes that with the consider‐ able divergences between the domestic legal systems in the EU, the time is not ripe to abolish the exequatur. This view has recently been confirmed by the president of the CJEU.42 The last chapter of this part focuses on the diverging litigation costs. Offering rich insights on access to justice in cross-border cases, Adriani Dori and Vincent Richard discuss litigation costs and the diverging proce‐ dural cultures in the EU in this regard. The authors provide insights on how the considerable discrepancies of the different procedural cultures in the EU Member States impact litigation costs. They conclude that enacting common rules cannot lead to a harmonized and coherent legal framework if the discrepancies in this area are not taken into account. Harmonization is not an issue as long as a common understanding of core values is miss‐ ing. As an alternative, the coordination rules of European international procedural law may mitigate the major discrepancies in cross-border cas‐ es. A practical example of the enduring divergences was the failure to im‐ pose maximum court fees in the amended European Small Claims Proce‐ dure. In this field, the European lawmaker should refrain from imposing uniform solutions as long as a consensus on basic principles has not been reached. (2) Procedural Innovation and e-Justice The chapters included in Part II of the book are organized around the question as to whether and how innovative mechanisms for dispute resolu‐ tion can enhance cooperation in the field of civil justice. E-Justice has been one of the spearheads of the European Commission to improve ac‐

41 The new patent litigation system might be a first step into a comparable (although sectorial) direction. 42 K. Lenaerts, “La vie après l’avis; exploring the principle of mutual (but not blind) trust”, CMLRev, 2017, 805–839.

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From Common Rules to Best Practices in European Civil Procedure: An Introduction

cess to justice, with the establishment of the e-justice portal as the main achievement.43 Marco Velicogna and Giampiero Lupo discuss the e-CODEX project, and in particular the development of a techno-legal system to pilot “live” cross-border judicial procedures.44 This EU co-financed European collab‐ oration to improve cross-border litigation ran from 2010 until 2016 and is currently being followed up by the Me-CODEX project.45 They conclude that e-CODEX is more than just a technological tool to assist judicial pro‐ cedures, but in fact it touches upon key elements that lay the foundations of offline juridical proceedings. John Sorabji discusses the digitalization of civil courts in England and Wales. He illustrates how these develop‐ ments are affected by austerity measures as part of the economic crisis and suggests that – considering that budget constraints exist across Europe – European countries collaborate to co-design a common Online Court with common processes and common training for its staff. Ernst Steigenga and Marco Velicogna, having closely collaborated as “EU e-justice practition‐ ers” and co-founders of the e-CODEX project, take a broader view and analyse how e-justice should be designed so as to guarantee (easy) access to cross-border justice. They plead for the establishment of a governance infrastructure for EU e-justice. Eva Storskrubb discusses the triad between e-justice, innovation and the EU, zooming in on the e-service of docu‐ ments in particular. She underlines the balance between e-justice and fun‐ damental rights, quoting an Opinion of the Consultative Counsel of Euro‐ pean Judges that “justice is and should remain humane as it primarily deals with people and their disputes.”46 She concludes that in the EU con‐ text e-justice has the potential to contribute to true change and to strength‐ en judicial cooperation for the benefit of the enduring diversity of cost rules in the national procedures impeding citizens in the enforcement of their rights.

43 For the EU-context, see X.E. Kramer, “Access to Justice and Technology: Trans‐ forming the Face of Cross-Border Civil Litigation and Adjudication in the EU”, in K. Benyekhlef, J. Bailey, J. Burkell and F. Gelinas (eds.), eAccess to Justice, Uni‐ versity of Ottawa Press, 2016, at 351-375. 44 e-Codex stands for e-Justice Communication via Online Data EXchange. 45 See https://www.e-codex.eu/ , accessed 1 July 2017. 46 Opinion No.(2011)14 of the CCJE, “Justice and information technologies (IT)”, 9 November 2011.

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(3) Alternative Dispute Resolution and Judicial Cooperation Part III is dedicated to alternative dispute resolution. Encouraging and im‐ proving Alternative Dispute Resolution (ADR) mechanisms, in particular for consumers, is another focal point in EU policy to simplify access to justice in recent years and has received ample scholarly attention.47 This has resulted in the Directive on Consumer ADR48 and the Regulation on Consumer Online Dispute Resolution (ODR)49 along with the establish‐ ment of the ODR platform. The central question in this part of the book is how can alternative mechanisms for dispute resolution contribute to judi‐ cial cooperation and what is needed to ensure effective enforcement in cross-border cases. Christopher Hodges and Stefaan Voet focus on the development of con‐ sumer dispute resolution (CDR). They conclude that ADR has moved be‐ yond being only an alternative to court litigation and in some situations has become mainstream. Responding to concerns that have been raised in relation to ADR,50 they argue that it appears that the rule of law is not fun‐ damentally threatened by the emerging new dispute resolution systems be‐ cause it is based on compliance structures which are founded on funda‐ mental values, such as the rule of law. In advocating that there is a need for synergy between judicial cooperation and dispute resolution, Pablo

47 For an extensive treatment, see C. Hodges, I. Benöhr, N. Creutzfeldt, Consumer ADR in Europe, Hart Publishing, 2012; Hess et al., supra n. 1, Strand 2, paras 533 – 635. 48 Directive 2013/11/EU on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR), OJ 2013, L 165/63. 49 Regulation (EU) No 524/2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regu‐ lation on consumer ODR), OJ 2013, L 165/1. 50 See, for instance, Cynthia Alkon, Lost in Translation: Can Exporting ADR Harm Rule of Law Development, 1 Journal of Dispute Resolution, 2011, 165-188; Hazel Genn, What is Civil Justice For? Reform, ADR, and Access to Justice, 24(1) Yale Journal of Law & the Humanities, 2012, 397-417; J. Resnik, “Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights”, The Yale Law Journal, 2015, at 2804-2939; T. C.W. Farrow, Civil Justice, Privatization and Democracy, Toronto: University of Toronto Press, 2014; G. Wagner, “Private Law Enforcement through ADR: Wonder Drug or Snake Oil?”, 51 Common Market Law Review, 2014, at 165-194; B. Hess, Prozessuale Min‐ deststandards in der Verbrauchermediation, JZ 2015, 548-554.

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From Common Rules to Best Practices in European Civil Procedure: An Introduction

Cortés points out why the European Small Claims Procedure is not as ef‐ fective as was anticipated and how the recent amendments are hoped to improve its effectiveness. He calls for an online single point of entry to enforce judgments. Fernando Gascón Inchausti analyses how ADR mech‐ anisms can contribute to the improvement of court litigations in cross-bor‐ der cases through pre-action ADR and court-annexed ADR. Court pro‐ ceedings can also learn from the flexibility of experiences provided by in‐ ternational arbitration and consumer ADR. Offering a consumer perspec‐ tive, Jolanda Girzl points out the fallacies of ADR mechanisms. She iden‐ tifies that ADR systems often lack competence, creating gaps in the cover‐ age of ADR entities. Furthermore, there is a lack of awareness of the ADR options on the part of consumers, and even if they are used, traders often refuse to participate. (4) Promoting Best Practices in Judicial Cooperation Part IV includes a number of short chapters on best practices in the EU to operationalize judicial operation and to improve mutual trust. Gilles Cu‐ niberti discusses ideas on the feasibility and desirability of furthering mu‐ tual trust by way of promoting best practices. Karim Mahari discusses the difficulties that businesses experience in using the European Order for Payment Procedure from the perspective of a French Chamber of Com‐ merce. Within the scope of best practices, Arturo Picciotto focuses on how best practices of legal professionals can contribute to improve mutual trust from the perspective of a judge. To assess whether best practices can in‐ deed contribute to mutual trust, Alina Ontanu analyses the implementation of the European Order for Payment and European Small Claims proce‐ dures in England & Wales, France, Italy and Romania to see whether these procedures have indeed contributed to mutual trust. She concludes that best practices are desirable in the present patchy national legislative ap‐ proach in the application of these European procedures. (C) Some Observations on Challenges and Future Avenues Since February 2016, the political landscape in Europe has changed con‐ siderably. On the one hand, there are growing political tensions within EU Member States that directly affect their justice systems – the most promi‐

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Burkhard Hess / Xandra Kramer

nent examples in this respect are Poland and Hungary. On the other hand, the vote of the United Kingdom to leave the Union deeply impacts Euro‐ pean law of civil procedure. As a result, the prospects for judicial coopera‐ tion have changed and the acquis communautaire is increasingly chal‐ lenged. European procedural law is experiencing a time of crisis and rejec‐ tion. Against this background, the last part of this introduction addresses the present challenges and explores possible avenues of future develop‐ ment. (1) Justice for Growth and Justice as an End in Itself As a reaction to the critique about the lawmaking of the Union, which is considered to be too broad and comprehensive, the Juncker Commission has changed the lawmaking process. As a result, the Commission adopted a programme which provides a guideline of clear priorities. Each political initiative must be a part of one of these priorities. Civil justice as such has not been chosen as a priority.51 Consequently, any political initiative must be connected to one of the priorities of the Commission. Against this background, the Commission’s legislative proposals have been placed in the context of justice for growth. This perspective seems to be beneficial insofar as it focuses on the im‐ portance of the justice system for economic wealth and stability. However, one should not forgot that civil justice aims at further objectives – it does not only seek efficiency, but serves to resolve disputes in fair and just pro‐ ceedings and provides for the stability of the legal systems, which are per‐ ceived as fair and well-controlled by independent judges. In this context, the respect of fundamental rights by independent courts, which are acces‐ sible for all citizens, is of key importance for the trust of citizens in the justice systems. It is also essential for the fostering of mutual trust among the judges of different Member States operating within one European Ju‐ dicial Area.

51 The Political Guidelines of the President of the EU Commission (2014) also ad‐ dress “An Area of Justice and Fundamental Rights Based on Mutual Trust”, see https://ec.europa.eu/commission/sites/beta-political/files/juncker-political-guide‐ lines-speech_en_0.pdf

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From Common Rules to Best Practices in European Civil Procedure: An Introduction

(2) Horizontal and/or Vertical Harmonization: Towards More Coherence Nevertheless, the critique of the lawmaking processes should also be taken as an incentive to improve the present situation. These improvements should primarily address the regulatory techniques applied so far. During the last two decades, many lawmaking activities of the Union with regard to civil justice have considerably improved the situation of litigants in cross-border settings.52 However, the number of sectorial instruments tackling specific areas (such as jurisdiction and applicable law in different instruments on matrimonial property, on maintenance, on succession) has created the context in which the regulatory framework has become too complex and, therefore, difficult to access. Even specialists in family law, insolvency or cross-border litigation are no longer familiar with the whole area of European procedural law. The situation is even worse for practi‐ tioners and judges who only occasionally deal with cross-border cases. One cannot expect that they are familiar with the whole system and that they will find the right instrument and apply it properly.53 Even worse, within some EU instruments, there is a lack of uniformity in concepts and terminology. In this regard, the lawmaking processes should be improved and the existing instruments be carefully assessed. As the lawmaking pro‐ cess in EU procedural law has been generally slowed down, this might be the right moment to carefully assess and evaluate the acquis in order to make targeted improvements. In order to reduce the complexity of the multitude of EU instruments, the EU legislator might adopt a less sectorial and more horizontal ap‐ proach. The proposal of the European Parliament on a Directive on Proce‐ dural Minimum Standards might be understood as a (first) step in this di‐ rection. However, the Union actualizes only limited competences, and the

52 A telling example is the Insolvency Regulation (Reg. 1346/2000), which has en‐ abled cross-border insolvency proceedings (and restructurings) within the Union. Before its enactment, cross-border insolvencies had been rare exceptions. Within the framework of the Insolvency Regulation, multi-state insolvency proceedings can be handled efficiently. In this area of law, the case-law of the ECJ has been beneficial as well. See Hess, Europäisches Insolvenzrecht und der Brexit, (to be published in KTS (2018)). 53 The lack of information about the different instruments and the lacking familiarity with their application has been mentioned as a major impediment to the free movement of judgments, cf. F. Gascon Inchausti & M. Requejo Isidro, in Hess et al. (ed.), supra n. 1.

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enacting of a comprehensive instrument addressing civil proceedings might be too far-fetched. As a result, the Union is expected to enact addi‐ tional sectorial instruments (i.e., with regard to collective redress or con‐ cerning the protection of privacy). However, it would be of great help if the basic structures of the parallel instruments were better coordinated and the terminology of the instruments was used in a uniform way.54 (3) Towards “Minimum Common Standards”? The proposal of the EU Parliament on a Directive on Procedural Minimum Standards is a first step to a more comprehensive approach of lawmaking in procedural law. However, the proposed instrument (as it stands today) is not sufficiently coherent, and the underlying regulatory concept is not en‐ tirely clear. First, the regulatory concept of minimum standards has not been explored sufficiently. “Standards” stand somewhere in the middle of (constitutional and general) procedural principles (such as access to jus‐ tice, fair trial, party autonomy) and the definitive rules of civil procedure (such as rules on direct and substituted service). An aim or objective of “standards” might be to detail further general and constitutional principles of procedural law. A different aim is the setting of a common threshold or common rules for specific constellations (such as provisional measures, the taking of evidence or the service of the lawsuit). If one reads the provi‐ sions of the draft directive as adopted by the European Parliament in July 2017, the regulatory concept remains unclear: some rules simply reiterate the wording of constitutional guarantees, whereas others provide for rules addressing very specific issues. Furthermore, some rules address the pro‐ ceedings themselves, while others mainly address the organization of the judiciary or the relationship between the parties and the lawyers in civil proceedings. All in all, the draft directive needs considerable further im‐ provement and refinement.

54 A telling example in this respect is the unsettled relationship between the rules on jurisdiction, pendency and recognition in the General Data Protection Regulation (2016/679) and the Brussels I-bis Regulation, cf. Kohler, Conflict of Law Issues in the 2016 Data Protection Regulation of the European Union, Riv dir int e proc (2016), 653 et seq.

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From Common Rules to Best Practices in European Civil Procedure: An Introduction

(4) Best Practices: Uniform and Effective Application Before taking the next regulatory step of adopting a horizontal instrument on civil procedure, the EU legislator should undertake research on the uni‐ form and effective application of the existing instruments in the EU Mem‐ ber States. The Rotterdam conference was based on the idea of addressing the most important practical issues of European procedural law in order to get a better comprehension of areas where its application operates smooth‐ ly and to understand why its application entails problems in other areas (or regions). Furthermore, the EU Procedural Law Study organized by the Max Planck Institute Luxembourg took the same approach. A better un‐ derstanding of the application of instruments in legal practice is key for the elaboration of feasible improvements. Although this is a truism, our current knowledge of the application of the EU instruments is still insuffi‐ cient. A major impediment in this respect is the lack of reliable data about the application of different instruments. In this respect, it is high time that the EU Member States collect the pertinent data within their justice sys‐ tems in order to permit valuable empirical research. (5) Changing Dynamics in the EU At present, the upcoming Brexit constitutes the biggest challenge for the European law of civil procedure.55 In 2019, the United Kingdom will be‐ come a third state, and all instruments adopted in the area of civil justice will cease to be applicable between Britain and the remaining 27 EU Member States. Still, it is unclear whether there will be a transitional regime or not. There are two major issues that deserve attention: On the one hand, there is a need for a new regime which permits the continuation of the cooperation in civil matters between the UK and the European Union in the interest of litigants. On the other hand, the EU must be atten‐ tive with regard to the cohesion of the Civil Justice Area, which might be undermined or even impaired by a parallel system that is not based on a

55 For an English perspective, A. Dickinson, “Close the Door on Your Way Out Free Movement of Judgments in Civil Matters – A Brexit Study”, ZEuP, 2017, 538-568.

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common understanding of shared values and principles, like mutual trust and access to justice, as guaranteed by the EU Treaty and the TFEU.56 The UK government has announced that it will repeal the European Communities Act 1972, end the jurisdiction of the CJEU and copy the ex‐ isting EU acquis into UK law via a “Great Repeal Act”, which shall en‐ sure that the legal practice remains unaffected. However, it seems to be improbable that this unilateral measure will prevent the UK from being (treated as) a third state. Even the most basic achievement of the Union in this area, the free movement of judgments between Britain and the Conti‐ nent, will cease, as the legal bases are no longer applicable. Ratifying the Lugano Convention will not provide a solution: it either presupposes that the UK will (again) become a Member of EFTA57, or it requires the ratifi‐ cation of the Convention by the European Parliament. In this context, one has to carefully consider whether the Protocol no 2 on the uniform inter‐ pretation of the Convention according to the case law of the CJEU pro‐ vides for sufficient safeguards. As Brexit aims at regaining the sovereignty of the UK from the case law of the Court of Justice, there might be a ten‐ dency of the courts of the UK legal systems to interpret the Convention according to the cultural context of the common law. Alternatively, a solu‐ tion based on international treaties (especially those of the Hague Confer‐ ence) might be a better solution in order to avoid the negative impacts of a “half” Brexit on the functioning of EU procedural law. Treaty-based solu‐ tions might also be the way forward in areas where no substitute for the existing EU instruments exists, as is the case in insolvency and (most) family matters.58 Although the technical challenges of Brexit might be solved (certainly at a price that London, as one of the most favored places for litigation un‐ der the Brussels I-bis Regulation, will probably have to pay), the cultural losses for the European law of civil procedure will be much bigger. Since 1978, the cross-fertilization between the Continental and the Common

56 In this respect, the role of the case law of the CJEU is key to the coherence and the functioning of the present system. 57 Art. 69(1) Lugano Convention 2007. 58 I.e., rules on jurisdiction and recognition of divorce judgments, which are current‐ ly found in the Brussels II-bis Regulation, cf. J.M. Carruthers & E.B. Crawford, “Divorcing Europe; reflections from a Scottish perspective on the implications of Brexit for cross-border divorce proceedings”, Child & Family Law Quarterly, 2017, (Special Brexit Issue).

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From Common Rules to Best Practices in European Civil Procedure: An Introduction

Law approaches to procedural law has been very fruitful and has constitut‐ ed one reason for the success of this area of law.59 In this respect, regrets are shared on both sides of the Channel.60 Yet, what counts is the protec‐ tion of litigants affected by Brexit. Just to take up one example, family disputes across the Channel will continue after 2019, and it is of paramount interest for all European families which settled in Britain and on the Continent that a solid framework for the resolution of their disputes will be available at this time. Or to put it differently, limping marriages be‐ tween Britain and the EU27 must avoided.61 (D) Concluding Remarks Now that flood of new instruments experienced in the past fifteen years is over, the time has come to take stock, and to evaluate and reflect on the process of Europeanization of civil procedure and what has been achieved. However, before focusing on individual instruments and trends in Euro‐ pean civil procedure, with the development of collective redress, ADR and e-justice as perhaps key issues in the current debate, it is important to take a step back and consider what the fundamentals of EU civil procedure are. In recent years, the economic crisis, accompanied by the quest for econo‐ mic growth, has been the main driver of legal policy initiatives and legis‐ lation. While the economic perspective will continue to be important, it is essential that delivering justice to EU citizens based on the rule of law and through fair and efficient proceedings is the primary goal. The vision on the future of EU civil justice should be built on these notions. In the further development of EU civil procedure, horizontal instru‐ ments to implement common – not necessarily minimum – rules are of the essence to secure these fair and efficient proceedings, coupled with tai‐ lored sector-specific instruments. While EU law making is to a large ex‐ tent a top-down process, best practices – both in law making and legal

59 Hess, IPRax, supra n. 39, at 418. 60 Dickinson, supra n. 55, at 562-563. Different opinion A. Briggs, Secession from the European Union and private international law, COMBAR lecture 24 January 2017, at: https://www.blackstonechambers.com/news/secession-european-unionand-private-international-law-cloud-silver-lining/. 61 A. Dutta, “Brexit and international family law from a continental perspective”, 29 Child and Family Law Quarterly, (2017), 199, at 204.

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practice – in the Member States can and should also be more actively pro‐ moted. Though the concept of “best practices” is inherently complex, as what works within the specific procedural context of one Member State does not necessarily work in another, when it comes to the application of EU instruments in particular, such practices in terms of fairness and effi‐ ciency can be discerned. Judicial cooperation will benefit from sharing ex‐ periences, creating mutual understanding and genuine mutual trust in the European area of justice. In the changing composition and inherent dy‐ namics of the European Union today, this is more important than ever.

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Common Rules and Best Practices From the Perspective of the European Commission Norel Rosner Legislative Officer, Unit Civil Justice Policy, DG Justice, European Com‐ mission1

"I may be mistaken, of course, but I do think that procedural law has today become the most important branch of the law." This is how Professor Storme started his welcoming speech at the first international Congress on the law of civil procedure, held in Ghent in the summer of 1977. These words, however, belong to the late professor Mauro Cappelletti and date back to July 1976. I am not sure whether procedural law is the most important branch of law, but procedural rights matter greatly, not just in criminal matters, but also in civil matters. When civil judgments are refused recognition or en‐ forcement in other Member States, it is mostly because of doubts arising from divergences in Member States’ procedural laws. Respect for the procedural rights of the parties is a core component of the mutual trust on which the smooth functioning of the European area of justice depends. Legal practitioners and judges must have full confidence in judgments given in other Member States. This was underlined in the Commission’s Communication "Justice 2020", which refers in particular to matters relating to service of docu‐ ments, taking of evidence, and ensuring the best interests of the child in family proceedings. Several existing civil justice instruments contain, to different degrees, procedural rules. Of relevance in this context are the Regulations on Ser‐ vice of Documents and Taking of Evidence, the so-called European Proce‐

1 This chapter has not been adopted or endorsed by the European Commission. Any views expressed are the preliminary views of the Commission services and may not in any circumstances be regarded as stating an official position of the Commission. It has been drafted for the sole purpose of participation at the conference "From common rules to best practices in European Civil Procedure" – Rotterdam – 25-26 February 2016

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dures (Small Claims/European Payment Order/Bank Account Preservation order) but also other procedural rules to be found in more general civil jus‐ tice instruments, such as Brussels I or Brussels IIa. In addition to the standards set out in various civil justice instruments, procedural standards have been developed, in the context of the interpreta‐ tion of these instruments, through the case law of the Court of Justice in order to ensure adequate judicial protection of citizens in the Union and/or the effet utile of the existing rules. However, beyond the legislative and interpretative efforts undertaken in the last fifteen years, it is clear that the implementation of these rules in the national procedural laws of the Member States could provide useful examples, either of best practices or, on the contrary, of how things should not be done. This conference is therefore a very good initiative in order to find out about such best practices from the experts in the field of civil procedure in the European Union. If I were to use a real life comparison, I would say that in the last 15 years the producer, in this case the European legislator, has marketed quite a few products in this field, the EU civil justice instruments. Now it's the time for the after-sale maintenance, in other words to focus on implemen‐ tation. I stand to be corrected by the organisers of this conference, but it seems to be that this event has to be seen in this context, in other words of sharing knowledge and experience about the actual implementation of these rules. We, at the Commission, stand to benefit too from such events. For in‐ stance, it would be interesting to hear during these two days whether there is an established practice in the Member States identifying those rules of national procedural laws which are considered to be "…essential in the le‐ gal order of the State in which enforcement is sought [or which uphold] a right recognised as being fundamental within that legal order." (Krom‐ bach, paragraph 37, Gambazzi, paragraph 27). Precisely in order to determine these elements, the Commission has re‐ cently undertaken concrete actions with regard to civil procedure. We are currently carrying out a comparative legal analysis of service of docu‐ ments in the Member States which aims at providing the Commission with the necessary information on the laws and practices of the Member States with regard to the service of documents in civil proceedings with the view to evaluate the practicability and feasibility of minimum standards in the area of service of documents in cross-border situations. For instance, 32

Common Rules and Best Practices From the Perspective of the European Commission

cross-border service of documents could be one of those areas where the potential of the new communication technologies needs to be explored, bearing in mind respect for the rights of the parties and reduced litigation costs. Going further and in a more holistic way, we have recently launched an evaluation study of national procedural laws and practices in terms of their impact on the free circulation of judgments. The study has also a pro‐ cedural law component related to the application of EU consumer law. Obviously several – if not numerous – aspects of civil procedure that will be dealt with in these studies are also subject of the discussion during these two days. I am looking forward to the outcome and conclusions of these discus‐ sions. Listening to the interventions during these two days I am convinced that the added value of such conferences to the future of the civil proce‐ dure in the European Union will be undoubtedly demonstrated.

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Common Rules and Best Practices From the Perspective of the European Parliament Robert Bray Head of Unit, Committee on Legal Affairs of the European Parliament

It is not only a privilege and an honour, but also a great pleasure to address you here at the Erasmus University.1 As I look around the hall I see many friends who have partaken with me of the work of the European Parlia‐ ment’s Committee on Legal Affairs, especially in the field of civil proce‐ dure and private international law, and I think of Erasmus, himself alive at a time when England broke for the first time with a supranational organi‐ sation, as it is threatening to do now, and again for the most venal reasons. We are living in sad times indeed. But then I imagine Erasmus, walking with Thomas More or John Colet on the banks of the Thames or in Paris or Basle, friends, deep in earnest conversation, and I am struck once again by the fact that all this work that we have been engaged upon has served, not only to make life easier for litigants, practitioners and judges – or at least we hope it has – but to draw people together and promote mutual un‐ derstanding and friendship. It is an exercise in humanism. As Erasmus himself said in a letter to a friend, “That you are patriotic will be praised by many and easily forgiven by everyone; but in my opinion it is wiser to treat men and things as though we held this world the common fatherland of all”.2 This is what I mean in the widest sense as “best practice”. But revenons à nos moutons: first of all, I must enter the usual reserva‐ tion: I may work for the European Parliament but I cannot speak for it – no one can, least of all a mere civil servant. What I say reflects my opinion alone. Secondly, Parliament’s Legal Affairs Committee, in the person of its Chair Professor Pavel Svoboda, is an official observer of the work which

1 Speech made at the Conference on Common rules and best practices in European civil procedure, jointly organised by the Erasmus School of Law and the Max Planck Institute, Luxembourg, held at Erasmus University Rotterdam on 25-26 February 2016. 2 Letter 480, to Budé (ed. Allen).

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is under way between the European Law Institute and Unidroit and this has encouraged the committee to take up the question of minimum stan‐ dards of civil procedures on its own initiative. Thirdly, I would stress that I am here above all to learn. As you all know, the corridors of the European institutions are stalked by a chimaera, an unnatural monster completely alien and unknown in perfect parliamentary systems such as the British, whose name is …. the Democratic Deficit. Arguably, one of the few proofs of its existence – al‐ though the Lords of the Treaties did make it an inherent part of the system – is the fact that unlike national parliaments, the European Parliament has no right to initiate legislation, except in the limited fields of the Statute of Members, the Ombudsman's regulations, Parliament’s right of inquiry and the provisions necessary for the election of its Members by direct univer‐ sal suffrage in accordance with a uniform procedure in all Member States or in accordance with principles common to all Member States. However, under Article 225 TFEU, the European Parliament may, act‐ ing by a majority of its component Members, request the Commission to submit any appropriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Treaties. If the Commission does not submit a proposal, it is supposed to inform the European Parliament of the reasons why it did not. In the past, its reasons have often been neither convincing nor emanating from an official of ap‐ propriate standing. Article 225 has been used to good effect by the Committee on Legal Affairs in the past, where legislation on motor vehicle insurance – culmi‐ nating in the fourth motor insurance directive of 20003 which provided, re‐ markably, that parties injured as a result of a motor vehicle accident occur‐ ring in a State other than that of their residence should be entitled to claim

3 Directive 2000/26/EC of the European Parliament and of the Council of 16 May 2000 on the approximation of the laws of the Member States relating to insurance against civil liability in respect of the use of motor vehicles and amending Council Directives 73/239/EEC and 88/357/EEC (Fourth motor insurance Directive), OJ 2000, L 181. The rapporteur for the legislative initiative was, of course, Willi Roth‐ ley. This directive was followed by a fifth, Directive 2005/14/EC of the European Parliament and of the Council of 11 May 2005 amending Council Directives 72/166/ECC, 84/5/ECC, 88/357/EEC and 90/232/EEC and Directive 2000/26/EC of the European Parliament and of the Council relating to insurance against civil lia‐ bility in respect of the use of motor vehicles, OJ 2005, L 149, again the result of a legislative initiative of Willi Rothley.

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Common Rules and Best Practices From the Perspective of the European Parliament

in their Member State of residence against a claims representative appoint‐ ed there by the insurance undertaking of the responsible party – and, to name another major file, the regulation on wills and successions,4 were successfully enacted in part at least on the strength of legislative initia‐ tives. Incidentally, the Committee has taken up at least one idea for reform in the field of – at least in some countries – civil procedure from the previous legislature, when the rapporteur was the present President of the European Law Institute, Diana Wallis – that of standard limitation periods for road traffic accidents with trans-border ingredients.5 I would note in passing that the Commission has not been prepared to comment on the work of the committee chair on this initiative, which bodes ill for its success. But to come to the subject of this conference and of my talk today, among the legislative initiative reports under preparation is one on com‐ mon minimum standards of civil procedures. Its rapporteur is a Bulgarian Member of the European Parliament, Emil Radev, and work has just be‐ gun. Last week, in fact the rapporteur presented a working document. I would further observe that the European Parliament Research Service or EPRS has already produced a document entitled “Europeanisation of civil procedure – Towards common minimum standards?”.6 The ERPS will also be producing a European Value Added Study, of which I have had the ben‐ efit of reading a first draft, and the Committee’s Policy Unit will be hold‐ ing a workshop in spring this year. From this, you will gather that the European Parliament – and particu‐ larly its Legal Affairs Committee – is good news for academics. Indeed, the Legal Affairs Committee has always been keen on holding hearings

4 Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, OJ 2012, L 201. Whereas the rapporteur for the regulation was Kurt Lechner, the Commission pro‐ posal was preceded by a legislative initiative, for which the rapporteur was Giuseppe Gargani. 5 European Parliament resolution with recommendations to the Commission on limi‐ tation periods in cross-border disputes involving personal injuries and fatal acci‐ dents, 2006/2014(INI), http://www.europarl.europa.eu/sides/getDoc.do? type=TA&language=EN&reference=P6-TA-2007-20. 6 See http://www.europarl.europa.eu/thinktank/en/document.html?refer‐ ence=EPRS_IDA%282015%29559499.

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and workshops and commissioning studies. Its constant plea for more and better impact assessments has been reflected in the Commission’s efforts to make its own impact assessment board more independent. As for the European Parliament itself, it has for a long time been attached to the idea of promoting evidence-based legislation and, to this end, it established the EPRS on 1 November 2013. The Directorate General consists of the Di‐ rectorate for the Library, the Directorate for Impact Assessment and Euro‐ pean Added Value and the new Members' Research Service – which pro‐ vides briefing and research services for individual MEPs – publishes a range of synoptic publications. The Directorate for Impact Assessment and European Added Value consists of four units, for (i) ex-ante impact assessment, (ii) ex-post impact assessment, (iii) European added value and (iv) science and technology options assessment (STOA). So that is the procedural side of the initiative on minimum standards of civil procedures. But what can we say about its rationale and content? Its rationale is clear: first and foremost, there is a concern to promote the "mutual trust" which is supposed to underlie the free movement of judgments; secondly, the Committee is anxious to promote the external projection of the Area of Freedom, Justice and Security. I will not dwell on the latter aspect now, but would point to the recent visit of a delegation from the Committee to Ukraine, the participation of Members of the Com‐ mittee in an interparliamentary conference on Towards Independent and Modern Judicial Systems in the Enlargement Countries held in Montene‐ gro by the European Parliament's Pre-Accession Actions Unit earlier this year, the recent meetings of a committee delegation with the State Depart‐ ment and the World Bank in Washington and the committee’s planned vis‐ it to Georgia this spring, all of which reflect this concern. To sum it up in a single sentence, without a decent legal system, a well-functioning judicia‐ ry and civil service and good rules of civil procedure, you will never have the benefits of a well-functioning free-market economy. Up to now, the EU and the Court of Justice have tended to say that the Member States have to apply the instruments the EU has created, such as the arrest warrant and the various civil law instruments, because there is mutual trust. The Legal Affairs Committee’s instrument starts from the op‐ posite approach by saying that if, in the civil law field, we have done such things as abolishing exequatur in the Brussels Ibis regulation on jurisdic‐ tion and recognition and enforcement of judgments in civil and commer‐

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Common Rules and Best Practices From the Perspective of the European Parliament

cial matters7 (although the Legal Affairs Committee qualified this much more than the Commission wished to do so in its original proposal), we need to bolster mutual confidence and trust in each other’s legal systems by introducing some sort of minimum standards to which we can all ad‐ here. This, of course, is easier said than done and it will only become clear what the rapporteur will propose and whether the Committee will go along with his ideas when a proper reflection and in-depth research have been carried out. I do not have the benefit of a crystal ball and I cannot see into the rap‐ porteur’s mind, but I do have a few observations to make. First, I feel very strongly after working in this field since the 1990 s that the EU has been very cavalier in dealing with Member States’ legal sys‐ tems. Practitioners, judges and politicians from common law jurisdictions – or one in particular – have been particularly sensitive to the idea that their system has been put under threat from the “tide of Community law” so graphically described by the late Lord Denning.8 But to my mind this can be dismissed in colloquial English with a hyphenated expletive. The common law can absorb anything: indeed even two pieces of coexisting legislation on unfair contract terms – the one domestic, the other European – to the delight of those who set law examinations. It is the countries which have codes which have suffered the most from the EU’s law-making activity. Consider the intrinsic beauty of the Dutch civil code and of codes of civil procedure. They take years to draw up and then along comes the EU and messes them all up. On the other hand, as Pierre Legrand has pointed out (inadvertently), there is no point in having a European Civil Code – supposing such a thing were attainable or even desirable – without uniform procedural law.9

7 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judg‐ ments in civil and commercial matters, OJ 2012, L 351. 8 “The Treaty [of Rome] does not touch any of the matters which concern solely Eng‐ land and the people in it. These are still governed by English law. They are not af‐ fected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It can‐ not be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute”, H.P. Bulmer Ltd v. J. Bollinger SA [1974] Ch 401 at 418. 9 P. Legrand, “Antivonbar”, 1 JCL (2006) 13, at 26.

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Robert Bray

But, in any event, nothing is set in stone. We are at the beginning of a journey and it is people like you that can influence the European Parlia‐ ment’s final decision. Although we are talking about a possible legislative initiative, that is to say a regulation or a directive, there is also the possibility that the end product could be a proposal for a soft-law measure, such as a recommen‐ dation. There is also the possibility that the final outcome will be similar to what the EU managed to do in the field of criminal law where all we man‐ aged to achieve was a letter of rights, rules on interpreting and legislation on the principle ne bis in idem. This could be a path to take. I would point out that the Legal Affairs Committee has observer status with regard to what is going on in ELI and UNIDROIT. Their work will clearly be influential on the committee’s deliberations and I will be urging members and colleagues not to be too precipitate in pressing ahead before ELI and UNIDROIT have formulated their ideas. Obviously, the Committee would not contemplate enacting the future principles – that would be going too far and would not even be practical or politically possible. But it will be interesting to see how far, if at all, the Committee can distil minimum standards of civil procedure from their work and the work of other bodies (such as the Network of Councils of the Judiciary, the CCBE, and so on), provided that there is an added value, to use that loathsome expression which has become indispensable. Merely to reproduce the relevant provisions of say the Charter of Fundamental Rights of the EU for instance would be fatuous and pointless. This is why we will be looking closely at what ELI and UNIDROIT will be achieving. Several questions arise in connection with this initiative, which I would like to offer up for reflection. First of all, how can this be linked up with the ELI/UNIDROIT initia‐ tive? Can the Committee offer support indirectly through targeted re‐ search, for instance. Secondly, to what extent is it in fact desirable or feasible to legislate on common minimum standards of civil procedure? Whether action to harmonise procedural law would improve matters or make things worse, I cannot yet say. I would venture to suggest, however, that DG Justice might start by ironing out the discrepancies that exist be‐ tween the instruments that have already been adopted in the civil law field.

40

Common Rules and Best Practices From the Perspective of the European Parliament

It might also be an idea to codify and align all the existing EU instruments in the field of private international law.10 As far as good practice is concerned, I would also mention the Commit‐ tee’s attachment to the idea of creating a “European judicial culture”, with all lawyers’ training having to include knowledge of at least one foreign language, one foreign legal system and some experience of comparative law.11 Lastly, we are going to have to determine whether there exists a legal basis for such an initiative. Article 81 TFEU, the legal basis for judicial cooperation in civil matters, requires there to be a cross-border element; if the harmonisation of rules of domestic civil procedure could be deemed necessary for the functioning of the internal market, Article 114 TFEU could be prayed in aid. But would it be possible to combine these two le‐ gal bases in view of the Danish opt-out and the British and Irish opt-ins? In my view, it would be impossible to combine those two legal bases be‐ cause Article 81 completely precludes Danish participation, whereas Arti‐ cle 114 requires it, and the situation of Ireland and the United Kingdom leaves one in the position of Schrödinger’s cat. Last of all, I had several interesting conversations last evening as one does on these occasions. One related to the European payment order12 and the question of actually road-testing so to speak the instruments we are contemplating creating in the habitat they have to work in – the national legal systems – before we adopt them. This would be more than an impact assessment and it would avoid situations in which instruments work well in one Member State but not in others. I would note in this context that the

10 See X. Kramer et al., A European Framework for private international law: current gaps and future perspectives, European Parliament Study, 2012; European Parlia‐ ment, European Code on Private International Law: Cost of Non Europe Report, 2013, both available at http://www.europarl.europa.eu/thinktank/en/search.html? keywords=006023. See also J. von Hein and G. Rühl, “Towards a European Code on Private International Law?”, in European Parliament, Cross-border activities in the EU – Making life easier for citizens, Workshop for the JURI Committee, 2015, http://www.europarl.europa.eu/RegData/etudes/STUD/2015/510003/IPOL_STU %282015%29510003_EN.pdf. 11 See the European Parliament resolution of 23 November 2010 on civil law, com‐ mercial law, family law and private international law aspects of the Action Plan Implementing the Stockholm Programme, 2010/2080(INI). 12 Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure, OJ 2006, L 399.

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European Parliament is increasingly examining the way in which EU leg‐ islation is being applied in the Member States through the use of so-called “implementation reports”.13 Then I started to reflect that even if the present initiative comes to naught in terms of legislation, it will not have been for nothing. Reforms of civil procedure and the adoption of best practices can come about when difficult situations are examined in the cruel light of day and comparisons begin to be made with how other people do things. A.P. Herbert – a lawyer and a Member of Parliament for Oxford Uni‐ versity14 – pressed for and sometimes brought about reforms of institu‐ tions of English procedural law by gently ridiculing them in his book Un‐ common Law15 – the King’s Proctor for instance.16 Thinking too of that great legal philosopher H.L.A. Hart, also of Ox‐ ford, and his masterpiece the Concept of Law,17 in which, after finding that legal philosophers, absurdly, could not define what they understood by “the law”, the whole subject of their studies, he defined law as the rules of the game, it struck me that studying procedural law may lead us to an even more profound understanding of what law actually is. Maitland found in his seminal work, The forms of action at common law,18 what could also be said of Roman law, that the substantive law in the old days was “hidden in the interstices of procedure” – it is not altogether untrue now and we need to bear it in mind, along with the intrinsically cultural aspects of procedural law. I leave these matters for your reflection.... Thank you for your attention.

13 Cf. draft report on the application of the European Order for Payment Procedure, 2016/2011(INI), Rapporteur: Kostas Chrysogonos. 14 The Universities of Oxford and Cambridge each elected two members to the British Parliament from 1603 to 1950, A.P. Herbert being one of the last MPs to be so elected. 15 A.P. Herbert, Pipp, M.L., v. Pipp, K., and Forest, The Decree Nisi, Uncommon Law, Methuen, 1935. 16 An official who after the grant of a divorce decree nisi was allowed six months to find evidence of improper behaviour by the "innocent" partner either before or af‐ ter the grant of the decree nisi – which could set everything back to the starting point. 17 H.L.A. Hart, The Concept of Law, Clarendon Law Series, 1961. 18 F.W. Maitland (A.H. Chaytor and W.J. Whittaker, eds), The forms of action at common law, Cambridge, 1910.

42

Harmonizing Civil Procedure: Initial Remarks Remo Caponi Professor of Civil Procedure, University of Florence, School of Law

(A) Preliminary Remark “The need for common standards of EU civil procedure and how to identi‐ fy them: Do we need harmonization to achieve harmonious cooperation?” That is the topic of the first panel, which is arguably the broadest in the framework of the conference, as it does not include any explicit limitation concerning the purposes of harmonization, the types of standards, the kinds of phenomena worth being harmonized and, indeed, the sorts of co‐ operation worth being achieved.1 (B) The Notion of a “Standard” It is worth focusing first on the notion of a “standard”. A common defini‐ tion of which is: “[...] something established by authority, custom, or gen‐ eral consent as a model or example”.2 This definition recalls somehow the Urformen der Begründung von Rechtsverbindlichkeit: that is to say, the “Original patterns of justification of the binding force of legal norms”, ac‐ cording to a lecture given by Hasso Hofmann in Würzburg in 1993: Gebot, Vertrag und Sitte.3 Rules of conduct issued by authorities (Gebot), stemming from party autonomy (Vertrag), or consisting of established pat‐ terns of behaviour that can be found within a particular social setting (Sitte) can be considered major sources of normativity.

1 The research leading to this contribution has received funding in the framework of the research project of national interest (PRIN) 2012 (2012SAM3KM) on Codifi‐ cation of EU Administrative Procedures, financed by the Italian Ministry of the University (coordinator Prof. Jacques Ziller, University of Pavia). 2 At www.merriam-webster.com (last accessed 22 July 2016). 3 H. Hofmann, Gebot, Vertrag, Sitte. Die Urformen der Begründung von Rechtsverbindlichkeit, Nomos, 1993.

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By considering in depth the last phenomenon − namely, the social norms − one can observe that their normativity can be grounded on either cultural views or ethical convictions. Thus, cultural attitudes and ethical beliefs can promote legal harmonization or inhibit it, depending on the given circumstances. Social norms are more important in defining stan‐ dards than the legislator or party autonomy, because an appropriate cultur‐ al background is required in order to draft rules or contractual terms. Ad‐ ditionally, political obligation, that is to say the duty to obey the law, is probably grounded, at least in part, in moral obligation. Developing Hofmann’s approach, one could argue that cultural and eth‐ ical norms are foundational for lawmaking and for the duty to apply the law. Cultural views and ethical beliefs that facilitate the achievement of a large degree of legal harmonization do not come "out of the blue". On the contrary, considerable effort is required in creating and exploring avenues of mutual understanding: for example, by fostering transnational spaces of communication among legal practitioners, judges, and academics. In other words, legal harmonization requires first of all a process of cultural ex‐ change and approximation amongst peoples and, especially, professionals who live in countries whose legal systems are to be harmonized. (C) Procedural rules, financial resources, mindsets One can easily apply these opening remarks to the harmonization of civil procedure. One can start by recalling the main factors that cause any given judicial system − and thus any project of harmonization of civil procedure − to succeed or fail. In essence, three criteria stand out, and they can be placed on an ascending scale of importance: first, skilfully drafted proce‐ dural rules; second, appropriate financial resources; and third, the mental attitude of parties, legal practitioners, and judges. The first factor requires that the procedural rules be skilfully drafted and adequate to meet the expectations of parties, practitioners, and judges. This is only a first element, which is not conclusive, since − as stated by Virgilio Andrioli, an outstanding Italian scholar in 20th-century civil pro‐ cedure − there has never been either a procedural law so well constituted such as to prevent bad practices or, conversely, a procedural law so mis‐ guided as to prevent good practices of judicial proceedings.

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Harmonizing Civil Procedure: Initial Remarks

Justice is administered in courthouses, not simply through written words in statutory provisions. It needs, in fact, considerable financial in‐ vestment on the part of governments. Thus, the second factor is the avail‐ ability of financial resources in order to implement the procedural law in a satisfactory way. If I may introduce a perspective from my own country, this is of a key importance in order to understand the reasons for the undue delay of ordi‐ nary civil proceedings in Italy. The huge workload of and backlog in the courts play the leading role in this problem. However, it would not be fair to say that there is “too much” litigation in Italy (and possibly every‐ where), just as it would not be fair to say that there are too many sick peo‐ ple or too many people who want to make use of public transport. There can only be governments that are unable to put courts, hospitals, and pub‐ lic transport companies in the position to perform their duties and to cope with their caseloads, patients, and passengers. The huge workload of courts is primarily due to the fact that for decades the ratio of the number of judges to the number of civil cases to be dealt with has been un‐ favourable. There are too few judges in relation to the disputes to be re‐ solved. The number of judges per 100,000 inhabitants in Italy is lower than that of most European countries.4 Moreover, the performance of judicial systems depends not only on carefully drafted rules and adequate financial resources but also on the role played by a third factor: this involves mindset, cultural views, ethical beliefs, style, usage and customs affecting policy makers, and people and professionals involved in the machinery of justice. For instance, the propensity of individuals to litigate depends considerably also on cultural and ethical attitudes, such as the degree of honesty, fairness, integrity, and good faith that characterises human relations in a given environment and in a given historical moment; the degree of individuals’ social responsibil‐ ity and awareness of their rights; and the habit of resorting to methods of alternative dispute resolution, and so on. A major role is also played by habits of mind, professional skills, and the level of cooperation among judges, practitioners, and judicial staff. For example, the fast-paced devel‐ opment of technologies, as it occurs today, also requires an ability to adapt to new standards of technology. Even the availability of adequate financial 4 Cf. R. Caponi, “The Performance of the Italian Civil Justice System: An Empirical Assessment”, 2 The Italian Law Journal (2016), Issue No. 01, available at SS‐ RN: http://ssrn.com/abstract=2811814.

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Remo Caponi

resources is of little benefit if it does not come with the managerial skills required to manage these resources in an efficient way. Propensities to litigate, the habit of resorting to ADR, and professional and managerial skills are all mainly cultural issues. Thus, judicial practice is influenced by a number of factors, among which the binding force of legal rules plays a less critical role than the mindset, cultural views, and ethical beliefs of parties, judges, and professionals.5 In short, the third factor, the cultural one, is the most important, since it enhances the role of skilful drafting and financial resources. (D) Harmonization of Civil Procedure: Criticism Herein lies a criticism with regard to the projects of harmonization of civil procedure. According to a first narrative, a real convergence among national laws of civil procedure, which goes beyond a few widely shared (at least de ju‐ re) but very general principles − such as party autonomy and party dispo‐ sition, independence and impartiality of the court, and right to be heard6 − is a kind of “mission impossible”. This is because the mindset, cultural views, and ethical beliefs of parties, judges, and lawyers do not cross na‐ tional boundaries easily, while legal institutions in this field are irreconcil‐ ably diverse. According to this view, civil procedure is perceived as one of the branches of the law most closely linked to a national environment, and could be studied and practiced as a purely national product, as a number of scholars, judges, and practitioners in civil procedure still do today in many countries. Nineteenth- and 20th-century nationalism contributed to an en‐ tirely national approach to civil procedure, to a greater extent even than in substantive law. It might be only natural, therefore, that classical handbooks and com‐ prehensive books about comparative civil justice usually start by pointing to “the diversity of arrangements and institutions through which justice is

5 For a definition of “practice of the law” as “a whole series of legal relevant con‐ ducts engaged by a homogeneous social group”, cf. J. Ghestin, “Rapport de syn‐ these”, in Le role de la pratique dans la formation du droit, Economica, 1985, at 17. 6 J. Zekoll, “Comparative Civil Procedure”, in R. Zimmermann and M. Reimann (eds), The Oxford Handbook of Comparative Law, OUP, 2006, at 1335.

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Harmonizing Civil Procedure: Initial Remarks

variously administered in modern states”,7 or contrasting procedural sys‐ tems as far as the machinery of justice and key features of proceedings are concerned.8 Accounts of civil justice systems in a comparative context are often dominated by dichotomies, beginning with the old contrast between An‐ glo-American (common-law) and Continental (civil-law) systems of civil procedure, passing through the opposition between adversarial and in‐ quisitorial systems as well as the distinction between conflict-solving and policy-implementing types of proceedings.9 The division into Romanic, Germanic, and Anglo-American Procedure is, in addition, a widely held perspective.10 These oppositions and distinctions are centred mainly on the political and cultural foundations of the machinery of justice. They are outlined from the perspective of the state administering justice and, as such, tend to point to the undeniable differences in the response of the state to the demand for justice arising from individual litigants. To be sure, the diversity of procedural systems across the world is re‐ markable. However, not all differences in the institutional setting and in the forms of justice are visible at first sight. Superficial similarities can hide deeper differences. It also happens, although more rarely, that osten‐ sible differences hide a fundamental unity.11 (E) Praesumptio Similitudinis? Insofar as one’s personal experience may count, I came to detect these phenomena while researching over a period of two decades in the field of Italian civil procedure, and comparing it with German civil procedure. At the initial stage, my research was guided by an unconscious preconception rooted in the historic influence exercised by the German legal culture over the Italian one. My attention was drawn to the reassuring search for simi‐

7 So M. Damas̆ka, The Faces of Justice and State Authority. A Comparative Ap‐ proach to the Legal Process, Yale University Press, 1986, at 1. 8 Cf. O.G. Chase et al. (eds), Civil Litigation in Comparative Context, Thomson West, 2007, at 3. 9 M. Damas̆ka, supra n. 7, at 97 and 147. 10 Cf. R. Stürner, “Procedural Law and Legal Cultures“, in P. Gilles and T. Pfeiffer (eds), Prozessrecht und Rechtskulturen. Eröffnungsvortrag und Deutsche Landes‐ berichte zur Weltkonferenz für Prozeßrecht in Mexico City, Nomos, 2004, at 9. 11 See M. Damas̆ ka, supra n. 7, at 1.

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larities between the two legal systems. I was not even aware that method‐ ologically I was obeying a kind of praesumptio similitudinis rule.12 Never‐ theless, such a preconception helps to reduce one’s initial sense of bewil‐ derment when embarking on a study of another legal system. A more ma‐ ture phase followed in which ostensible similarities acted as a kind of “yellow flashing light” signalling a need for in-depth analysis and an in‐ quiry to determine whether similarities hide underlying differences. Final‐ ly, I reached a third phase, while sharing Eugen Ehrlich’s point of view: “The center of gravity of legal development therefore from time immemo‐ rial has not lain in the activity of the state, but in society itself, and must be sought there at the present time".13 Thus, I started looking for differ‐ ences in the “law in action” that are likely to be provoked by the differ‐ ences in mindset between Germans and Italians, despite the relative prox‐ imity of these legal traditions.14 This approach should not, however, be understood as being affected by a preconception that is opposite to the praesumptio similitudinis. It is instead a kind of “methodical doubt” à la Descartes while applying the functional method to the comparative study of judicial institutions and dispute resolution methods. (F) Procedural Law and Culture However, one should be cautious with simple causal assertions, such as those treating culture as a factor external to law that shapes behaviour and institutional arrangements.

12 K. Zweigert and H. Kötz, Introduction to Comparative Law, 3rd rev. ed., Claren‐ don, 1998, at 40: “as a general rule developed nations answer the needs of legal business in the same or in a very similar way”. On the praesumptio similitudinis see R. Michaels, “The Functional Method of Comparative Law”, in M. Reimann and R. Zimmermann (eds), supra n. 6, at 369. 13 So E. Ehrlich, Fundamental Principles of the Sociology of Law, Transaction Publ., 2002, at 390. 14 Cf. R. Caponi, “ ‘Ciò che non fa la legge, lo fa il giudice, se capace’: l’impatto costituzionale della giurisprudenza della Corte di cassazione italiana”, in V. Bar‐ sotti and V. Varano (eds), Il nuovo ruolo delle corti supreme nell’ordine politico e istituzionale: una prospettiva comparatistica, Esi, 2011.

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Harmonizing Civil Procedure: Initial Remarks

As to civil procedure, it is worth noting that new codes and procedural rules can, conversely, stimulate and alter the culture of parties, judges, and lawyers in remarkable ways.15 One of the most prominent, recent examples is possibly the new Span‐ ish code of civil procedure of 2000. The change from the three-stage pro‐ cedural model − originating from the Italian-canonical procedure and made up of a mostly written handling of the case − to the main hearing model, which requires case management by a professional judges from the very beginning of the proceedings,16 has in Spain resulted in a substantial change in the mindset, cultural habits, and professional skills of judges and lawyers concerning the handling of cases. It is not by chance therefore that among the main novelties introduced by the Lisbon Treaty regarding the development of judicial cooperation in civil matters in the European Union there is the adoption of measures supporting the training of the ju‐ diciary and judicial staff.17 Thus, taking into account the complex and mutually conditioning rela‐ tionships between legal culture and practice of the law, one can counter criticisms of the harmonization of civil procedure with a second narrative, whereby emphasising the deeper structure common to the machineries of justice across the world − which include access to justice as well as effect‐ ive and efficient protection of rights within a fair process − can foster har‐ monization efforts. It is not by accident that the first joint project of two highly respected institutions for the harmonization of law, Unidroit and the American Law Institute, concerned the “Principles of Transnational Civil Procedure” (2004). The American Law Institute had never adopted a series of princi‐ ples and rules for the international harmonization of law. Traditionally, the field of its efforts had been the harmonization of the domestic law of the federal states. For Unidroit, it was a first in the field of civil procedure.

15 O. G. Chase, Law, Culture, and Ritual. Disputing Systems in Cross-Cultural Con‐ text, New York Univ. Press, 2005. 16 Cf. R. Stürner, “The Principles of Transnational Civil Procedure. An Introduction to Their Basic Conceptions”, in 69 RabelsZ (2005), at 223. 17 Cf. Art. 81, II, h TFEU. On that basis, according to the EU Justice Agenda for 2020, the EU should make full use of existing networks to facilitate the training of legal practitioners and to help reach the objective of training 50% of them – a total of 700,000 – in EU law by 2020. Cf. the EU Justice Agenda for 2020 – Strength‐ ening Trust, Mobility and Growth within the Union (2014), EUR-Lex – 52014D‐ C0144 – EN.

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The intention was to bridge the gap between common law and civil law traditions, combining the most attractive attributes of the two systems, and avoiding the hardships of litigation under a foreign procedural system.18 The project has been advanced by lawyers and scholars belonging to dif‐ ferent procedural law traditions and cultures, and the result is of great val‐ ue due to the balanced approach of the proposed solutions. A series of principles have been identified that should be considered as a common set of requirements for guaranteeing a fair trial in transnational litigation. These principles should be not only a point of reference in the scientific debate on this issue but also a model for legislators. Moreover, they should serve as interpretative guidance for judges dealing with transnational liti‐ gation. Finally, they could be used as a kind of benchmark against which national and regional norms can be compared.19 The ALI/Unidroit Principles of Transnational Civil Procedure are now building the basis for further regional harmonization efforts, such as the joint project between the European Law Institute and Unidroit for a Euro‐ pean Model Code of Civil Procedure.20 (G) Drivers of Harmonization of Civil Procedure In the end, one should treat culture as a set of shared meanings that make certain options more thinkable, such as to enable one to act accordingly. This approach is in line with that of Clifford Geertz, which rejected inter‐ pretations of culture that placed ultimate significance on its capacity to produce particular social practices, and argued that seemingly identical practices may have entirely different meanings, such that the value of cul‐ tural interpretation is to sift through those meanings rather than simply to assert that culture causes the practices themselves.21

18 R. Stürner, supra n. 16, at 201. 19 Cf. R. Caponi, “Transnational Litigation and Elements of Fair Trial”, in P. Gottwald and B. Hess (eds), Procedural Justice (proceedings of the XIV IAPL World Congress, Heidelberg, 2011), Gieseking, 2014, at 493. 20 Cf. 19 Uniform Law Review (2014), Issue n. 2, hosting a number of papers that were presented at the first exploratory workshop on the joint project, held in Vien‐ na in October 2013. 21 C. Geertz, The Interpretation of Cultures. Selected Essays, Basic Books, 1973, at 6 and 12.

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Harmonizing Civil Procedure: Initial Remarks

On the basis of this remark, one can understand the general framework of this conference − “From common rules to best practices in European Civil Procedure” − as a subject descriptor that clearly rejects univocal re‐ lationships of cause and effect between rules and practices, while stating that the seminar “will focus on how to move beyond common rules and towards best practices that give body to mutual trust and judicial coopera‐ tion, which can in turn feed the further development of the European civil procedure framework from the bottom up”. As to the topics chosen for the four panels (the acquis on civil proce‐ dure; the role of party autonomy in shaping dispute resolution methods; the increasing use of digital technologies; and the spreading of best practices in civil procedure), all of them point to some major drivers of harmonization of civil justice in Europe. First of all, of course, one should mention the initiatives of the Euro‐ pean Union over the last two decades.22 A second factor of harmonization arises from a key element of a com‐ mon political culture, which places the rights of the individual at the cen‐ tre of economic, social, and legal activity. Party autonomy and party dis‐ position are a consequence of the central position of the individual in the economic and legal systems of European countries. These principles also shape dispute resolution methods and their features, beginning with the choice between adjudication and out-of-court dispute resolution. A third factor of procedural harmonization can be seen in the spread of digital technologies, which are setting common or similar technical stan‐ dards of communication across Europe and the rest of the world. Civil procedure in particular is apt to enhance the role of digital technologies, which are having a significant impact on diverse legal systems. On the one hand, civil procedure can be understood as a form of standardized ex‐ change of information between parties to proceedings and the court. On the other hand, digital technologies find their most important use in pro‐

22 Cf. B. Hess, “Harmonized Rules and Minimum Standards in the European Law of Civil Procedure” (2016), research paper prepared at the request of the European Parliament's Committee on Legal Affairs, in http://www.europarl.europa.eu/ committees/en/juri/home.html (last accessed 24 July 2016); X.E. Kramer, Proce‐ dure Matters: Construction and Deconstructivism in European Civil Procedure (1 October 2013), Erasmus Law Lectures 33 (Inaugural Lecture), Eleven Internation‐ al Publishing, 2013, Available at SSRN: http://ssrn.com/abstract=2372713.

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ducing and exchanging information in a more efficient manner. In a sense, civil procedure and digital technologies are complementary. Last but not least, harmonization in the field of civil procedure can be produced by the spread of a best practices approach among legal profes‐ sionals. A prominent role in gathering and systematizing best practices of civil procedure in Europe, especially with regard to the time management of judicial proceedings, is played by the CEPEJ.23 (H) The “Quiet [?] Power of Indicators” Among the aforementioned four drivers of harmonization, one can distin‐ guish between those operating more on the normative level (EU lawmak‐ ing and freedom of contract) and those operating more on the factual side (the spread of digital technologies and best practices). This should come as no surprise. As we have already seen, legal harmonization requires the interplay of normative and factual elements, unless one wants to consider just the “law in the books” and not “the law in action”, according to the distinction made by Roscoe Pound. It is worth adding a further factual driver of harmonization of civil pro‐ cedure: the “quiet power of indicators”,24 such as flow of proceedings, clearance rates, disposition time, number of judges, number of lawyers, litigation rate, and so on. In the second part of my paper, I will focus on this use of indicators, as they might overcome the fragmentation of the le‐ gal framework concerning the harmonization of civil procedure in Euro‐ pe,25 by way of supervising the national judicial systems and comparing their performances, with the aim of harmonizing them de facto according to a functional perspective.26

23 Cf. CEPEJ, High Quality Justice for All Member States of the Council of Europe (2015), in https://www.coe.int/t/dghl/cooperation/cepej/textes/ CEPEJ_Study22_EN.pdf (last accessed 25 July 2015). 24 S. E. Merry, K.E. Davis and B. Kingsbury, The Quiet Power of Indicators. Mea‐ suring Governance, Corruption, and the Rule of Law, CUP, 2015. 25 Cf. Art. 81 and 114 TFEU, and Art. 118 TFEU, on the protection of patents, as well as Art. 102 TFEU, on the enforcement of cartel law. See B. Hess, Europäis‐ ches Zivilprozessrecht, C.F. Müller, 2010, at 2 and 43. 26 As to the Italian Judicial System, cf. R. Caponi, ”‘Doing Business‘ as a Purpose of Civil Justice? The Impact of World Bank Doing Business Indicators on the Re‐ forms of Civil Justice Systems: Italy as a Case Study“, in C. Althammer, H. Roth

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Harmonizing Civil Procedure: Initial Remarks

Using indicators (in general and, in particular, in a comparative per‐ spective) is a somewhat risky business, as the researcher (especially the scholar in civil procedure working, as it were, alone) often has no control over the criteria of gathering, selecting, comparing, and presenting data as well as over the whole process of gathering, and so on. However, he has to somehow “step in”, as the use of indicators for evaluating and comparing the performance of national judicial systems in a cross-country perspective has been spreading at a remarkable rate since the beginning of the 21st century, attracting the attention of policy makers and government officials, and thus gaining a powerful impact as a tool of global and European gov‐ ernance. First of all, a few general remarks on the use of indicators are needed. There is no generally shared meaning of the term “indicator”, but for the sake of this paper the following definition may suffice: “An indicator is a named collection of rank-ordered data that purports to rep‐ resent the past or projected performance of different units. The data are gener‐ ated through a process that simplifies raw data about a complex social phe‐ nomenon. The data, in this simplified and processed form, are capable of be‐ ing used to compare particular units of analysis (such as countries, institu‐ tions, or corporations), synchronically or over time, and to evaluate their per‐ formance by reference to one or more standards”.27

Focusing only on the use of indicators in cross-country comparative sur‐ veys of judicial systems, one can enumerate a number of institutions that create or propagate indicators. Most influential are the data regarding the performance of judicial systems that are produced – within wider compar‐ isons including rankings on the attractiveness of different legal systems for doing business – by the Doing Business Project (World Bank Group).28 This project found influence not only in developing countries but also in Europe. In light of the ongoing success of the Doing Business annual

(eds.), Die Instrumentalisierung von Zivilprozessen, Tübingen, Mohr-Siebeck, 2017, forthcoming. 27 Cf. K.E. Davis, B. Kingsbury and S.E. Merry, “Indicators as a Technology of Global Governance”, in 46 Law and Society Review (2012), 71, at 73. 28 Cf. www.doingbusiness.com (last accessed 24 July 2016). Furthermore, in 2013 a cross-country inquiry into the performance of judicial systems with a wealth of measurements and quantitative data was carried out under the auspices of the Or‐ ganization for Economic Cooperation and Development (OECD). G. Palumbo et al. “Judicial Performance and its Determinants: a Cross-Country Perspective”, http://www.oecd.org (last accessed 24 July 2016).

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reports, it is easy to explain why a very detailed evaluation report on Euro‐ pean judicial systems, published every second year since 2006 by the European Commission for the Efficiency of Justice (CEPEJ),29 and aimed at measuring and comparing efficiency and effectiveness of European countries’ judicial systems, has been used as a database to create a simpli‐ fied and more appealing informational tool, the EU Justice Scoreboard. Published since 2013 by the EU Commission, the Scoreboard aims to shed light on the quality, independence, and efficiency of justice systems as codeterminants of economic growth in the Member States of the European Union. As Burkhard Hess puts it: “Although this Scoreboard does not provide for substantial new information […], the political ambition goes further: the Commission understands its mis‐ sion in a comprehensive way covering all areas of dispute resolution, includ‐ ing the efficiency and the independence of the national court systems. In the present financial crisis, the Commission considers the efficiency of national judicial systems as a priority for the proper functioning of the economy in the internal market. Thus, the supervision of the judicial systems of Member States is part of the general policy of the Commission. In the context of the troika process, the Commission ensures the implementation of far-reaching reforms of the national procedural laws and Court systems of Member States”.30

The massive use of indicators to evaluate and compare judicial systems may at first be difficult to understand. It is indeed worth asking to what extent the diversity of arrangements and institutions through which justice is variously administered around the world can be grasped and somehow equalized by a kind of one-size-fits-all toolbox of indicators. Answering this question would require a close look at the social processes surround‐ ing the creation and use of indicators in the field of civil procedure. At this stage, it suffices to say that indicators are powerful and influen‐ tial, especially in those countries that need to improve the performance of their judicial system in comparison with other competing countries in Eu‐ rope and the rest of the world. In this regard, Italy represents a remarkable case study, which would be worth investigating in-depth. By analysing the

29 The fifth report was published in 2014. On the CEPEJ Evaluations, cf. A. Uzelac, “Efficiency of European Justice Systems: The Strength and Weaknesses of the CEPEJ Evaluations”, 1 IJPL (2011), 106. 30 B. Hess, “The State of the Civil Justice Union”, in B. Hess, M. Bergström and E. Storskrubb (eds), EU Civil Justice. Current Issues and Future Outlook, Blooms‐ bury Publishing, 2016, at 10.

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causes of inefficiency within the Italian civil justice system,31 one could show that the complexity and distinctive features of each national judicial system cannot be captured by the use of quantitative indicators, like those used by World Bank questionnaires. Notwithstanding these methodologi‐ cal difficulties, dealing with the use of indicators can be fascinating and rewarding for the lawyer, particularly the scholar in civil procedure, as it helps to dispel the sense that civil procedure is distinct from the other fields of the law, to say nothing of the sense of remoteness of civil proce‐ dure from society. To cut an initially long story short, indicators are tremendously success‐ ful in attracting the attention of policy-makers and government officials, thus prompting benchmarking, dialogue, and reform.32 Indicators can be beneficial for fostering comparative knowledge of legal systems and pro‐ moting reforms. The information gathered through the creation and use of indicators needs, however, to be integrated and corrected, both on the de‐ scriptive and the prescriptive level, far more than it currently happens, by way of knowledgeable lawyers and social scientists living and working in the targeted countries.33 (I) The ELI/UNIDROIT Joint Project on European Rules of Civil Procedure In the last part of my paper I will address more specifically the key question, which is “Do we need harmonization to achieve harmonious co‐ operation?” Before addressing it in more theoretical terms, it is worth tak‐ ing stock of the most recent initiative in this field.

31 Cf. R. Caponi, “European Minimum Standards for Courts. Independence, Special‐ ization, Efficiency. A Glance from Italy”, in C. Althammer and M. Weller (eds), Europäische Mindeststandards für Spruchkörper, Mohr-Siebeck, 2016, forthcom‐ ing. 32 K. Davis, B. Kingsbury and S.E. Merry, supra n. 27, at 71 and 92. 33 This approach also reflects a certain methodological approach, which is best ex‐ pressed by Clifford Geertz: “Like sailing, gardening, politics and poetry, law and ethnography are crafts of place: they work by the light of local knowledge”. Cf. C. Geertz, “Local Knowledge: Fact and Law in Comparative Perspective”, in C. Geertz (ed), Local Knowledge: Further Essays in Interpretative Anthropology, Ba‐ sic Books, 1983, at 167.

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In October 2013, the European Law Institute (ELI) and the Internation‐ al Institute for the Unification of Private Law (UNIDROIT) held an ex‐ ploratory workshop on the possibility of drafting “European Rules of Civil Procedure”. The leading idea was to establish whether the ALI/ UNIDROIT “Principles of Transnational Civil Procedure” could be adapt‐ ed to the European context. In May 2014, the ELI/UNIDROIT joint project was launched, while building three working groups on access to information and evidence, provisional and protective measures, service, and due notice of proceedings. In a further step, another five working groups have been inititated or are in the process of initiation: on res judi‐ cata and lis pendens; obligations of the parties, lawyers and judges; judge‐ ments; costs; and the structure of proceedings. In addition to the ALI/ UNIDROIT Principles, other sources of inspiration include national codes of civil procedure, CJEU, and ECtHR case law as well as the acquis in the field of civil procedure. The ELI/UNIDROIT joint project has already at‐ tracted the attention of EU institutions. Working group meetings were at‐ tended by observers from various institutions, including the EP’s Legal Affairs Committee, the CJEU, and the Commission, and in April 2015 the project was presented at a hearing of the EP Legal Affairs Committee.34 The underlying idea is to work out building blocks of a European model code of civil procedure, which could be a guideline for both the European legislation and for Member State legislation towards further harmoniza‐ tion.35 The increasing pressure arising from the EU Justice Scoreboard to‐ wards at least functional harmonization of the domestic civil procedures of the Member States suggests that the project should develop sets of rules irrespective of the domestic or cross-border character of disputes (provid‐ ing for specific rules for the latter, where appropriate). As Rolf Stürner states:

34 Cf. European Parliamentary Research Service (Author: R. Manko), Europeanisa‐ tion of Civil Procedure, Towards Common Minimum Standards? (2015), http:// www.europarl.europa.eu/thinktank/en/document.html?refer‐ ence=EPRS_IDA(2015)559499, at 25 (last accessed 25 July 2016). 35 Cf. R. Stürner, “Principles of European Civil Procedure or a European Model Code?” 19 Uniform Law Review (2014), 322-328; see also X.E. Kramer, “The Structure of Civil Proceedings and Why It Matters: Exploratory Observations on Future ELI-UNIDROIT European Rules of Civil Procedure”, ibidem, 218-238, available at SSRN: http://ssrn.com/abstract=2480052.

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“First of all, domestic and foreign cases are only in part governed by differing rules. The structure of the proceedings, the problems of court management and the large majority of conflicts of interest between parties to litigation de‐ mand mostly the same or at least only slightly modified solutions for domes‐ tic and foreign cases. It is, therefore, enough to provide special rules for trans‐ border cases or foreign parties if the individual circumstances of the situation or the conflict are the specific result of the case’s relation to a foreign legal system”.36

A model code should contain provisions on all topics that are regularly ad‐ dressed in traditional national codes. Topics that have been chosen already as matters for the working groups constitute a good examinaton of the most important subjects. The development of common European rules should combine elements of common principles and existing European procedural law and, in addition, the results of comparative considerations reflecting the variety of the Member States’ procedural systems.37 It is too early to assess whether the final outcome of the joint project will succeed as a model law for the reform of the national systems. To be sure, this outcome will have to be placed in the wider context of the rela‐ tionship between adjudication and out-of-court settlement, as the topics chosen for the working groups chiefly address internal aspects of civil pro‐ ceedings. (J) Goals of Civil Justice The relationship between adjudication and out-of-court settlement proves to be of critical importance, as it is linked to the purposes of the civil jus‐ tice system, which has been a classic topic in civil procedure scholarship. In a recent survey on the goals of civil justice in contemporary judicial systems, the distinction between conflict-resolution and policy-implemen‐ tation goals as elaborated by Mirjan Damaška in his seminal book on the faces of justice and state authority38 has become important once again.39 It has been argued that

36 37 38 39

Cf. R. Stürner, supra n. 35, 322-328. Cf. R. Stürner, supra n. 35, 322-328. M. Damaška, supra n. 7. A. Uzelac, Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems, Springer, 2014, at 6.

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“[...] all the authors of the papers collected in the survey present the goals as a contrast between two main approaches: whereby any given system of civil justice may be defined by the balance (or imbalance) reached between them. The two main goals of civil justice may be in the broadest sense defined as: resolution of individual disputes by the system of state courts; and implemen‐ tation of social goals, functions and policies”.40

The weak sides of this distinction are well known.41 Nevertheless, the presence of dichotomies within the field of civil procedure is deeply root‐ ed in the history of this branch of the law. Probably more than other fields of law, civil procedure has suffered from the fixing of boundaries among branches of law, in particular from the great divide between private and public law, which is historically peculiar to the natural-law doctrine (17th and 18th century). According to the natural-law doctrine, the raison d'être of civil proce‐ dure was to overcome the status naturalis in the status civilis, as a tool re‐ placing self-help.42 The regulation of civil proceedings became a funda‐ mental part of public law,43 identifying a pillar of state building in conti‐ nental Europe: the prohibition of self-help and the state civil justice as a trade-off for such a prohibition. On the other side, the basic elements of civil proceedings (from standing to sue to adjudication) were aimed at pro‐ tecting the “new bourgeois individual” and his economic freedom, in a fragmented and individualistic perspective of social relationships. Thus, civil procedure was Janus-faced or acted as an interface: one face looked to public law, as civil proceedings are mainly set up by the state; the other looked to private law, as civil proceedings aim to protect individual rights. The great divide between private and public law caused the theory and practice of judicial protection of rights to be affected by a sort of magnetic field, and to oscillate between these two opposite conceptual poles. The tension between the private interest of litigants and the public inter‐ est of the State as a provider of dispute resolution services is an “eternal” feature of civil procedure. However, the extent to which the State (or the polity) is involved in the business of dispute resolution may vary consider‐

40 A. Uzelac, supra n. 39. 41 J. Zekoll, “Comparative Civil Procedure”, in R. Zimmermann and M. Reimann, supra n. 6, at 1333. 42 Cf. K. W. Nörr, Naturrecht und Zivilprozess, Mohr, 1976, at 3 and 48. 43 Cf. Boehmer, Introductio in ius publicum universale, ex genuinis iuris naturae principiis deductum et in usum iuris publici particularis quarum cunque rerum publicarum adornatum, Halae Magdeburgicae, 1710, at 499.

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ably across time. It can range from a minimum − in which the only rele‐ vant public interest is to keep the conflict-resolution services running at the minimum cost, chiefly providing incentives for the litigants to settle their dispute through an alternative dispute resolution procedure − to a maximum, in which the resolution of the dispute is the occasion for the State (or the polity) to apply the substantive law, implementing where ap‐ propriate social goals and policies going beyond the mere resolution of the dispute. This holds even truer in the European Union, as the regulation of dis‐ putes with cross-border implications by the European law of civil proce‐ dure is a remarkable example of the presence of public policy concerns, in terms of the sound operation of the internal market and the development of an area of freedom, security, and justice. Therefore, taking into account the current developments in western le‐ gal systems, the key opposition with regard to the goals of civil justice systems appears to be between “pure and simple” (interest-based) settle‐ ment of disputes and application of the law on the occasion of the (settle‐ ment of the) dispute. In this context, the only shared principle (besides in‐ dependence and impartiality of the court, and the right to be heard) might be the above-mentioned key element of a common political culture, which places the rights of the individual at the centre of economic, social, and legal activity. This places the individual at the centre of the economic and legal system following the principles of party autonomy and party disposi‐ tion that shape dispute resolution methods and their features. Accordingly, it is for the parties and not the government to choose suitable dispute reso‐ lution methods, and to decide upon their commencement, scope, and ter‐ mination. From this point onwards, one is confronted with two competing ac‐ counts regarding the role of civil justice. First, there is the old − or rather, classic − account, according to which the European States, as polities embodying the rule of law, are committed to the principle that relationships among its citizens must be governed by the law and not by the survival of the fittest. Dispute resolution methods should also be governed by a system of public and private law fairly ap‐ plied and evenly enforced. Since the government is involved as provider of dispute resolution services, the State justice system has the duty to im‐ plement public policies that go beyond the “pure and simple” resolution of the dispute. The first policy is to enable the parties to choose dispute reso‐ lution mechanisms in a way that is truly free and informed, removing the 59

Remo Caponi

various barriers to access to justice. Second, to apply the law on the occa‐ sion of a dispute is the primary purpose of the civil justice system. The resolution of the dispute is not only about protecting individual rights, nor is it simply about restoring peace between the parties to a dispute. The de‐ termination and enforcement of rights leads to the ongoing development and improvement of the law itself. The law is preserved in judgements, and only judgements can develop the law. Thus, to evoke Cappelletti’s words: “Procedural law is not just about techniques – methods to regulate the busi‐ ness of courts. Procedural law, in the first place, details the role of govern‐ ment, through public courts, in settling disputes, creating new substantive rules and policies, and implementing policies through law. Important public policies are at stake in decisions about when to encourage parties to litigate, how to shape their factual and legal claims, and whether to promote a strictly legal resolution as opposed to a negotiated settlement. How much law regu‐ lates social behaviour depends in large part on how the machinery of justice is constructed”.44

By contrast, a new account of dispute resolution emerged first of all in the great debates on ADR in the mid-1980 s in the United States and in the mid-1990 s in Europe, as well as the subsequent implementation of ADR programmes in both areas, which was an essential turn in the landscape of dispute resolution in western countries. Until then, settling a dispute through an out-of-court agreement or litigating the case before courts and seeking adjudication was an individual choice of the parties. Following the large-scale development of ADR schemes, the alternative between settle‐ ment and adjudication became an institutional choice. Litigation before the state court tends to be considered a last resort. There is a kind of gen‐ eral preference for alternative dispute resolution over resorting to judicial proceedings before state courts and applying the law. By way of example, according to the consumer ADR Directive, even in the event that the ADR entity “imposes” a particular outcome on the consumer, this solution needs not comply with the law writ large but only with that part of consumer protection law from which the parties cannot derogate to the detriment of

44 M. Cappelletti and B. Garth, “Introduction. Policies, Trends and Ideas in Civil Procedure”, in M. Cappelletti (ed), Vol. XVI Civil Procedure, in R. David et al. (eds), International Encyclopedia of Comparative Law, Mohr Siebeck/Martinus Nijhoff Publishers, 1987, at 1.

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consumers (Art. 11).45 Further arguments to support ADR procedures point to those kinds of disputes that are more suitable for settlement through mediation and other alternative dispute resolution approaches. This new narrative may at best be illustrated by a quotation from one of the most recent contributions by Richard Fentiman on the “Harmonization of Civil Jurisdiction”: “The fact that commercial litigation is a commercial matter, with the decision to claim or defend being an investment decision, means that the object is not a legal but a commercial victory. This has several consequences. It fosters the belief that settlement not e is the object of proceedings. […]. Above all, it cre‐ ates an expectation that the law, and especially judicial decisions, will reflect commercial considerations. It is apparent, however, that the central case as‐ sumed by the EU regime is very different […]. […] A fundamental divide separates those for whom the objective of the EU regime is to achieve optimal rules of international civil procedure, and those for whom the regime is but one element in the broader project of European integration”.46

In the light of the two competing accounts, the main problem concerns not whether a certain degree of harmonization is desirable – indeed it is – but to what extent and by what kind of tools should harmonization be achieved. The real problem is in determining the goals of the harmonization of civil procedure. “Striving for a coherent architecture in the civil justice union”47 first entails clarity with regard to the aims of civil justice. If one is able to achieve a shared conviction as to the purposes of the civil justice system and find, perhaps, that different kinds of civil proceedings prove to be more or less equally efficient in pursuing the goals of civil justice, one can even consider being more flexible in pursuing the aim of harmonizing civil procedure across Europe. By way of example, the difference between the mediation directive48 and the consumer ADR directive49 is less a difference of scope (only cross-border disputes or also domestic ones) than one in their leading con‐ ceptions, as the former strives for a “balanced relationship” between ADR

45 G. Wagner, “Private Law Enforcement through ADR. Wonder Drug or Snake Oil?”, 51 CMLR (2014), 165, at 177. 46 R. Fentiman, “The Harmonization of Civil Jurisdiction”, in D. Chalmers and A. Arnull (eds), The Oxford Handbook of European Union Law, OUP, 2015, at 895. 47 B. Hess, supra n. 30, at 18. 48 Directive 2008/52/EC, OJ 2008, L 136. 49 Directive 2013/11/EU, OJ 2013, L 165.

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and judicial proceedings, while the latter desires a system of dispute reso‐ lution with its own institutional structure independent of the courts. (K) Concluding Remarks In the end, the lack of a coherent and systematic approach in the field of the European law of civil procedure might depend less on the different regulatory options and different legislative techniques chosen than on con‐ trasting perspectives as to the purposes of the national and European civil justice systems. The uncertainties with regard to regulatory techniques reflect not only the fragmented legal framework depicted by the Treaty but also different views concerning the purposes to be achieved by civil justice systems. Should the civil justice system be fundamentally a tool for implement‐ ing the rule of law in society (in the occasion of disputes among individu‐ als) or should it be mainly a tool for an easy and cost-effective dispute res‐ olution? This is the real alternative50.

50 For further remarks about the role and purposes of procedural law in the context of globalisation, cf. R. Caponi, “Procedural Law and Global Governance. Exploring and Mapping a New Research Field”, in L. Cadiet, B. Hess, M. Requejo (eds.), Approaches to Procedural Law. The Pluralism of Methods, Nomos, 2017, forth‐ coming.

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Approximation of Civil Procedural Law in the European Union C.H. van Rhee Professor at Maastricht University

(A) Introduction In what manner can harmonization or at least a certain alignment (referred to as ‘approximation’ hereafter) of civil procedural law in the European Union best be achieved? And is such harmonization or approximation nec‐ essary? These are the two questions that will be addressed in the present contribution which is meant to reflect also on some of the points made by Remo Caponi in his contribution to this volume. The questions are obvi‐ ously not new, but their relevance has remained ever since they were posed in the early 1990 s within the framework of European cooperation by a working group chaired by Professor Marcel Storme from Ghent.1 Currently, these questions are central in an initiative from the European Law Institute and UNIDROIT aimed at framing European Rules of Civil Procedure (see below).2 This initiative takes the Principles of Transnation‐ al Civil Procedure of the American Law Institute and UNIDROIT as its starting point3 and is expected to yield its first results in 2017/2018. These questions are also posed elsewhere, for example in two recent documents that were produced at the initiative of the European Parliament, both dis‐ cussing the feasibility of approximation by way of common minimum standards of civil procedure.4

1 M. Storme (ed), Approximation of Judiciary Law in the European Union/ Rapprochement du Droit Judiciaire de l’Union européenne, Kluwer, 1994. 2 See http://www.europeanlawinstitute.eu/projects/current-projects-contd/article/ from-transnational-principles-to-european-rules-of-civil-procedure/?tx_ttnews%5B‐ backPid%5D=179508&cHash=f55b9b03751e4ae4f928b654d7329d96 (last consult‐ ed in September 2016). 3 ALI/UNIDROIT, Principles of Transnational Civil Procedure, CUP, 2006. 4 R. Mańko, Europeanisation of Civil Procedure. Towards Common Minimum Stan‐ dards? In-Depth Analysis, EPRS, June 2015 (available at http:// www.europarl.europa.eu/RegData/etudes/IDAN/2015/559499/ EPRS_IDA(2015)559499_EN.pdf, last consulted in September 2016), and M.

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(B) Is Harmonization Necessary? Amongst other reasons, harmonization or at least approximation of civil procedural law in the European Union is traditionally considered to be necessary in view of the fact that the EU does not have (and most likely does not want to have) a system of supra-national EU courts that hear cas‐ es concerning EU law on the merits and on an individual basis. If hearing such cases continues to be the task of the national courts within the EU, steps need to be taken in order to guarantee that the citizens of the EU can litigate before courts that provide justice in a manner that is comparable from the perspective of speed, efficiency, proportionality and costs, on the one hand, and fairness and quality, on the other. This is needed in order to guarantee that EU substantive law is applied in a similar manner in all of the Member States where its enforcement through the courts is at issue.5 Obviously, the same is true within the wider context of the creation of ‘an area of freedom, security and justice’ within the EU (on the political agen‐ da since the late 1990 s), in which judgments can move freely across the borders of the Member States. All this cannot be achieved by an approxi‐ mation of procedural rules alone, but approximation of the rules, especial‐ ly when carefully executed, may certainly help. Procedural differences may not have to be eliminated altogether, but the existing differences are, amongst other things, a threat to the functioning of the European internal market since, as stated, such differences may put into jeopardy the uni‐ form application of European substantive law throughout the European Union. Differences in the manner in which European substantive law is enforced through the courts may result in a ‘compartmentalization’ of the Tulibacka, M. Sanz and R. Blomeyer, Common Minimum Standards of Civil Proce‐ dure. European Added Value Assessment, Annex I, April 2016 (available at https:// polcms.secure.europarl.europa.eu/cmsdata/upload/c4f718ce-2e7a-445eb211-65c8f427791b/EPRS_CIVIL_PROCEDURE.pdf, last consulted in September 2016). 5 That harmonization of substantive law (the following quotation talks about ‘unifica‐ tion’, but this is of no significance) may be endangered by differences in procedural law was already noticed by the late Cambridge Professor Gutteridge in 1946 (see the quotation in Storme, supra n. 1, at xiii: ‘[It is] obvious that no scheme of unifi‐ cation can be regarded as satisfactory if proceedings in one of the participating countries are more dilatory or more expensive than in others, or if the remedies af‐ forded by the unified law are not the same … if unification is to possess any real value it is essential that the unified rules should be applied in practice without any impediments created by procedural difficulties.’).

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market along the lines of the various Member States, undermining the whole idea of an internal market. And, within the wider context of the cre‐ ation of an area of freedom, security and justice within the EU, such dif‐ ferences may also result in a lack of the necessary mutual trust in the judi‐ ciaries of the other Member States, and this may hinder the free movement of judgments across the borders of the Member States. (C) How should Approximation be Achieved? This being said in the abstract, one should of course ask how an alignment of civil procedural law can be achieved in practice. Obviously, what is needed first of all is a horizontal approach to matters, in which procedural rules are drafted which apply generally and independently of the particular subject matter in a certain area of law (in our case private law) that is at stake. Therefore, Article 114 TFEU can most likely not be the basis of the approximation that is needed, since this article allows for a sectorial, verti‐ cal approach to matters where procedural rules are concerned, i.e. an ap‐ proach where rules of procedure are provided that accompany a specific subject matter of substantive EU law aimed at establishing or ensuring the functioning of the internal market.6 A horizontal approach to rules of civil procedure is currently only possible on the basis of Article 81 TFEU.7 On the basis of this article, various directives and regulations have been draft‐ ed which apply in a general, horizontal manner (some of them are option‐ al) but at the same time only address specific areas or elements of civil procedure (e.g. jurisdiction, service of documents, small claims litigation). This is maybe the most feasible option within the context of the existing EU legal and political order for procedural harmonization, but it obviously leads to fragmentation and incoherence (only certain areas or aspects of the relevant civil procedural law are harmonized); also given the fact that on the basis of Article 81 TFEU the EU lawmaking authorities can merely concentrate on matters having cross-border implications (and the latter phrase is rather narrowly interpreted in the various legal documents). This results, for example, in a situation in which national small claims litigation is potentially handled differently when compared to cross-border cases 6 Cf. Mańko, supra n. 4, at 9-16, and Tulibacka, Sanz and Blomeyer, supra n. 4, at 57-61. 7 Former Article 65 of the Treaty Establishing the European Community.

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since these national cases do not fall within the ambit of the European Small Claims Regulation.8 After all, the Small Claims Regulation may on‐ ly be applied in cases in which at least one of the parties is domiciled or habitually resident in a Member State other than the Member State of the court or tribunal seized (i.e. the narrow definition of a cross-border case in the relevant Regulation).9 Cases that do not qualify as such have to be liti‐ gated according to national procedural rules. This is not desirable, first of all since even purely national cases without cross-border implications in the narrow sense may influence the functioning of the internal market to a considerable extent. After all, companies might be tempted to take into consideration the features of the various national civil justice systems (i.e. how purely national cases are being litigated in these justice systems) in making decisions on their place of establishment or production or even on where to market their products within the European Union. That indeed features of national civil justice systems play a role in such decisions ap‐ pears for example from research by Vogenauer and Hodges.10 Further‐ more, cases which do not qualify as cross-border cases in the narrow sense of the existing EU regulations may nevertheless also have their effects on the area of freedom, security and justice mentioned above which presup‐ poses the mutual trust needed for the free movement of judgments. To quote from a study by Tulibacka and others, who advocate a less narrow interpretation of the phrase ‘matters having cross-border implications’ in Article 81 TFEU, ‘It is important for the general level of mutual trust be‐ tween judicial authorities, and effective enforcement of decisions, for do‐ mestic procedures to be following procedural principles and standard[s] as robust in ensuring fairness as the principles and standards applicable to cross-border cases.’11 However, the current opinion is that the EU is not competent to legislate in ‘purely national matters’ in the civil justice area and hence the narrow interpretation of ‘cross-border implications’. Given the possible implications of purely national cases for the functioning of the internal market and the area of freedom, security and justice, this should

8 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European small claims procedure, OJ 2007, L 199. 9 Art. 3. 10 S. Vogenauer and C. Hodges (eds), Civil Justice Systems in Europe. Implications for Choice of Forum and Choice of Contract Law, Hart Publishing, 2011. 11 Tulibacka, Sanz and Blomeyer, supra n. 4, at 68.

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be reconsidered (although politically this issue might be difficult to ad‐ dress, to say the least). (D) Best Practices? In the title of the workshop in which this paper was presented, it was stat‐ ed that one should move from common rules to best practices in order to address the problems I have just mentioned. According to one source, a ‘best practice’ can be defined as: A method or technique that has consistently shown results superior to those achieved with other means, and that is used as a benchmark.12 This approach is to be welcomed, also because approximation of civil procedure in itself does not contain guarantees for the quality of the output of the civil procedural systems resulting from it. One of the aims of ap‐ proximation should be the improvement of existing systems of civil proce‐ dure and setting benchmarks should be greeted as beneficial in attaining that aim. In an effort to harmonize or at least approximate civil procedure in the European Union these benchmarks should if possible not be seen as common minimum standards, but they should be set higher in order to in‐ troduce genuine best practices (and not ‘minimum’ best practices) on an EU-wide scale. The rather timid approach of, for example, the Storme re‐ port (see above) that provided rules that were acceptable in the then twelve Member States of the European Union and not aimed at major im‐ provements of the existing civil justice systems should be avoided in cur‐ rent and new initiatives if one is aiming for more than the ‘status quo’ in the area of civil procedure. Approximation of civil procedure through the use of best practices is, however, easier said than done. First of all, differences may exist across Europe in the understanding of what ‘best’ practices are (obviously, ‘best’ in itself is a subjective concept), and especially what they are in the field of civil procedure. At an abstract level, one may agree on what best practices in civil litigation are. Best practices in civil litigation are, for ex‐ ample, procedural practices that result in speed, efficiency, proportionality

12 See http://www.businessdictionary.com/definition/best-practice.html (last consult‐ ed in September 2016). See also C.E. Bogan and M.J. English, Bench marking for Best Practices: Winning Through Innovative Adaptation, McGraw-Hill, 1994.

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and moderate costs while safeguarding fairness and quality.13 However, the problem starts when one tries to identify and describe the relevant best practices more specifically. This may be due to a number of reasons, a ma‐ jor one being different understandings of relevant concepts such as speed, efficiency, proportionality, moderate costs, fairness and quality in civil liti‐ gation across Europe as well as their relative weight in civil litigation. For‐ tunately, in this respect the various recommendations of the Council of Europe,14 the work of the European Commission for the Efficiency of Jus‐ tice established by the Council of Europe (CEPEJ),15 and the case law of the European Court of Human Rights and the Court of Justice of the Euro‐ pean Union (to name just a few) may be of considerable use. To give one example: the concept of reasonable time (speed) and its relationship with other key aspects of civil litigation has been clarified to a large extent by the case law of the European Court of Human Rights and this case law has been of primary importance in shaping ideas on the matter across Europe. However, if best practices in civil litigation can be identified on the ba‐ sis of the above and other sources, one is confronted with another prob‐ lem: How should the best practices that have been identified be introduced in national court practice? In many jurisdictions, the civil procedure rules leave the judge limited discretion in the way a civil lawsuit develops, and only where the rules give the judge discretion may he or she opt for a best practice. So judges themselves can only take action to a certain degree.16 In the majority of cases, the national lawmaker will have to take action,

13 Cf. Principles of Transnational Civil Procedure, e.g. Principle 14. 14 A list of relevant recommendations can be found at http://www.coe.int/t/dghl/ cooperation/cepej/textes/ListeRecRes_en.asp (last consulted in September 2016). 15 See http://www.coe.int/t/dghl/cooperation/cepej/default_en.asp (last consulted in September 2016). 16 Although the possibilities to take action within the context of existing procedural frameworks may not always be so limited. Some years ago, a Dutch commission for the reform of civil procedure came to the conclusion that the Dutch civil proce‐ dure rules only needed very minor changes in order to introduce a new procedural model with a strong judge, judicial case management and cooperation between the parties (the identified best practices). An important measure the commission pre‐ scribed was a change of attitude of those involved in litigation. Unfortunately, atti‐ tudes are hard to change, especially if this has to be done EU-wide and within the context of different procedural traditions. See W.D.H. Asser, H.A. Groen and J.B.M. Vranken (with the cooperation of I.N. Tzankova), Uitgebalanceerd. Ein‐ drapport Fundamentele Herbezinning Nederlands Burgerlijk Procesrecht, BJu, 2006.

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and coordinated action of national lawmakers across Europe will prove to be difficult. Such action may be dependent on the willingness to initiate national law reform projects in which European best practices are taken as a starting point. But even in an ideal world, where such coordinated action could be taken, additional problems would be encountered. The instrument of choice for the lawmaker when introducing best practices in civil litiga‐ tion is the introduction or amendment of civil procedure rules and such rules are problematic in themselves: there is a danger that similar rules do not result in the alignment of the court practices that one wishes to realize. An interesting workshop on the role of the supreme courts in a selection of jurisdictions, which took place in Maastricht in February 2016,17 provides a good example, both of the fact that ideas on best practices in litigation may differ across borders, and of the fact that similar rules do not result in similar outcomes in civil litigation. It was stated in Maastricht that the role supreme courts play in national civil justice systems determines to a large extent finality in civil litigation. And this role is closely connected to ideas of fairness and quality. It was shown that even when we compare supreme courts that have similar his‐ torical roots, such as the French, Dutch and Italian supreme cassation courts, there are vast differences even though quality and fairness are shared benchmarks. It seems that in France and Italy the idea is that in or‐ der to guarantee quality and fairness there should be more or less unlimit‐ ed access to the supreme cassation court (apparently considered a best practice in these jurisdictions),18 whereas in the Netherlands it is thought that quality and fairness can be promoted only if the number of civil cassa‐ tion appeals is limited, which means in actual practice that the Dutch court can better concentrate on its ‘lawmaking function’ than the Italian and French courts.19 This results in major differences, for example in the type of judgments that are issued and the time needed to obtain such judg‐ ments. The fact that the three courts have much in common, and that they have comparable procedural rules to handle cassation appeals (at least to a certain extent), does not change this situation. The conclusion may be that best practices are often hard to identify, may be different according to national preferences, and that their promo‐

17 The conference was organized by Pablo Bravo Hurtado within the context of his PhD research on a selection of Supreme Courts. 18 Papers presented by Elisabetta Silvestri (Pavia) and Frédérique Ferrand (Lyon). 19 Paper presented by the author of the present contribution.

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tion by way of traditional civil procedure rules is hard to achieve even if these rules are similar across Europe. The latter is also the result of the fact that the relationship between the law, the rules of law, and reality is weaker than academic lawyers and the lawmaker often tend to believe. Approximated rules governing courts and their procedure helping to im‐ plement best practices may be a very pleasing read for the interested lawyer, but they guarantee little about actual court practice. This is a les‐ son we may learn from legal history. Already the Romans at the time of the Law of the Twelve Tables (450 BC) had discovered that it is not so much the rules that matter, but their interpretation and application. (E) How to Achieve Civil Procedural Alignment in Europe? So how should one proceed in Europe? I think a first step is an interna‐ tional discussion on the fundamentals of the civil process and the resulting best practices within circles of judges, practising lawyers, academics and other stakeholders. Fortunately, this discussion is already taking place at the international level, for example within the context of the International Association of Procedural Law20 or the newly founded Max Planck Insti‐ tute for International, European and Regulatory Procedural Law in Lux‐ emburg.21 Important reports have also been written, of which the ones by Mańko and Tulibacka and others are a good example (see citations in foot‐ note 4). The starting point is of course that speed, efficiency, proportional‐ ity, moderate costs, fairness and quality should be guaranteed at the na‐ tional level, but important questions remain, such as: How does this trans‐ late in the preferred position of the judge in the civil process and the role of the parties and their lawyers? How does this translate in rules governing evidence and interim measures? And how does this translate in rules gov‐ erning the service of documents, to name just a few examples. Currently, a selection of European proceduralists is involved in an effort by the European Law Institute and UNIDROIT to draft European Rules of Civil Procedure which can serve as a model in law reform at the national level in Europe. The approach is to provide a set of clearly phrased rules in English and French (and possibly in other European languages) that 20 For its website, see http://www.iaplaw.org/ (last consulted in September 2016). 21 Its website can be found at http://www.mpi.lu/home/ (last consulted in September 2016).

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should be accompanied by short explanations. The author of the present contribution is, together with his colleague A. Uzelac from Zagreb, chair of the working group that has been entrusted with the task of drafting rules on the obligations of the parties, their lawyers and judges in the civil law‐ suit.22 The rules that have been discussed within the context of the work‐ ing group so far can be grouped under five headings: I. II. III. IV. V.

General Part: Duty of Loyal Cooperation Planning and Management of the Procedure Determination of Facts Determination of Law Duty to Promote Consensual Dispute Resolution

Although the rules are still being developed and need to remain confiden‐ tial until later, it can be stated here that the level of detail of the suggested rules varies from more or less broad statements of principle in the general part to more or less detailed rules prescribing a certain type of conduct of one or more participants in the civil lawsuit in the subsequent parts (par‐ ties, lawyers, judges and sometimes other participants in the civil lawsuit). Many of these rules are phrased in a ‘permissive’ manner, using the verb ‘may’, in order to allow those who want to use the rules the necessary room for choice. Additionally, it is often indicated that the options that are mentioned are real options and that no exhaustive list is provided. This is also true where the rules formulate sanctions for non-compliance: again, the verb ‘may’ is used, and it is indicated that the list of sanctions is not meant to be exhaustive. When developing rules for EU-wide consumption, various issues need to be focused on if one wants to achieve some kind of harmonization. I agree with Remo Caponi in his contribution to the present volume that the rules of procedure need to be skilfully drafted. Obviously these rules should be drafted in order to reflect best practices. However, even the best draftsmen and draftswomen cannot prevent that words can be interpreted in various ways, especially when the interpreters come from different pro‐ cedural traditions, such as a Polish and an English interpreter, to give just one example. In order to avoid some of the obvious problems of interpre‐ tation, the rules need to be preceded by what the English CPR call an 22 Members of the working group are E. Jeuland (Paris), B. Karolczyk (Warsaw), W. Rechberger (Vienna), E. Silvestri (Pavia), J. Sorabji (London), and M. Strandberg (Bergen).

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‘overriding objective’.23 This overriding objective should be the yardstick in the interpretation of the rules at the national level. The overriding objec‐ tive would, in my opinion, be the most important part of the European rules. It should indicate that interpretations of the rules which would, for example, lead to inefficiency or slowness are not allowed, and it should also address the aims one would like to achieve with civil litigation before the state courts. Furthermore, each section of the rules could contain a first part with statements of principle as regards the subject matter of the sec‐ tion, as is the case with the rules that have been formulated so far on the obligations of those participating in the civil lawsuit (Part I mentioned above). These statements may help the user put the more detailed rules that follow in the right perspective. And additionally, each individual rule should be accompanied by an explanatory note (‘practice directions’) which should, first and foremost, aim at avoiding different interpretations and applications of the rules in different jurisdictions.24 In order to draft such notes sufficient comparative civil procedural knowledge should be present in the drafting group, which is something else than saying that the explanations should be ‘comparative law dissertations’. Comparative law knowledge is necessary for indicating possible misunderstandings in the interpretation of the rules and for guaranteeing an interpretation that is

23 The overriding objective of the English CPR can be found in Rule 1.1: (1) These Rules are a new procedural code with the overriding objective of en‐ abling the court to deal with cases justly and at proportionate cost. (2) Dealing with a case justly and at proportionate cost includes, so far as is practi‐ cable – (a) ensuring that the parties are on an equal footing; (b) saving expense; (c) dealing with the case in ways which are proportionate – (i) to the amount of money involved; (ii) to the importance of the case; (iii) to the complexity of the issues; and (iv) to the financial position of each party; (d) ensuring that it is dealt with expeditiously and fairly; (e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases; and (f) enforcing compliance with rules, practice directions and orders. 24 These explanations may be rather basic, e.g. what is the meaning of ‘court’ (an ad‐ ministrative entity (organizational unit) and not an individual court situated at a certain place) or ‘sanctions’ (not only fines or preclusions, but any means that re‐ sult in negative consequences for a participant in the proceedings if he or she does not fulfil his or her obligations).

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more or less uniform. Obviously, the existence of an English and a French original text will also further this objective. Ideally there should be a body that supervises the application of the rules and that is able to answer preliminary questions on interpretation, a role that should be comparable with that of the European Court of Justice. After all, it cannot be denied that the role played by this court in providing authoritative and binding interpretations of European law has been an im‐ portant trigger for a harmonized interpretation of this law by national courts in the EU. The problem in this context is, however, that the Euro‐ pean Rules of Civil Procedure aim (amongst other things) at law reform at the national level (they do not aim at matters having cross-border implica‐ tions only), and according to the present interpretation of ‘cross-border implications’ this is an issue that cannot be regulated at the EU level. (F) Beyond Common Rules and Towards Best Practices; EU Justice Scoreboard Let us now return to the statement that we need to move beyond common rules and towards best practices. In the conference materials it is added that the best practices that are envisaged ‘should give body to mutual trust and judicial cooperation, which can in turn feed the further development of the European civil procedure framework from the bottom up’. Does this go further than drafting rules and accompanying explanations that encom‐ pass best practices? It seems that indeed this is intended. One way to by‐ pass rules and to concentrate on best practices directly would be to allow national civil justice systems to compete with each other in acquiring cas‐ es. This could allow market forces to decide on best practices in the area of civil procedure if indeed the specific features of national civil justice systems would make parties decide where to bring their case in court. This happened to a certain extent in medieval Europe, where the Romanocanonical model competed with the procedure of secular courts, and where the Romano-canonical model won the battle, partly as a result of a prefer‐ ence of litigants for the rational methods of proof it embodied.25 However, whether such competition is possible between national courts on a Euro‐ 25 C.H. van Rhee, “Harmonisation of Civil Procedure: An Historical and Compara‐ tive Perspective”, in X.E. Kramer and C.H. van Rhee (eds), Civil Litigation in a Globalising World, T.M.C. Asser Press/Springer, 2012, 39.

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pean scale is doubtful, since under the present rules it would imply a choice of forum. After all, due to the rule that the court applies its own rules of procedure (lex fori), litigants can only choose a particular proce‐ dural model by choosing the particular court that uses that model. A choice of forum is only possible in a number of cases and often the rules on jurisdiction prescribe the use of a particular national court. As a result, competition between procedural models is not always possible and conse‐ quently the identification of best practices through competition between legal systems remains a theoretical option. The suggestion of Remo Caponi in his contribution to this volume that in this context the EU Justice Scoreboard26 may serve as a quiet power of harmonization is in my opinion debatable. The scoreboard copies data from the CEPEJ, and it is known that these data are sometimes problemat‐ ic as regards their interpretation. It may even be the case that data on simi‐ lar issues are not comparable since these data are provided by national ministries of justice or similar bodies, and the questions that are being asked by the CEPEJ may be interpreted differently at the national level (also for political reasons). Already at the level of the number of courts in the national legal orders, for example, difficulties have arisen: Are these numbers referring to courts as organizational units or to court locations? As long as these problems are not addressed, and as long as data are pro‐ vided without any solid measures to change the national civil justice sys‐ tems in the preferred direction (as stated, it is debatable whether the EU is competent in this area), nothing much may come from scoreboards. But maybe this is too bleak a view. Burkhard Hess, cited by Remo Caponi in his contribution to the present volume, has a more positive outlook on matters. (G) Conclusion I would like to conclude this contribution with six statements: 1. Procedural harmonization or at least the alignment of national procedu‐ ral legal orders (approximation) is important at the level of the EU as long as we do not have supra-national EU courts dealing with substan‐

26 See http://ec.europa.eu/justice/effective-justice/scoreboard/index_en.htm (last con‐ sulted in September 2016).

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2.

3.

4.

5.

6.

tive EU law in individual cases. It is also important from the perspec‐ tive of creating an area of freedom, security and justice. The starting point of such harmonization or alignment (approximation) can be the identification of best practices which should not be inter‐ preted as minimum standards but aim at high-quality civil litigation. Such best practices should be identified and phrased at a sufficiently concrete level and need to be reflected in a set of European rules of procedure. Since all rules need interpretation and application, there is a real dan‐ ger that a set of procedural rules reflecting best practices will be inter‐ preted in a different manner within the different Member States of the EU with different procedural traditions. Therefore, it is necessary to take measures to prevent such different in‐ terpretations and applications, viz. a text in at least two languages, an overriding objective and clear explanations per rule taking into consid‐ eration comparative law findings. In addition, a body issuing prelimi‐ nary rulings or similar authoritative interpretations of the rules may be essential for the uniform interpretation and application of the rules. Unfortunately, much of this may not be possible within the context of existing EU legal framework. One of the measures to overcome the ex‐ isting limitations is a different interpretation of the phrase ‘cross-bor‐ der implications’ in Article 81 TFEU, as suggested by Tulibacka and others.

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Do We Need Harmonisation to Achieve Harmonious Cooperation? Judicial Cooperation for Criminal Matters as a Testing Field Marta Requejo Isidro Senior Research Fellow MPI Luxembourg/University of Santiago de Com‐ postela

(A) Introduction1 Do we need harmonization to achieve harmonious cooperation? The setting up of an area of freedom, security and justice entailing the free circulation of judicial decisions by means of judicial cooperation has not been without obstacles. An outstanding difficulty lies with fundamen‐ tal rights: whatever the European instruments and institutions may say about their will to protect and to promote fundamental rights, the fact re‐ mains that the more Europe pushes for integration, the more it meets re‐ luctance from national authorities applying the law, appalled by the prospect of having to tolerate a poorer protection of fundamental rights in cross-border cases (for the sake of integration).2 Could procedural harmo‐ nization be a way to overcome this block? In the area of judicial cooperation for criminal matters the answer seems to be “yes”. The need for harmonization (or “approximation”) by way of European legislation is no longer questioned. Nor are the preferred

1 A shorter version of this article was presented in Rotterdam at the conference “From Common Rules to Best Practices in European Civil Procedure”, co-orga‐ nized by the Erasmus University and the MPI Luxembourg. I would like to thank Monique Hazelhorst, who was my discussant in the panel, for her valuable com‐ ments. The paper was delivered in March 2016; later developments in EU law and case law of the CJEU are reflected to the extent it was possible to incorporate them at the stage of proof-reading. 2 And not without reason, if credit is to be given to the data collected for the purposes of comparing the quality of the EU MS justice system: see M. Weller, “Mutual trust within judicial cooperation in civil matters: a normative cornerstone- a factual chimera- a constitutional challenge”, 35 NIPR (2017) 1, at 2-3.

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legal instrument – the directive – or the scope – minimum standards or rules. The debate now centres on the sources of approximation – the ECHR, the ECFR, and the Constitutions of the Member States. By contrast, in the field of judicial cooperation in civil matters debate around the need for approximation is very alive. In 2014 a conference was held in Wiesbaden on the topic; the presentations have been published in a collective volume.3 The European Law Institute with UNIDROIT is lead‐ ing a Project aiming to adapt the ALI-UNIDROIT Principles from a Euro‐ pean perspective in order to develop European Rules of Civil Procedure. In 2015 the European Commission called for tenders to perform an evalu‐ ation study of national procedural laws and practices in terms of their im‐ pact on the free circulation of judgments; in the words of the Commission, “The study should assist the European Commission in deciding on the most efficient manner to tackle any identified problems. Possible options can range from no intervention at all to a full scale of harmonisation of procedural law”.4 The EU Parliament has conducted its own research on the topic.5 Could approximation in judicial cooperation in criminal matters be tak‐ en as a model for civil matters? Both types of judicial cooperation are ad‐ dressed in the Lisbon Treaty under the same Title V concerning the Euro‐ pean area of justice, security and freedom. Judicial cooperation in criminal and civil matters alike turn to mutual recognition for the same purpose: free movement of decisions among the MS. There are examples in CJEU case law6 of the reverse situation, i.e., where judicial cooperation in crimi‐ nal matters has learned from judicial cooperation in civil matters; and re‐

3 M. Weller and C. Althammer (eds), Mindeststandards im europäischen Zivil‐ prozessrecht, Mohr Siebeck, 2015. 4 JUST/2014/RCON/PR/CIVI/0082, Technical specifications, at 8. The idea of har‐ monization had already been in the mind of the Commission before, see e.g. the Communication to the European Parliament and the Council, An area of freedom, security and justice serving the citizen, COM (2009) 262 final: “In civil matters, minimum standards need to be established at European level on specific aspects of civil procedural law taking account of the requirements of mutual recognition. Min‐ imum standards also need to be developed in relation to the recognition of decisions on parental responsibility (including those on custody rights)”. 5 R. Mańko, Europeanisation of civil procedure. Towards Common Minimum Stan‐ dards?, European Parliamentary Research Service, June 2015. 6 CJEU, case C‑168/13 PPU, Jeremy F., ECLI:EU:C:2013:358, para. 50, where the CJEU refers “by analogy” to CJEU, case C‑491/10 PPU, Aguirre Zarraga, ECLI:EU:C:2010:828.

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searchers have borrowed from the latter to explain the former.7 Finally, an affirmative answer to the question has been suggested, or openly asserted, by scholars8 and politicians.9 In the light of the foregoing it seems worthwhile to explore the experi‐ ences on approximation in the field of judicial cooperation in criminal matters; and further whether it would be plausible to export this judicial cooperation to the civil realm. However, some caveats about this exploration are in order. First, it fo‐ cuses on approximation of procedural rights and guarantees;10 substantive harmonization is excluded. This, of course, risks distorting the picture. As a matter of fact, the civil and criminal areas diverge in this point from the very roots: the (purported, but to a large extent real) absence of regulatory interests in civil matters has allowed judicial cooperation to work on the assumption that the Member State legal systems are equivalent; from early EU history, they have been considered as essentially interchangeable; no substantive approximation has been needed and choice of law rules har‐ monization has been deemed enough. Besides, MS have agreed on com‐ mon jurisdictional rules for the adjudication of the cases, which enhance legal certainty of the applicable law. The area of criminal law is radically different, due to its links to sovereignty, national identity and the scale of values of a given community. Actually, scholars explain the positive obli‐ gation11 of art. 82.2 TFEU to take into account the differences between the legal traditions and systems of the Member States by criminal law having its roots on sovereignty and national identity.12 If the State’s control and punitive power over individuals are to be extended beyond its borders, as

7 In academia, see C. Janssens, The Principle of Mutual Recognition in UE Law, OUP, 2013, at 226-229, on guidelines provided by the CJEU’s case law in the area of mutual recognition in civil matters. 8 M. Weller, “Mutual Trust: in search of the future of European Union private inter‐ national law”, 11 IJPL (2015) 64, at fn. 91, 92. 9 V. Reding, “Strengthening Mutual Trust: Towards a True European Area Of Civil Justice”, Public Lecture, Max Planck Institute Luxembourg, 25 March 2014, at 13, http://www.mpi.lu/fileadmin/mpi/medien/news/2014/4/Speech_VP_Reding.pdf (last visited 20.2.2016). 10 Of accused and suspected persons, exclusively; victims are left out. 11 S. Peers, EU Justice and Home Affairs Law, Oxford EU Law Library, 2011, reprinted 2013, at 670. 12 M. Möstl, “Preconditions and Limits of Mutual Recognition”, 47 CMLR (2010) 405, at 420.

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is the case within the EU, attention to the substantive law and underlying policies (prevention, punishments, deterrence, reinsertion) and basic prin‐ ciples (legal certainty, the legality and the proportionality of the penalties) cannot be avoided.13 It is worth recalling that there are no common rules for the distribution of international jurisdiction in criminal matters: this adds to the relevance of substantive approximation. The second caveat also relates to the scope of this study: as indicated, it concentrates on cooperation via approximation of procedural rights and guarantees. However, several tools are combined in the area of judicial co‐ operation in criminal matters to enhance mutual trust by way of supporting procedural rights: eg, a consultation mechanism between the authorities of the issuing and the requested Member States involved in a particular case, should the latter decide not to execute a decision of the former on the grounds that the person concerned had not been sufficiently informed of specific rights, such as the right to contest the case.14 Our choice of scope does not ignore these other tools, but does not elaborate on them either; hence it offers only a fragmentary vision of a much richer scenario. (B) History and Evolution of Judicial Cooperation in Criminal Matters (1) Background and First Steps towards Judicial Cooperation in Criminal Matters Judicial cooperation in criminal matters was born in the late XIX century out of necessity, linked to the limits imposed by territoriality. In the begin‐ ning, it helped States to promote their own single interests. It was based on comity and reciprocity: following the “request principle”, it consisted of a State consenting to an act of sovereignty of a foreign State taking place in its territory upon the request of the latter. Cooperation belonged to

13 The application in practice of the European Arrest Warrant (EAW), created by the Council Framework Decision 2002/584/JHA of 13 June 2002, brought up issues of legality and proportionality regarding minor offences. Other controversial ques‐ tions have been dual criminality, prison conditions and the definition of “judicial authority”. See A. Erbeznik, “The Principle of Mutual Recognition as a Utilitarian Solution, and the Way Forward”, 2 EuCLR (2012) 4, at 7, with further references. 14 See e.g. Art. 7.3 of the Council Framework Decision 2005/214/JHA of 24 Febru‐ ary 2005 on the application of the principle of mutual recognition to financial penalties.

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foreign affairs policy and was governed by principles of political opportu‐ nity and discretion; it used to be slow and complex. The rationale for cooperation in criminal matters evolved quickly. While a State’s sovereignty was limited by its national borders, criminal activities did not respect territorial boundaries; hence the States became aware that mutual cooperation was needed to face international criminali‐ ty, prevent impunity and achieve social justice. This became particularly true in the second half of the last century, when international criminal ac‐ tivity flourished – terrorism, drug and human trafficking – and criminal law could no longer be effective without interstate alliances. Bilateral and multilateral agreements were signed to improve the efficiency of the na‐ tional criminal systems. The works of the Council of Europe deserve spe‐ cific mention for setting the foundations which allowed further EU coop‐ eration in this area. In this context, it is interesting to note that in 1993 the Council of Europe put forward a proposal of recommendation to draft a model code in criminal law, as well as in criminal procedural law.15 Within today’s EU the first contacts for cooperation in criminal matters took place around 1975, when the so-called Trevi Group agreed on various common strategies to fight terrorism. In 1977 the Strasbourg Convention on the suppression of terrorism was adopted in the framework of the Council of Europe; it was followed three years later by the Dublin Agree‐ ment to make the Convention applicable in extradition proceedings be‐ tween Member States. However, the agreement never entered into force, and real achievements in criminal judicial cooperation did not appear until the failure of the draft convention on the cooperation in criminal matters in 1980, and the failure of the attempts to create a European criminal court. Criminal law became an explicit topic for EU law with the Maastricht Treaty which entered into force in 1993 and established the so-called "three-pillar structure" of the European Union. Judicial cooperation, placed under the third pillar, was still intergovernmental. In the period be‐ tween the Maastricht and the Amsterdam treaties some Joint Actions were

15 An idea taken up by scholars (among others, Hanna Kuczynska, “The Problem of a European Code of Criminal Procedure”, PIE, Perspectives, on line March 2006, http://revel.unice.fr/pie/index.html?id=284, last visited 1.3.2016), as well as by the Commission, The EU Justice Agenda for 2020 – Strengthening Trust, Mobility and Growth within the Union, COM (2014) 144 final.

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adopted addressing procedural issues, such as the exchange of liaison magistrates or the creation of the European judicial network. In 1997 the Treaty of Amsterdam introduced Art. 31 into the EU Treaty aiming at “common action on judicial cooperation in criminal matters”. The Treaty inaugurated the European area of freedom, security and jus‐ tice; competences on judicial cooperation for civil matters were allocated to the Union, while criminal cooperation remained in the third pillar under Title VI. In an attempt to abandon the strategy of conventions a new in‐ strument, the framework decision, was created to enhance cooperation in criminal matters.16 The basic policy guidelines for the development of civil and criminal judicial cooperation were established by the European Tampere Council, 15-16 October 1999, which represented a significant development. The Council declared that the “principle of mutual recognition should become the cornerstone of judicial cooperation in (both civil) and criminal matters within the EU”, and that “enhanced mutual recognition of judicial deci‐ sions and judgments and the necessary approximation of legislation would facilitate co-operation between authorities and the judicial protection of individual’s rights”. Mutual recognition was therefore established as a pol‐ icy principle to be applied in the area of judicial cooperation through sec‐ ondary EU legislation. The legal action would extend to aspects of proce‐ dural law on which common minimum standards were considered neces‐ sary to facilitate the application of the principle of mutual recognition. In 2001, the Programme of measures to implement the principle of mu‐ tual recognition of decisions in criminal matters17 recalled that “the imple‐ mentation of mutual recognition presupposes that Member States have trust in each other’s criminal justice systems grounded on the shared com‐ mitment to… respect for human rights… and the rule of law”. However, albeit procedural safeguards were mentioned among the parameters to which the mutual recognition programme was to be applied, there was no follow up by any specific action. In contrast, the adoption of mutual recognition measures happened quite soon after, triggered by the tragic events of September 11, 2001: almost immediately Framework decision

16 Framework decisions are similar to directives in that they only bind as to the re‐ sult, but differ heavily from them in that they do not produce a direct effect. At any rate, national law has to be interpreted in light of the framework decisions: CJEU, case C-105/03, Pupino, ECLI:EU:C:2005:386. 17 OJ 2001, C 12.

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2002/584/JHA on the European Arrest Warrant was adopted, followed by other framework decisions inspired by the same philosophy of repression of crime. Work on the approximation of procedural rights of accused and suspected persons only started later and achieved no real outcome until the Lisbon Treaty, prompting comments like: “It seems that “justice” is des‐ tined to be of secondary importance to “security” for at least the next five years. A greater emphasis appears to be being placed on prosecution and enforcement measures than on defendants’ procedural rights”.18 The Lisbon Treaty, in force since 2009, entailed the end of the “third pillar”; judicial cooperation in both civil and criminal matters is now joint‐ ly regulated under Title V of the TFEU, Art. 67 and Arts. 82-86. Accord‐ ing to Art. 67.3 TFUE, “The Union shall endeavor to ensure a high level of security through measures to prevent and combat crime, racism and xenophobia, and through measures for coordination and cooperation be‐ tween police and judicial authorities and other competent authorities, as well as through the mutual recognition of judgments in criminal matters and, if necessary, through the approximation of criminal laws”. Art. 82.1 reads “Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83”. Art. 82.2 points to the directive as the preferred tool for establishing mini‐ mum rules necessary to facilitate mutual recognition of judgments and ju‐ dicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension. In the aftermath of the adoption of the Treaty of Lisbon the Stockholm Programme (An Open and Secure Europe Serving and Protecting Citizens) recalled that the protection of the rights of suspected and accused persons in criminal proceedings is a fundamental value of the Union, essential in order to maintain mutual trust between the Member States. It also wel‐ comed the adoption by the Council of the Roadmap for strengthening pro‐ cedural rights of suspected or accused persons in criminal proceedings,19 and invited the Commission to examine further elements of minimum pro‐

18 House of Lords, European Union Committee, 1st Report of Session 2004-05, “Procedural Rights in Criminal Proceedings”, para. 204. 19 Resolution of the Council of 30 November 2009 on a Roadmap for strengthening procedural rights of suspected persons in criminal proceedings, OJ 2009, C 295. On 10 June 2011, another resolution was published – Resolution of the Council on

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cedural rights for suspected and accused persons, and to assess whether other issues needed to be addressed to promote better cooperation in this area.20 (2) Procedural Safeguards: From 2000 to 2009 and Beyond The approximation of procedural rights in criminal proceedings had been approached even before the Lisbon Treaty entered into force. A Green Pa‐ per on Procedural Safeguards for Suspects and Defendants in Criminal Proceedings throughout the European Union was adopted in February 2003,21 as a first step towards the setting of minimum common standards. In April 2004, the Commission published a Proposal for a Council Frame‐ work Decision on certain procedural rights in criminal proceedings throughout the European Union,22 which was abandoned in 2007 and fi‐ nally withdrawn in 2009. The Proposal failed because of opposition by certain States – the UK, the Czech Republic, Ireland, Malta and Slovakiawhich considered the protection of procedural rights laid down in Articles 5 and 6 of the ECHR to be sufficient.23 The argument had both supporters and critics: the former recalled that the Proposal was actually limited to the most basic components of a fair trial, and therefore it had “little added value in comparison to the provisions of the ECHR”.24 The latter pointed out that the ECtHR and its case law only establish minimum standards, in‐ sufficient to provide a clear theory on controversial issues such as the ad‐

20 21 22 23 24

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a roadmap for strengthening the rights and protection of victims, in particular in criminal proceedings, which has led to Directive 2012/29/EU of the European Par‐ liament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, and Regulation (EU) no 606/2013 of the European Parliament and of the Council Of 12 June 2013 on mutual recognition of protection measures in civil matters. OJ 2010, C 115 at para. 2.4. COM (2003) 75 final. COM (2004) 328 final. Prior to the Lisbon Treaty decision-making on third pillar issues usually required unanimity; consensus on procedural matters was quite difficult to achieve. M. Thunberg Schunke, Whose Responsibility? A Study of Transnational Defence Rights and Mutual Recognition of Judicial Decisions within the EU, Intersentia, 2013, at 14.

Do We Need Harmonisation to Achieve Harmonious Cooperation?

missibility of evidence or the exclusionary rule.25 Indeed, studies under‐ taken on the degree of compliance of the European Member States with their ECHR obligations show significant deficiencies. For instance, be‐ tween 2007 and 2010 an assessment of the rights of suspects and defen‐ dants within Europe in the light of the ECHR concluded that a consider‐ able number of European countries do not fulfil the obligations resulting from the Convention.26 It is worth mentioning that the conclusion has been explicitly taken up by the lawmaker: see Recital 5 of the Directive 2013/48/EU, “Although the Member States are party to the ECHR and to the ICCPR, experience has shown that that alone does not always provide a sufficient degree of trust in the criminal justice systems of other Member States”.27 In November 2009 the Council adopted a resolution entitled “Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings”.28 The resolution inaugurates a complete change of the strategy towards harmonizing criminal procedural safeguards in the EU in that it focuses on individual specific rights, namely: translation and interpretation; information of rights and information about charges; legal advice and legal aid; communication with relatives, employers and con‐ sular authorities; safeguards for vulnerable groups; pre-trial detention. Some of these have already crystallized in Directives; other Directives are in the making (see below).

25 Erbeznik, supra n. 13, at 8. 26 T.N.B.M Spronken and D.L.F. de Vochtf, “EU Policy to Guarantee Procedural Rights in Criminal Proceedings: Step by Step", 37 N.C. J. Int'l L. & Com. Reg. (2011) 436, at 440, 447-448. 27 Directive 2013/48/EU of the European Parliament and of the Council of 22 Octo‐ ber 2013 on the right of access to a lawyer in criminal proceedings and in Euro‐ pean arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with con‐ sular authorities while deprived of liberty. 28 Supra n. 19.

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(C) Mutual Recognition, Approximation, Equivalence, in Judicial Cooperation for Criminal Matters (1) Mutual Recognition versus/and Approximation Approximation (or harmonization) is not an end in itself; rather, it is a means towards European integration, just like mutual recognition. Both can be described as strategies, or tools, for the free movement of goods, individuals or decisions, within an area free of territorial and juridical boundaries ad intra. According to Art. 82.1, “Judicial cooperation in criminal matters in the Union shall be based on the principle of mutual recognition of judgments and judicial decisions and shall include the approximation of the laws and regulations (…)”. As to the question, how do mutual recognition and ap‐ proximation interact in criminal law and criminal procedural law, scholars try to answer by taking mutual recognition in the internal market as the point of departure and comparing both areas.29 Even the language typical to the internal market is transplanted to criminal law: “By establishing a level playing field of those aspects of criminal procedure, the authors of the Treaties sought to facilitate the free movement of judicial decisions”.30 In this context, three elements come to mind: approximation, mutual recognition, and equivalence. Conceptually, mutual recognition may oper‐ ate with or without equivalence, and equivalence may be reached with or without approximation. In other words, mutual recognition does not neces‐ sarily require the approximation of national laws;31 it can even be said that at first glance they are mutually-exclusive tools for the same aim of inte‐

29 This is the standpoint of papers and monographs – see for instance C. Janssens and W. van Ballegooij, The Nature of Mutual Recognition in European Law, Intersen‐ tia, 2015. By contrast, civil judicial cooperation is seldom referred to as a term for comparison – see nevertheless V. Mitsilegas, “The Limits of Mutual Trust in Euro‐ pe’s Area of Freedom, Security and Justice: From Automatic Inter-State Coopera‐ tion to the Slow Emergence of the Individual”, 31 Yearbook of European Law (2012) 319. 30 K. Lenaerts, The Principle of Mutual Recognition in the Area of Freedom, Securi‐ ty and Justice, The Fourth Annual Sir Jeremy Lever Lecture, All Souls College Oxford, 30 January 2015, at 9. 31 Interestingly, the Treaty establishing a Constitution for Europe (2004) considered mutual recognition as a basis for mutual confidence among the authorities of the Member States, and not the other way around: see Art. I-42, 1(b).

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gration. However, the antagonism between the concepts of “mutual recog‐ nition” and “approximation” should not be overestimated; in fact, it is li‐ mited to full harmonization. While mutual recognition may be compulsory absent approximation, and even equivalence, it is not impossible for both tools to work together, some degree of harmonization or approximation being set up beforehand to facilitate mutual recognition. In the history of the EU lawmaking mutual recognition applied first and foremost to the internal market; it still does. Therein it aims at avoiding double burdens to persons, services or goods when, having complied with the legal requirements and controls in their Member State of origin, they try to access another Member State market. It therefore imposes on the Member States the duty to accept (sometimes automatically, sometimes through an intermediate, harmonized procedure)32 those goods, services or persons, even if the quality standards they fulfil according to the Member State of origin are lower than those in force in the Member State of desti‐ nation. Only very narrow exceptions, linked to the protection of precise objectives of general interest and falling within the so-called “rule of rea‐ son”,33 are admitted. Nonetheless, in sensitive areas such as health and safety where a specific level of protection cannot be given up, or in order to ensure the achievement of social and economic goals within the internal market, the will to maintain mutual recognition has led to prior harmo‐ nization. In conclusion, whereas harmonization is not a general precondi‐ tion to mutual recognition – in theory, at least, recourse to it is residual- it may nevertheless be needed in order to provide an acceptable level of functional equivalence. (2) In the context of criminal judicial cooperation (a) Mutual Recognition, Approximation and Fundamental Rights Since 1999 mutual recognition has also applied to judicial cooperation in criminal matters backing the free movement of judicial orders and deci‐ sions. However, opposite to what happens in the context of the internal market, from the perspective of the individuals against whom those deci‐

32 Meant to determine equivalences: see for instance the case of professional qualifi‐ cations. 33 CJEU, case C-120/78, Cassis de Dijon, ECLI:EU:C:1979:42.

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sions are taken mutual recognition does not create an advantage. On the contrary, it eliminates the barriers to the coercive powers of the Member States, putting at risk the rights and liberties of the persons concerned in‐ stead of promoting their freedom.34 As a consequence mutual recognition highlights the need to protect the individual facing the State: in other words, his fundamental rights. The inevitability of a stringent condition of functional equivalence among the Member States vis-à-vis the individual’s fundamental rights,35 among which the procedural ones play a significant role, was soon evident for the EU and the Member States alike, especially in the face of the Euro‐ pean measures adopted after September 11, where the rights of the indi‐ viduals were given little consideration. No ground of non-recognition/ execution based on the violation of fundamental rights in the issuing State was included therein; as for procedural safeguards, only very narrow ex‐ ceptions were permitted.36 The Communication from the Commission to the Council and the European Parliament, Mutual Recognition of Final Decisions in Criminal Matters,37 posited that mutual recognition could not entirely replace the approximation of law regarding fundamental rights and procedural safeguards: rather, the two went hand in hand. More specifically, the Commission suggested that common standards could be necessary on the subject of access to legal advice and representation, inter‐ pretation and translation. One year before, the Tampere conclusion no. 3 had explained that “In this programme, work should also be launched on (…) those aspects of procedural law on which common minimum stan‐ dards are considered necessary in order to facilitate the application of the principle of mutual recognition, respecting the fundamental legal princi‐ ples of Member States”. In 2005 The Hague Programme put substantive and procedural approximation on the same footing in order to achieve ju‐ dicial cooperation in criminal matters: “The European Council recalls that the establishment of minimum rules concerning aspects of procedural law

34 A point stressed by many authors: Erbeznik, supra n. 13, at 5; K. Lenaerts, supra n. 30, at 3, quoting M. Möstl. 35 K. Lenaerts, supra n. 30, at 9, “They rightly believed that a Member State would be more likely to recognise and enforce decisions issued in other Member States if the fundamental rights of the person(s) concerned were properly protected throughout the EU”. 36 See for instance Art. 5(1) EAW, before the 2009 amendment. 37 COM (2000) 0495 final. See today’s Art. 82.2.b TFUE.

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is envisaged by the treaties in order to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension. The approximation of substantive criminal law serves the same purposes and concerns areas of particular serious crime with cross border dimensions”.38 The conviction that mutual recognition and approximation (and equivalence, for that mat‐ ter) go together in the criminal area; or, one step further, the idea that the former cannot exist without the latter, was and is supported by academia as well: “el mutuo reconocimiento sólo puede ser la consecuencia y el fru‐ to de una labor previa de armonización normativa”.39 In light of the foregoing, the analysis of EU instruments adopted so far in the field of judicial cooperation in criminal matters is to some extent disappointing – although as the area is in permanent evolution, it is too early for final conclusions.40 To date some approximation has actually been achieved, both substantive and procedural, although admittedly not too much. Concerning procedure, the framework decisions and directives for judicial cooperation provide for common procedural rules channelling mutual recognition itself; some (not many) rules have been adopted to har‐ monize national procedures. The EU has started to produce harmonized, trust-enhancing legislation:41 several measures providing for procedural safeguards of accused and suspected persons try to compensate for the lack of compliance of the Member States with their obligations under the ECHR.42 However, they are examples of a strain between mutual recogni‐ tion and approximation which surely cannot be labelled as “unique” with‐ in the EU, but is perceived more acutely due to the interests at stake. The

38 COM(2005) 184 final, OJ 2005, C 236. 39 V. Moreno Catena, “El cambio de paradigma y el principio de reconocimiento mu‐ tuo y sus implicaciones. Perspectivas del Tratado de Lisboa”, in M. Carmona Ru‐ ano et al. (eds), Cooperación judicial penal en Europa, Universidad Carlos III de Madrid, Instituto de Justicia y Litigación Alonso Martínez, 2013, at 66. 40 E.g., two legislative measures were adopted only last year, thus transposition is pending: Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings; and Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European ar‐ rest warrant proceedings. 41 In the words of K. Lenaerts, supra n. 30, at 9. 42 See supra n. 26, 27.

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existing Directives on procedural rights are limited both in their scope and in the degree of harmonized protection they lay down and restricted to minimum standards, therefore a higher level of protection by the Member States remains – although its repercussion in cross border cases is all but clear, as we will see below.43 All in all, it is probably fair to say that in the field of judicial coopera‐ tion for criminal matters approximation is intuitively felt as a natural precondition of mutual recognition, for it creates the foundations of an equiv‐ alence which in this field cannot, or should not, be taken for granted.44 At the same time there still exists at the (European) institutional level an “in‐ terés (…) de mantener una jerarquía entre ambos principios en beneficio del reconocimiento mutuo”,45 in the same way as in other areas where the EU has legislative competence. As we will see below, the case law deliv‐ ered by the CJEU to this day points in the same direction.46 (b) The CJEU. Mutual Trust beyond Approximation As a result of the late allocation of competence to the EU for judicial co‐ operation in criminal matters the CJEU has not had to date many opportu‐ nities to get involved in the area. The situation changed with the Treaty of Lisbon; as from 1 December 2014 the Court can also interpret pre-Lisbon measures. Not surprisingly, the case law of the Court remains limited in the area of judicial cooperation for criminal matters;47 still, what it has said is far from irrelevant.

43 Under D.2. 44 This does not exclude a model where equivalence is presumed in abstracto, pro‐ vided the opportunity exists for the presumption to be rebutted. 45 M. Jimeno Bulnes, “El modelo de espacio judicial europeo en materia penal antes y después de Lisboa: ¿justicia versus seguridad o seguridad versus justicia?”, in Liber Amicorum F. Gutiérrez-Alviz Conradi, Atelier, 2013, at 313, 314. In the same lines, T. Armenta Deu, “Europeización del proceso penal y derechos funda‐ mentales: guía y condicionante”, in ibidem, at 75. 46 Meaning approximation is limited to a minimum and the remaining divergences among the Member State legal systems are disregarded. On the contrary, it does not entail that the autonomous, thus common interpretation of the grounds for nonrecognition (or allowing refusal of execution) based on procedural rights concerns, is necessarily restrictive: see infra, n. 62 and text. 47 On February 2016, under the rubric “harmonization” on the website of the Court we could find the following: three decisions on the Council Framework Decision

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One can begin with cases C-187/01 and C-385/01, at para. 32, where the CJEU expressed the view that mutual recognition is built on a system of mutual trust and does not need prior approximation. The Court has been heavily criticized for an interpretation made at the expense of greater re‐ spect for the Member States’ penal law systems, and not surprisingly alter‐ native explanations have been proposed. Indeed, the cases have been de‐ scribed as limited and specific, to the extent that the criminal issue under consideration happens to be the ne bis in ídem principle, i.e. a topic where mutual recognition works in favour of the individual against whom the foreign decision (to be recognized) has been delivered: here, mutual recognition protects him against a double burden and facilitates his/her freedom of movement.48 In other words, the underlying logic is the same as that which explains mutual recognition within the internal market. This means that its extrapolation to any other context would be highly dis‐ putable.49 Nevertheless, the CJEU has already done so: in case C- 303/05 it reiterated that nothing in Title VI of the EU Treaty made the application of the EAW conditional upon prior harmonization in a case where the principles of legality and non-discrimination were at stake.50 This attitude in support of mutual recognition also prevails as regards the grounds of non-recognition/execution listed in the EU instruments. All EU instruments on judicial cooperation in criminal matters provide grounds for non-recognition or non-execution, showing thereby the persis‐ tent quality of resistance against mutual recognition and the insufficiency of the approximation reached so far. Interestingly, though, some of the grounds are mandatory (actually only those in Art. 3 EAW), while most are only optional. What “optional” means is unclear: the preferred expla‐

2001/220/JHA – now replaced by Directive 2012/29/EU of the European Parlia‐ ment and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime; three on the EAW; and only one on the two first Directives on procedural rights for accused and suspect per‐ sons. The CJEU is nevertheless quite active in the field: only one year later at least five other decisions have been delivered regarding the EAW, another one of the Grand Chamber on FD 2008/909/JHA, one on Directive 2010/64, and even one re‐ lating to the yet-to-be-transposed Directive 2016/343. 48 V. Mitsilegas, supra n. 29, at 338; M. Möstl, supra n. 12, at 419, fn. 60; C. Janssens, supra n. 7, at 160. 49 M. Möstl, supra n. 12, at 419, fn. 60. 50 CJEU, case C-303/05, Advocaten voor de Wereld, ECLI:EU:C:2007:261, para. 59. Again, it has met with criticism from academia: V. Mitsilegas, supra n. 29.

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nation points to the authority of the Member State requested being allowed to decide whether to apply them or not, thus enjoying a margin of discre‐ tion; but it could also imply that a Member State can choose to adopt them as mandatory when implementing the directive or framework decision. The latter has been the understanding of some countries51. In this context, the usual absence of a public policy clause (thus, of an open-texture, flexible clause) and the rare presence of a clause of funda‐ mental rights in the instruments for judicial cooperation in criminal mat‐ ters must be recalled.52 This does not mean that concerns related to due process are absent or that the violation of procedural rights is not apt to bar mutual recognition. Council Framework Decision 2009/299/JHA53 has amended several framework decisions by way of introducing an optional ground for non-execution in the case of judgments or orders rendered in absentia. Besides, the Member States’ constitutional rules relating to due process may also have a role to play under the general umbrella-clause provided for by Art. 53 ECFR. Moreover, it is not unusual that they are al‐ luded to in a recital of the European legal instruments with this or a simi‐ lar wording: “This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process (…)”.54 How‐ ever, the CJEU has interpreted the rules in a way that curtails the real pos‐

51 See Chapter 2, section 4 para. 2 of the Sweden Act (2003:1156) on Surrender from Sweden according to the European Arrest Warrant. Also, the CJEU decision in case C-42/11, Lopes da Silva, ECLI:EU:C:2012:517, rejecting the French transpo‐ sition of art. 4.6 FD EAW, arts 695-24 of the French Code of Criminal Procedure, because it automatically excluded non-French nationals from this ground. 52 See nonetheless Art. 20.3 Council Framework Decision 2005/214/JHA; Art. 11.1 of the Directive 2014/41/EU on the European Investigation Order. Scholars advo‐ cate the introduction of a clause not only related to the violation of human rights, but also of “fundamental constitutional principles”: Erbeznik, supra n. 13, at 18. 53 Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing procedural rights of persons and fostering the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial, was adopted to en‐ hance the procedural rights of persons and to foster the application of the principle of mutual recognition to decisions rendered in the absence of the person concerned at the trial. 54 See recital 12 FD EAW, as well as recital 6 of the Council Framework Decision 2005/214/JHA, or recital 6 of the Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence, with the same wording.

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sibility of introducing new procedural grounds of non-recognition.55 True, the reference above to the Member State crystallized in the CJEU accept‐ ing that they make available further protection of the right to a fair trial: but only “provided that the application of the Framework Decision is not frustrated”.56 The opinion is in line with the well-known case C-399/11, Melloni,57 where the CJEU was asked whether the execution in a Member State of a European arrest warrant could be made conditional upon the conviction rendered in absentia being open to review in the issuing Mem‐ ber State. Allegedly in the case at hand the convicted was not unaware of the scheduled trial. According to the Court, whereas art. 53 ECFR allows national authorities and courts to apply national standards of protection of fundamental rights where an EU legal act calls for national implementing measures, they can do so provided that the level of protection offered by the Charter, as interpreted by the Court, and the primacy, unity and effec‐ tiveness of EU law are not thereby compromised. To the extent that the Framework Directive decision at stake already “effects a harmonisation of the conditions of execution of a European arrest warrant in the event of a conviction rendered in absentia”, providing for an exhaustive list of grounds for non-execution, the answer in the case at hand was a negative one.58

55 A less radical interpretation has been proposed by C. Janssens, supra n. 7, at 209: neither Radu nor Melloni were the appropriate cases to introduce a clear answer on whether Member States are allowed to refuse recognition of a EAW on grounds that fundamental rights are at stake. In the same lines regarding Radu C. Janssens and W. van Ballegooij, supra n. 29, at 270. Besides, the autonomous, thus common interpretation of the grounds for non-recognition (or allowing refusal of execution) is not necessarily restrictive: see below, at the end of this para. 56 Case C-168/13, Jeremy J., ECLI:EU:C:2013:358, para. 52, 53: “in the absence of further detail in the actual provisions of the Framework Decision, and having re‐ gard to Article 34 EU, which leaves to the national authorities the choice of form and methods needed to achieve the desired results of framework decisions”. At stake was the possibility of bringing an appeal with suspensive effect against a de‐ cision to execute a European arrest warrant or a decision giving consent to an ex‐ tension of the warrant or to an onward surrender. 57 ECLI:EU:C:2013:107. Along the same lines, another renowned example of the hostility of Court is case C-396/11, Radu, ECLI:EU:C:2013:39 on whether the au‐ thority of the requested State can refuse execution of an EAW on the ground that the affected person had not been heard before the warrant was issued. 58 CJEU, case C-399/11, Melloni, ECLI:EU:C:2013:107, para. 44, 60-63.

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The Court’s attitude has raised concerns in the Member States. A good illustration is the order of the Bundesverfassungsgericht of December 15, 2015, on the EAW, where the German Court elaborates in the abstract on when European Law is to be accorded precedence in the German legal system.59 Under factual circumstances similar to the ones in Melloni, the Senate reversed and remanded an order of the Düsseldorf Higher Regional Court (Oberlandesgericht) to extradite a US citizen to Italy, where he had been sentenced in absence to a custodial sentence. However, several fac‐ tors of the case under consideration differed from the Melloni background which may account for the outcome: the person concerned had not been aware of the trial in the issuing State; the provision under analysis was Art. 4 d(i) of the EAW Framework decision – the violation of the German GG was linked to the Higher Regional Court failing “to follow up on the substantiated and plausible objections made by the complainant” as to the conditions under which a new evidentiary hearing in Italy would actually take place. But precisely because the differences may explain the final re‐ sult, the general and theoretical reflections of the Bundesverfassungs‐ gericht on when European Law is to be accorded precedence in the Ger‐ man legal system are much more telling. The Bundesverfassungsgericht took care to word its Order in a way that suggests compliance with the EAW Framework decision and CJEU case law. The fact remains that Member States may and do feel uncomfortable with interpretations of the CJEU ignoring their constitutional standards: they may be ready to limit them in exceptional circumstances, but not to give them up for good.60 The situation is also likely to arise regarding the directives on minimum procedural safeguards for accused and suspected persons, as will be explained below. At any rate, as the Court has not had many occasions so far to intervene regarding judicial cooperation in crimi‐

59 For an English press release of 26 January 2016 see https://www.bundesverfas‐ sungsgericht.de/SharedDocs/Pressemitteilungen/EN/2016/bvg16-004.html (last visited 20.2.2016). 60 The debate will certainly go on. As an example, on February 15, 2016, the CJEU heard cases C-404/15 and C-659/15, Aranyosi and Căldăraru (ECLI not avail‐ able). Nine countries plus the Commission presented submissions. Only two (one with specific reference to Melloni) were in favour of executing an EAW without any checks beyond the grounds mentioned in Art. 3 and 4 of the framework deci‐ sion; the remaining States and the Commission, as well as the referring national judge, were opposed to what they qualified as “blind trust”. The hearing has been reported at http://eulawanalysis.blogspot.lu (last visited 20.2.2016).

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nal matters, a development towards a conciliatory attitude in regard to pro‐ cedural rights of different sources should not (yet) be definitively exclud‐ ed. And finally, to be fair the following has to be said: the support given by the CJEU to mutual trust61 must not be confounded with a low level of (EU) protection of fundamental rights. The Court does not necessarily ad‐ vocate a restrictive autonomous (thus common) interpretation of the grounds for non-recognition listed in the EU instruments. For instance, in case C-306/09, I.B., a broad reading was preferred, hence allowing the ex‐ ecuting Member State to subject the execution of a European arrest war‐ rant issued for the purposes of execution of a sentence imposed in absentia to the condition that the person concerned, a national or resident of the ex‐ ecuting Member State, should be returned to the executing State in order to serve there the sentence passed against him, following a new trial or‐ ganised in his presence in the issuing Member State.62 In other words, the possibilities of reintegrating the individual into society prevailed over mu‐ tual recognition. Some months later, in case C-108/16, Dworzecki,63 the Court preferred again an interpretation of FW 2002/584/JHA allowing the requested MS the refusal of execution of an EAW when the person did not appear at the trial resulting in the decision, for reasons related to the ser‐ vice of the summons, and this in spite of the opposite views of the Nether‐

61 Which is also present in the conditions under which mutual trust can be tested by a national court in a particular case: see cases C-404/15 and C-659/15, Aranyosi and Căldăraru (ECLI not available). At stake was the issue whether checks directed to assess the protection of fundamental rights by the State issuing the EAW are to be done every time there is a fear of risk for a specific individual, or only upon suspi‐ cion of a systemic failure. The decision of the CJEU, released on April 5, 2016, combines both approaches and imposes a high threshold: “where there is objec‐ tive, reliable, specific and properly updated evidence with respect to detention conditions in the issuing Member State that demonstrates that there are deficien‐ cies, which may be systemic or generalised, or which may affect certain groups of people, or which may affect certain places of detention, the executing judicial au‐ thority must determine, specifically and precisely, whether there are substantial grounds to believe that the individual concerned by a European arrest warrant, is‐ sued for the purposes of conducting a criminal prosecution or executing a custodi‐ al sentence, will be exposed, because of the conditions for his detention in the is‐ suing Member State, to a real risk of inhuman or degrading treatment, within the meaning of Article 4 of the Charter, in the event of his surrender to that Member State”. 62 In the same vein the Opinion of the AG, Cruz Villalon, ECLI:EU:C:2010:404, para. 43-45. 63 ECLI:EU:C:2016:346.

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lands, the UK and Poland, and even if such interpretation is (allegedly) stricter than required under the case-law of the ECtHR on Article 6 ECHR. (3) Allocation of Roles between the Issuing and the Requested Member States To date a number of EU legal instruments have been adopted for mutual recognition in the area of criminal judicial cooperation, covering substan‐ tive and procedural issues such as pre-trial measures, transfers of evi‐ dence, transfer of suspected or convicted persons, and recognition and ex‐ ecution of final court decisions. The following are pre-Lisbon measures, remaining in force until replaced or amended: Council Framework Deci‐ sion 2002/584/JHA on the European arrest warrant and the surrender pro‐ cedures between Member States; Council Framework Decision 2003/577/JHA on the execution in the EU of orders freezing property or evidence; Council Framework Decision 2005/2014/JHA on the application of the principle of mutual recognition for financial penalties; Council Framework Decision 2006/783/JHA on the application of the principle of mutual recognition to confiscation orders; Council Framework Decision 2008/909/JHA on the application of the principle of mutual recognition for judgments imposing custodial sentences or measures involving depri‐ vation of liberty, Council Framework Decision 2008/947/JHA on proba‐ tion decisions and alternative sanctions; Council Framework Decision 2009/315/JHA of 26 February 2009 on the organisation and content of the exchange of information extracted from criminal records between Member States After the Lisbon Treaty the preferred instrument is the directive of which a number have already been adopted: on procedural rights of ac‐ cused and suspected persons; on rights of the victims, such as the Direc‐ tive 2012/29/EU establishing minimum standards on the rights, support and protection of victims; on further topics, such as Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. In the frame of criminal judicial cooperation, mutual recognition usual‐ ly crystallizes in a provision in the texts under the heading “obligation to execute”, or “recognition and enforcement clause”, establishing an obliga‐ tion to recognize the measure of the issuing Member State, with limited grounds for denial of recognition/execution. A usual wording would be 96

Do We Need Harmonisation to Achieve Harmonious Cooperation?

“The competent authorities in the executing State shall recognize a deci‐ sion which has been transmitted in accordance with Article [] without any further formality being required and shall forthwith take all the necessary measures for its execution”.64 However, mutual recognition does not equate home State control, not even with prior approximation. Rather, a sharing of roles takes places among the involved Member States.65 Usual‐ ly the Member State of origin (where the warrant, order or decision, has been issued) is in charge of performing some checks before the issuance of an order.66 It is also within the legal system of the issuing Member State that persons who are the subject of a European warrant (or any other mea‐ sure) can avail themselves of any remedies which allow the lawfulness of the proceedings for the enforcement of the sentence or order, or indeed the substantive criminal proceedings which led to that sentence or order, to be contested.67 The legal system of the Member State of execution plays a role as well: by adapting the order issued by another Member State (although only ex‐ ceptionally and with the consent of the issuing Member State);68 or by re‐ fusing the recognition or execution under specific grounds. Finally, where‐ as execution is usually governed by the law of the requested Member State, sometimes the legal framework of the State of origin still plays a role at the stage of execution.69 A duty to communicate with the issuing Member State may also be imposed on the executing Member State before

64 Art. 6 Council Framework Decision on the application of the principle of mutual recognition to financial penalties. 65 Reflected in CJEU case law, see case C-261/09, Mantello, ECLI:EU:C:2010:683, on who – whether the issuing Member State or the requested one – defines “finali‐ ty” for the purposes of the ne bis in idem exception. 66 See for instance Art. 6.1.a of Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters. 67 See CJEU, case C‑168/13 PPU, Jeremy F., ECLI:EU:C:2013:358, para. 50. 68 See art. 13 and 20.2.f of the Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention. See also Art. 17 of FD 2008/909/JHA, recent‐ ly interpreted by the CJEU in case C- 554/14, Ognyanov, ECLI:EU:C:2016:835. 69 See for instance art. 5.1 of the Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence.

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implementing some decisions related to the foreign order.70 It is worth stressing this duty which, together with other similar measures, connects courts and authorities of the Member States involved, obliging them to co‐ operate via a direct contact (see for instance art. 9.1 and 10.5 FD EAW). The allocation of the tasks for the operation of the mutual recognition principle may be the source of gaps overlaps and inconsistency. The direct communication just alluded to helps to avoid them, but it may not be enough. For instance, scholars have denounced inconsistencies in the ef‐ fective exercise of procedural rights relating to the issue of an EAW, be‐ cause “the lawfulness of pre-trial detention in surrender proceedings may not automatically be subject to full judicial review, in either the issuing or the executing Member State”.71 (D) Approximation of Procedural Rights. The State of the Art (1) Procedures for Mutual Recognition Judicial cooperation in criminal matters has so far led to little (but increas‐ ing) approximation of the national rules for criminal procedure. Approxi‐ mation has materialized in procedures for the operation of the mutual recognition principle itself, and in minimum standards concerning proce‐ dural rights and safeguards of suspected and accused persons (see below, under 2). For the purposes of this study a few words on the former will suffice. All EU instruments for mutual recognition provide (to a greater or a lesser extent) for a framework of common procedural rules: eg, among many others, the procedures governing the transmission of a warrant ac‐ cording to Art. 9 and 10 EAW; the time limits and procedures for the deci‐ sion to execute a warrant, Art. 17; also, Art. 4 of the Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties, on the transmission of decisions and recourse to the central authority, or Art. 12 of the Council

70 See art. 6.2 of the FD 2003/577/JHA, on limits to the period for which the proper‐ ty will be frozen. 71 As denounced in 2015 by the Meijers Committee, “Inconsistent Legal Protection in Mutual Recognition Instruments”, CM1502, online at www.commissie-mei‐ jers.nl (last visited20.2.2016).

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FD on the application, between Member States of the European Union, of the principle of mutual recognition to decisions on supervision measures as an alternative to provisional detention, setting a time limit of 20 work‐ ing days to recognize the decision on supervision measures, starting from the date of receipt. Just as in the field of civil judicial cooperation, standardized forms are used as tools to ease mutual recognition for criminal judicial cooperation: eg, Art. 8 EAW on the content and form of the warrant; Annex II to the FD 2009/829/JHA of 23 October 2009 on the application, between the Member States of the European Union, of the principle of mutual recogni‐ tion to decisions on supervision measures as an alternative to provisional detention;72 or Annex I to Directive 2011/99/EU of the European Parlia‐ ment and of the Council of 13 December 2011 on the European Protection Order. (2) Approximation of Procedural Rights and Safeguards Minimum common rules regarding procedural rights and safeguards of suspected and accused persons address the conflict between the freedom of movement of judicial decisions, and an individual’s right to a fair trial. They are the most relevant outcomes of the efforts undertaken in approxi‐ mating national legislation. Several instruments must be mentioned. First, Council Framework Decision 2009/299/JHA, allowing the judicial author‐ ity of the requested Member State to refuse to execute an EAW issued in absentia for the purpose of executing a custodial sentence. The discretion of the competent national authority is however limited by what can be called “negative harmonization”: when the person was summoned in due time and informed that a decision might be handed down if he or she did not appear for the trial, or when he or she had given a mandate to a legal counsellor to defend him or her at the trial and was so defended, the na‐ tional court must execute the EAW. Moreover, according to CJEU case law the imposition of additional conditions is not excluded, but remains difficult, as explained before. Secondly, some FD decisions and Directives have included specific procedural guarantees: eg, the Council Framework Decision

72 OJ 2009, L 294.

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2003/577/JHA on the execution in the European Union of orders freezing property or evidence, Art. 11, on legal remedies against a freezing order; or the Directive 2011/99/EU of the European Parliament and of the Coun‐ cil on the European Protection Order, Art. 6.4, on the right of the person causing danger to be heard and to challenge the protection measure. Finally and most importantly, several Directives have been adopted im‐ plementing the Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings.73 The Directives establish common minimum rules to increase confidence in the criminal justice sys‐ tems of all Member States, leading to more efficient judicial cooperation in a climate of mutual trust and to the promotion of a fundamental rights culture in the Union.74 So far they are: Directive 2010/64/EU of the Euro‐ pean Parliament and of the Council of 20 October 2010 on the right to in‐ terpretation and translation in criminal proceedings,75 aiming at ensuring interpretation during the investigative and procedural phases of the pro‐ ceedings, as well as during contacts with the defence lawyer, and to the translation of essential documents; Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings,76 aiming at ensuring that suspected and accused persons get information about the charges and the procedural rights in a language they understand,77 at the earliest moment as possible, with the right to access the files of the case also being granted; Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third per‐ sons and with consular authorities while deprived of liberty;78 Directive 2016/343 of the European Parliament and of The Council of 9 March 2016 on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings;79 Direc‐ tive 2016/800 of the European Parliament and of the Council of 11 May

73 74 75 76 77 78 79

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See supra n. 19. Recital 8 Directive 2013/48/EU. OJ 2010, L 280. OJ 2012, L 142. A letter of rights is annexed to the Directive. OJ 2013, L 294. OJ 2016, L 65.

Do We Need Harmonisation to Achieve Harmonious Cooperation?

2016 on procedural safeguards for children who are suspects or accused persons in criminal proceedings, published after the completion of this work;80 and Directive 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest war‐ rant proceedings.81 In addition, the Commission has adopted recommen‐ dations, such as the one on procedural safeguards for vulnerable persons suspected or accused in criminal proceedings;82 and the Recommendation on the right to legal aid for suspects or accused persons in criminal pro‐ ceedings.83 The Directives only set minimums: according to the texts, common minimum standards and common minimum rules. The distinction materi‐ alizes in a different degree of technical precision in the provisions. At any rate, because they are “minimum” Member States are allowed to raise the level of protection for the rights provided for by the EU instruments, and to apply them in situations not expressly dealt with therein; this is explicit‐ ly stated in the Directives.84 This possibility begs the question of the prac‐ tical effects of the divergence in the level of protection among Member States: in other words, of the relationship between mutual recognition, ap‐ proximation and a higher level of protection accorded by a Member State. Directive 2013/48/EU gives a hint: recital 54 states that a higher level of protection “should not constitute an obstacle to the mutual recognition of judicial decisions”. The caveat is not mentioned in the previous Direc‐ tives; it figured in the Proposal for a Directive on the presumption of inno‐ cence but was dropped at a later stage of the negotiations. 85 On the con‐ trary, it is included in Directive 2016/800, recital 67; and in Directive

80 81 82 83 84

OJ 2016, L 132. OJ 2016, L 297. C (2013) 8178/2. C (2013) 8179/2. See recital 32 Directive 2010/64/EU, recital 40 Directive 2012/13/EU, recital 54 Directive 2013/48/EU, recital 48 Directive 2016/343, recital 67 Directive 2016/800, and recital 30 Directive 2016/1919. 85 The Proposal for a Directive on the presumption of innocence included a similar caveat in its recital 29: it was repealed by the European Parliament in its Report of April 2015 (Report on the proposal for a directive of the European Parliament and of the Council on the strengthening of certain aspects of the presumption of inno‐ cence and of the right to be present at trial in criminal proceeding, 21.4.2015, PE 546.756 v 02-00). The Council backed the Parliament on this point: see http://

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2016/1919, recital 30. What inclusion/non-inclusion implies is as difficult to discern as the meaning of the recitals (54, 67, 30) themselves; the more so as it requires a reading compatible with the non-regression provision (art. 14 Directive 2013/48/EU, Art. 23 Directive 2016/800, Art. 11 Direc‐ tive 2016/1919) according to which “nothing in the Directive shall be con‐ strued as limiting or derogating from any of the of the rights and procedu‐ ral safeguards ensured under the ECFR, the ECHR, or other relevant pro‐ visions of international or national law of a Member State providing for a higher level of protection”.86 In this regard some scholars highlight the difference between the internal market and the European area of freedom, security and justice: only in the former can harmonization at the lowest common denominator be compensated for by the choice of the actors in‐ volved (a consumer can opt not to buy a certain product).87 In light of the CJEU opinions on whether Member States are allowed to add further grounds of non-recognition/execution to existing ones88 other views are diametrically opposed: i.e., “the application of national standards of fun‐ damental rights protection must not compromise either the level of protec‐ tion provided for by the Charter or the primacy, unity and effectiveness of EU law” means that “where the EU legislator has harmonised the level of protection that must be granted to a fundamental right and that level com‐ plies with the Charter, a Member State is precluded from laying down higher standards of protection”.89 That the lawmaker left behind him this “untidy” situation is de‐ plorable.90 The CJEU is now left to clarify the point. Indeed, the Court’s reluctance to allow Member States to add grounds for non-recognition/ execution beyond those foreseen in the European texts91 suggests that a higher protection accorded by the implementing national law of a Member State will not be able to produce effects beyond the domestic sphere. Un‐

86 87 88 89 90 91

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data.consilium.europa.eu/doc/document/ST-13471-2015-INIT/en/pdf, last visited 20.2.2016. The ensuing Directive (Directive 2016/343) does not include the clause. A non-regression clause has also been included in the other Directives: Art. 8 Di‐ rective 2010/64/EU; Art. 10 Directive 2012/13/EU; Art. 13 Directive 2016/343. C. Janssens and W. van Ballegooij, supra n. 29, at 18, 140 with further references. See above. K. Lenaerts, supra n. 30, at 5, fn. 17. The more so as there were previous experiences in the domain of Directives for consumer protection. See supra under C.2.b.

Do We Need Harmonisation to Achieve Harmonious Cooperation?

fortunately none of the preliminary rulings on the Directives delivered to date, in cases C-216/14, Covaci, and C- 25/15, Balogh,92 are of help. (3) Assessment It is too early to assess whether in practice approximation is helping to achieve harmonious judicial cooperation in criminal matters. However, we are already witnessing a debate in academia93 and before the national courts94 showing a disagreement that lies not with the technique of ap‐ proximation, but with the more substantial issue of the protection of the rights at stake. Optimistic scholars have recalled that the implementation of the Direc‐ tives setting minimum common standards and rules, and to some extent also their application, will be subject to oversight by the European Com‐ mission and the CJEU alike. Additionally, the CJEU will have the oppor‐ tunity to interpret the common rules in the light of the ECHR and the ECFR via the preliminary reference when requested by a Member State.95 Indeed, in view of the studies confirming the lack of compliance of Mem‐ ber States with the ECHR this should not be underestimated -although whether the EU can legitimately bestow upon itself the competence to pro‐ tect fundamental rights is open to question. However, in 2000 the Com‐ mission referred to the Tampere conclusions as follows: “it must therefore be ensured that the treatment of suspects and the rights of the defence, would not only not suffer from the implementation of the principle [of mutual recognition], but that the safeguards would even be improved through the process”96. With just minimum harmonization the improve‐ ment may be true for some of the current Member States, but it represents a loss for others; what is the added value for them? Member States have shown some reluctance in implementing the Direc‐ tives (and before, the Framework Decisions). In Spain, for instance, Direc‐

92 93 94 95 96

ECLI:EU:C:2015:686, for the former, and ECLI:EU:C:2016:423, for the latter. Compare C. Janssens and W. van Ballegooij, supra n. 29. See supra, under C.2.b. V. Mitsilegas, supra n. 29, at 363-368. Communication from the Commission to the Council and the European Parliament on Mutual Recognition of Final Decisions in Criminal Matters, Commission (2000) 0495, at 16.

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tive 2010/64/UE and Directive 2012/13/UE did not find their way into the national system until April 201597 -the deadline being October 2013 for the former, and June 2014 for the latter. Cyprus, Czech Republic, Luxem‐ bourg, Slovenia, and Slovakia had also failed to notify national transposi‐ tion measures for the Directive on the right to information in criminal pro‐ ceedings.98 Of course there is not one, but many, reasons to account for that. Approximation by way of EU instruments is a source of “secondary problems”: EU rules, even if framed as Directives, may clash with nation‐ al particularisms (as something different from “culture”, which according to Art. 82 TFEU should have been taken into account when drafting the common rules) legal or not,99 and require adaptation to keep the internal consistency and the integrity of the domestic system.100 In this context, the

97 Ley Orgánica 5/2015, de 27 de abril, por la que se modifican la Ley de Enjuici‐ amiento Criminal y la Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial, para transponer la Directiva 2010/64/UE, de 20 de octubre de 2010, relativa al derecho a interpretación y a traducción en los procesos penales y la Directiva 2012/13/UE, de 22 de mayo de 2012, relativa al derecho a la información en los procesos penales. BOE, 28 April 2015. 98 See Commission Staff Working Document Part I: Policy areas accompanying the document Report from the Commission Monitoring the application of European Union law 2015 Annual Report, SWD/2016/0230 final. 99 The implementation of Directive 2010/64/UE in Germany experienced some dif‐ ficulties linked to its budgetary consequences and the way budgetary responsibil‐ ities and competences are allocated in Germany. In Bulgaria the transposition of Directive 2012/13/UE required a substantial amendment of the Criminal Proce‐ dural Code, as the modifications made therein after the fall of the Communism clearly did not meet the requirements imposed by the Directive. Regarding Lux‐ embourg see the explanation to the late transposition, linked to the specific lin‐ guistic regime under http://www.europaforum.public.lu/fr/actualites/2014/09/qpdroits-supects-hahn-braz/index.html (last visited 12.4.2017). 100 See these words of the British Government, explaining its approach to EU legis‐ lation in the area of criminal justice: “We will approach forthcoming legislation in the area of criminal justice on a case-by-case basis, with a view to (…) pre‐ serving the integrity of our criminal justice system” (The Government’s Coalition Agreement, “The Coalition: A Programme for Government”, published on 20 May 2010). In a similar vein UK Parliament support to the Government’s deci‐ sion not to opt-in to the Commission’s proposal regarding the right to a lawyer: “EU minimum rules for criminal procedure can present a significant risk to the functioning of national criminal law systems”, http://www.publications.parlia‐ ment.uk/pa/ld201012/ldselect/ldeucom/288/28809.htm#note147 (2012) (last vis‐ ited 20.2.2016).

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following difficulty has been pointed out: no system can coherently apply two sets of fundamental constitutional rights.101 The contents of the European instruments are definitively a source of dissatisfaction. This is particularly true regarding the Directive on the right of access to a lawyer. Spain and Italy (with the Commission) formulated a joint declaration expressing their disappointment with the level of protec‐ tion finally adopted,102 while stakeholders regretted the abandonment of the Commission’s proposal, and criticized an outcome perceived as lower‐ ing the guarantees provided for by the ECHR.103 With an approach that privileges the individual and the individual’s fundamental rights, scholars support the need for approximation if mutual recognition is to be (as it is) a policy principle in the area: but they would go a step further and ask for an approximation neither limited in its material scope nor confined to the lowest common denominator.104 The costs of full approximation make it impracticable. Therefore, at the end of the day the key issue is to what extent the Member States can use the permission they are accorded in the Directives to provide for a higher or better level of protection. Obviously, the debate on a “higher, better, level” is a much more far-reaching one, touching upon the compromises a community has chosen for itself on the essentials -after all, fundamental rights have always been relative concepts, always balanced with other fun‐ damental rights, the fundamental rights of the others, and other values and goods. Also at stake is the role that national judges believe they have to play. At a moment when the legitimacy of the European concerns is dis‐ puted,105 the CJEU’s reference to whether “the application of national standards of fundamental rights protection must not compromise either the level of protection provided for by the Charter or the primacy, unity and effectiveness of EU law” should not be reduced to a clause of style or a matter of form to rule out Member State’s inclination to ensure procedural rights in cross-border settings. Moreover, the assessment of the require‐ 101 Erbeznik, supra n. 13, at 4, 15. 102 Reproduced by C. Janssens and W. van Ballegooij, supra n. 29, at 209-210. 103 See CCBE (Council of the Bars and Law Societies of Europe) response to the Council text of 31 May 2012 regarding the proposed directive on the right of ac‐ cess to a lawyer, http://www.ecba.org/extdocserv/projects/ps/20120507_JointRe‐ sptoCouncilRevtextMeasureC.pdf (last visited 20.2.2016). 104 For all see C. Janssens and W. van Ballegooij, supra n. 29, at 209-210. 105 On February 19, 2016, a compromise was reached between the UK and the EU which definitively calls into question the ideal on an ever-closer union of Europe.

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ment should be made considering a broad array of factors, including the sensitivity of the Member State and the society it represents towards a spe‐ cific matter at a given moment. But of course, if this ends up with excep‐ tions to the rule (i.e., refusing cooperation) being the rule, the whole inte‐ gration project will be jeopardized. All in all, what this suggests is that the equation of mutual recognition plus approximation of procedural rules and standards is not a convincing one and therefore unlikely to promote a pro-cooperation/pro-integration attitude in the national actors. As a consequence, other possibilities (which are already known)106 are to be exploited, to work less in the abstract and rather at the practical level, depending on the specific circumstances of a case; for instance communication between the authorities involved. (E) Judicial Cooperation in Civil Matters: A Comparison (1) Articles 81, 82 TFUE (a) A Divergent Wording As pointed out in the Introduction, according to many voices it would be plausible to apply the experience gained in the field of judicial cooperation concerning criminal matters to the civil realm also. However, just looking at the wording of the main legal texts reveals significant divergence. Whereas mention is made to approximation in criminal matters in Art. 67 TFEU, there is none in relation to civil matters (see para. 4 “The Union shall facilitate access to justice, in particular through the principle of mu‐ tual recognition of judicial and extrajudicial decisions in civil matters”). Indeed, approximation is alluded to in Art. 81.1, but in a nuanced form compared to the reference related to criminal cooperation: while Art. 82.1 reads “Judicial cooperation in criminal matters in the Union (…) shall in‐ clude the approximation of the laws and regulations of the Member States in the areas referred to in paragraph 2 and in Article 83”, Art. 81.1 pro‐ vides that “The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recog‐ nition of judgments and of decisions in extrajudicial cases. Such coopera‐

106 See above, at the end of the Introduction.

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tion may include the adoption of measures for the approximation of the laws and regulations of the Member States”. In a similar vein, Art. 82.2 foresees that “To the extent necessary to fa‐ cilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimen‐ sion, the European Parliament and the Council may, by means of directives adopted in accordance with the ordinary legislative procedure, establish minimum rules (…)”. In contrast, Art. 81.2, lit. f mandate is more limited: in order to develop judicial cooperation in civil matters having cross-bor‐ der implications measures shall be adopted aimed at “(…) the elimination of 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”. (b) Relevant Divergences Undeniably, some of the differences are weightier than others. Some may even not exist: for instance, the lack of reference to the taking into account the differences between the legal traditions and systems of the Member States for judicial civil cooperation, as it is arguably provided for by Art. 67.1. More relevant are the dissimilar forms regarding the matters that quali‐ fy for judicial cooperation (with “cross-border dimension”, for criminal matters, and with “cross-border implications” for civil matters). The re‐ quirement of a “cross-border dimension” has been interpreted as having a broader meaning than a “cross-border implication”, which would imply a connection to an EU cross-border proceedings;107 on the contrary, approx‐ imation for the purposes of cooperation in criminal matters does not need

107 The requirement may prove to leave important gaps in procedural protection, as there are civil cases where the cross-border implications do not exist at the begin‐ ning but appear subsequently. An example is provided by a complaint received by the European Commission with respect to Article 19 of the Service Regulation by German citizens living in Portugal who had not been able to defend them‐ selves in proceedings instituted against them in Germany following a lack of ser‐ vice of the document instituting proceedings on them. The procedural safeguards of the right of defence set out in Article 19 of the Service Regulation could not be applied in the case at hand because the precondition for its application as defined by national law (“the writ of summons had to be served from one Member State

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to be restricted in such a way.108 As a matter of fact the directives on pro‐ cedural guarantees apply to domestic cases as well. Finally, the use of different modal verbs for each area (“shall include the approximation of the laws” for cooperation in criminal matters, versus “may include the adoption of measures for the approximation of the laws” for cooperation in civil matters) is noteworthy. Actually, approximation is not frequent in the area of judicial cooperation in civil matters under Art. 81 TFEU. The European instruments adopted following this provision operate rather on the basis of mutual recognition combined with limits in the form of grounds for non-recognition/exequatur/enforcement, without prior harmonization.109 From the very beginning (the Brussels Convention 1968) the instruments for judicial cooperation in civil matters provided for such grounds, conceived as mandatory,110 and included among them the protection of fundamental rights, procedural and substantive alike, either specifically (Art. 27.2 Convention, replicated – albeit slightly differentlyin the Brussels I and Brussels I bis regulations) and/or embedded in an ex‐ press public policy exception (Art. 27.1 Convention, replicated in the Brussels I and Brussels I bis regulations). In this way, mutual recognition could work as a principal tool for integration without putting at risk the rights of the individual.

to another”) was initially not fulfilled. Source: Tender Specifications Attached to The Invitation to Tender JUST/2014/RCON/PR/CIVI/0082, at 7. 108 It may even be impossible to make it, if only because the cross-border condition applies both to the approximation of procedural and of substantive criminal law, and it is difficult to see “how the Union’s power to harmonize substantive crimi‐ nal law was intended to be limited to cases where an alleged offence has factual links to more than one Member State”: S. Peers, supra n. 11, at 670-671. 109 Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, as well as Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure, provide for minimum standards regarding service. However, they are not meant to replace the national rules; and Member States are not obliged to adopt them, see recital 19 of the EEO: “This Regulation does not imply an obligation for the Member States to adapt their national legislation to the minimum procedural standards set out herein. It provides an incentive to that end by making available a more efficient and rapid enforceability of judgments in other Member States only if those minimum standards are met”. 110 Although in fact they will come into play without a positive action (appeal) of the person against whom recognition or enforcement is sought, see below.

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The CJEU case law has underpinned this policy by interpreting the or‐ dre public clause broadly so as to cover procedural rights beyond service of process, as well as the (manifest) breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought, or of a right recognised as being fundamental within that legal order111 Also, in contrast to the case law we’ve seen above on the EAW, in civil matters the CJEU has expressly referred to the constitutional traditions of the Member State as a part of public policy, and declared that it is not for it to define the contents of the exception.112 This does not mean that the Court has always been generous regarding procedural rights in civil matters.113 On the contrary, in the name of mutual trust, which has become a standard for interpretation, it has sacrificed aspects of Art. 6 ECHR preferring a lit‐ eral application of the provisions to a flexible reading in disputes on patri‐ monial matters; in family matters no place has been left for any discussion in the framework of decisions certified according to Art. 41 and 42 of the Brussels II bis Regulation.114 (2) Conceptual Bases. The Role of the Individual The contrasting verbal forms in Arts. 81 and 82 TFUE may be explained by the disparity of the conceptual basis underlying judicial cooperation in criminal matters on the one hand, and in civil matters on the other. Diver‐ gence regarding the essential principles of each legal area offers some jus‐ tification as well.115 In criminal matters cooperation by way of mutual trust is required to fight delinquency and to preserve public safety and social peace. The pro‐

111 As stated in case C-7/98, Krombach, ECLI:EU:C:2000:164, para. 37. 112 Starting with case C-7/98, Krombach, ECLI:EU:C:2000:164, para. 21-23. 113 See D. Leczykiewicz, Human Rights and the Area of Freedom, Security and Jus‐ tice: Immigration, Criminal Justice and Judicial Cooperation in Civil Matters, Le‐ gal Research Paper Series, University of Oxford, Paper 1, January 2016. 114 The best examples remain the well-known case C-116/02, Gasser, ECLI:EU:C:2003:657, for patrimonial matters, and case C-491/10 PPU, Aguirre Zarraga, ECLI:EU:C:2010:828, for family matters. 115 The assertions made in this section, especially those regarding the interests at stake and the role of the parties in civil litigation, are deliberately extreme for the sake of highlighting the differences with the criminal setting. They should there‐ fore be read in this context.

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motion of procedural rights and access to justice is not the primary con‐ cern; the individual right to a due process acts as a limit on the expansion of the punitive power of a State beyond its borders. In contrast, civil judi‐ cial cooperation tends to facilitate access to justice in order to satisfy pri‐ vate interests also in cross-border cases; an easier access to justice encour‐ ages (allegedly) cross-border movement and therefore integration. In other words: in the triad freedom / security / justice, one or other value stands out over the rest depending on the area under consideration. A step beyond classical legal assistance, cross-border cooperation in criminal matters is perceived as the only way to fight against forms of delinquency which would otherwise remain unpunished. Within the framework of the EU the necessity to create a security area was felt as more pressing than ever after the events of September 11. To be sure, no one disputed that the European area could not be built at the expense of other concerns, among which the rights of suspected or accused persons. Nevertheless, it still took some time until the defence of the rights of the individual materialized in the form of legal rules. Whereas judicial cooperation in criminal matters began in support of a public interest and incorporated the individual rights approach at a second stage, cooperation in civil matters always had the individual in mind. “Mutual trust” refers traditionally to the trust States accord to each other, and not to the individual trusting the system; nevertheless, the fact remains that the individual is the user of the system and the one setting it into mo‐ tion. The goal of civil cooperation is to ease access to justice for private persons in cross-border cases to be able to enforce their private rights – i.e., the creation of a European area of justice. Access to justice matters for three reasons: first, it works as an essential element to ensure a genuine area of freedom, be it of movement or of exchanges, for the enforcement of contracts (and more generally, of decisions) in non-purely-domestic dis‐ putes. Secondly, access to justice is a fundamental right in a context which declares itself as adhering to the rule of law.116 Finally, litigation is a tool

116 G. Wagner, “Harmonization of Civil Procedure – Policy Perspectives”, electronic copy available at http://ssrn.com/abstract=1777233, also in X. Kramer and R. van Rhee, Civil Litigation in a Globalised World, Springer, 2012; Weller, supra n. 7, at 90. Z. Vernadaki, EU Civil Procedure and Access to Justice after the Lisbon Treaty, PhD thesis, 2013, as well as “Harmonization in the EU: Unravelling the Policy Considerations”, 9 Journal of Contemporary European Research (2012)

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for boosting the promotion of rules and values in a democratic setting; there is an interest in people not refraining from litigation.117 Indeed, integration helps remove the territorial limits traditionally im‐ posed on the coercive power of the States over individuals in civil and criminal matters alike – against the accused or suspected person in crimi‐ nal matters, against the judgement debtor or the person against whom en‐ forcement is required in the area of civil judicial cooperation. The Mem‐ ber State of origin borrows the enforcing mechanism from the Member State of reception. However, in civil matters it only does so upon the re‐ quest of a private person and for that individual’s personal interest (the so‐ cietal benefit is reached indirectly by the fact that the Law is enforced). More generally, the nature of the actors involved in civil litigation as well as of the interests at stake allows judicial cooperation in civil matters to work differently from that in criminal matters. In civil matters the main players are not a “weak” individual facing a “strong” State but two equal individuals, who enter a cross-border relation (ideally) conscious of the risks linked to internationality. They do so voluntarily (they have the liber‐ ty to refrain from doing so) to enhance their private interests; and legiti‐ mately (“bad” forum shopping or the will to avoid compulsory rules of a Member State is not presumed). Once there they enjoy the possibility to choose how and where disputes may be settled (whether before a court, or an ADR; in the first case, in which country), as well as the applicable law; and they can bargain with these issues, showing and implementing their preferences. Hence, each party bears the risk of a wrong election – i.e., choosing a jurisdiction which provides for lower procedural protection than others. It is also consistent with this approach that the individual con‐ cerned bears the burden to argue in one Member State the violation of his/her fundamental rights by the authorities of another Member State by bringing an appeal against the decision to recognize/enforce it in the first

297, refers to harmonization as key for the enforcement of European-conferred rights. 117 On the idea of litigation as a way to participate in government processes for the allocation of private values see O. Haazen, Between and Right and a Wrong. Or‐ dinary Cases, Civil Procedure and Democracy, E.M. Meijers Institut, 2015. In a similar line, H. Grabbe and S. Lehne, “Emotional Intelligence for EU Democra‐ cy”, Paper, January 2015 (to be found at CarnegieEurope.eu, last visited 20.2.2016), at 2-3, connect the citizen’s trust in Europe with a widened access to justice.

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Member State.118 A large scope for mutual recognition without approxi‐ mation of procedural rights is the consequence, together with a de facto greater tolerance to it and to the failures of the system, as the case may be.119 (3) Nuances Of course, the situation is neither as clear, nor always, as depicted. Not all areas where judicial cooperation in civil matters is sought are similar. Some are governed by a public interest akin to the ones at stake in the case of judicial cooperation for criminal matters, and therefore call for a similar approach. International child abduction is the prototype: the system built by Regulation Brussels II bis works for the interest of the child in the ab‐ stract (as opposed to the interest of a particular child), tending to prevent and deter child abduction from occurring and to quash any possible advan‐ tage that an abducting parent could get from abusing the system. The mechanism of an automatic enforcement of the decision rendered in the State of origin of the child without any possibility of defence in the re‐ quested Member State (Arts. 41, 42 Brussels II bis) may well serve the purpose of depriving the abducting parent of the benefits of his/her act; but it will only be acceptable if the rights of the parties are preserved, starting with the right to be heard.120 A common understanding of the rights of the parties (in particular, of the child)121 is mandatory here. Inter‐ estingly, this area already provides an example of recourse to tools other than mutual recognition or approximation to facilitate the cross-border cir‐

118 This was the rule under the Regulation Brussels I; under Regulation Brussels I bis the judgment debtor must lodge a claim for non-enforcement on the grounds provided by the regulation itself. Whether a check of the grounds is to be per‐ formed ex officio or not once the defendant has appealed may be disputed. 119 Meaning cases where the rights of a specific individual are actually sacrificed for the sake of the system and European integration. 120 As shown by cases before the CJEU, such as case C-491/10, ECLI:EU:C:2010:828, and case C-211/10, ECLI:EU:C:2010:400, and also before the ECtHR. From 2000 to 2015 more than 50 applications have been lodged be‐ fore the ECtHR against EU Member States (or, at the time of the application, tobe Member States) related to child abduction. 121 Member States differ as to the definition of “child”, the modes of hearing, and persons that should be present.

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culation of judicial decisions in civil matters, with some resemblance to those in use for cooperation in criminal matters: mutual recognition plus cooperation between the authorities involved in the specific case of inter‐ national child abduction.122 Approximation may not be strictly needed, but remain advisable, for opportunity reasons (and again, it can be argued that some lessons may be drawn from the experience of judicial cooperation in criminal matters: see below). Reasoning in terms of promoting integration, there are some evi‐ dent advantages inherent to approximation: it creates more legal certainty, with less information costs, hence it helps diminish the deterrent effect of the cross-border nature of a transaction or litigation. But beyond this, common rules or standards help guarantee an effective protection of rights.123 In civil litigation in a democratic society both the claimant and the defendant have a right to due process and a convenient balance has to be met for the procedure to be fair. Neither mutual recogni‐ tion nor integration removes the need for that balance; in other words, they do not, or should not, operate at the expense of the rights of one of the par‐ ties to the dispute. It is for the State to take care and set the normative framework in which this balance can be secured: for instance, by negotiat‐ ing a basic legal background of fundamental rights within the EU. It is one thing to leave to the judgment debtor (the party against whom recognition/ enforcement is sought) the task of defending himself by raising grounds of non-recognition (or creating the possibility for the grounds for non-recog‐ nition to be raised), and another to abandon entirely the State function to protect and promote the fundamental rights of those under its jurisdiction. Arguments derived from the current political environment also speak in favour of approximation. Candidates to EU membership are asked to com‐ ply with some democratic requirements before entering the EU. When be‐

122 See art. 11 Regulation Brussels II bis, and also the “Lignes de conduite émer‐ gentes relatives au développement du réseau international de juges de La Haye et principes généraux relatifs aux communications judiciaires, y compris les garanties communément acceptées pour les communications judiciaires directes dans des affaires particulières, dans le contexte du réseau international de juges de La Haye”. Document préliminaire No 3 A révisé d’avril 2012 à l’intention de la Commission spéciale de juin 2011 sur le fonctionnement pratique de la Con‐ vention Enlèvement d’enfants de 1980 et de la Convention Protection des enfants de 1996, http://www.ejtn.net/PageFiles/6333/Reseau_International_JugesDeLa‐ Haye_FR.pdf. (last visited 20.2.2016). 123 See supra n. 95 and the accompanying text.

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coming a Member State, they are presumed to work both according to democratic standards and to possess a systemic capacity to protect the fun‐ damental rights linked to them. The case law of the ECtHR shows that this is not always true; States’ failures may occur sporadically, but they can also be systemic.124 Although the situation described is not new, it is perceived more acutely nowadays: in the first place because it is objectively real, as proved by the Commission’s Decisions on a mechanism for co-operation and verification of progress for Bulgaria and Romania in relation to the judicial reform and the fight against corruption.125 Secondly, more and more public instru‐ ments (CEPEJ, Scoreboard) are shedding light on the performance of the judiciary in the different countries, thus allowing the rest to draw their conclusions in terms of which Member States are to be trusted and which are not. In the light of recent political developments in some European Member States it may even be that they no longer agree on the subject of individual fundamental rights, with differences even at the level of their basic under‐ lying convictions: in other words, what the core fundamental rights are. As previously noted, fundamental rights have always been relative concepts, always balanced against other fundamental rights, the fundamental rights of others, and other values and goods. Hence, the current problem in terms of judicial cooperation may not be, or not only be, the lack of systemic ca‐ pacity to ensure the protection of fundamental rights, but may go deeper, touching upon the essentials. (4) How, How Much As we have seen in the field of judicial cooperation for criminal matters, the relevant decision to be made is not “approximation: yes or no?”, but rather, to what extent and how to articulate it.126 That it can only be a min‐

124 Recent hints from the ECtHR relating to Art. 6 ECHR are for instance López Guió v. Slovakia, app. 10280/12; Frisancho v. Eslovaquia, app. 313/13; Hoholm v. Eslovaquia, app. 35632/13. 125 OJ 2006, L 354. 126 The answers to these questions may of course weigh on the answer to the logical precedent one – whether to approximate or not may be dependent on the degree and scope of the approximation.

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imum approximation by way of directives127 is clear. Still, “minimum” has proved to be a flexible notion, covering sometimes only basic objectives, sometimes objectives and standards, and sometimes objectives and stan‐ dards and technical rules.128 Additionally, approximation has to be complemented by checks to en‐ sure that fundamental rights are respected. These checks could be per‐ formed at the issuing Member State, but also be shared and involve the re‐ quested Member State as well, especially if only a minimum protection is ensured by the common European rules, and especially where a judgment debtor deserves to be given a second chance to defend himself.129 In this context an idea, inspired by criminal judicial cooperation, would be that of an open-ended ground for non-recognition (meaning it is for the Member State to decide on its content), to work on an optional basis so as to allow the competent national authorities to decide whether the local preferences should prevail under the circumstances.130 Finally, the mutual recognition-approximation binomial in civil matters may benefit from other features of the model applied to criminal matters globally considered, i.e., incorporating further enhancing-trust devices. Actually, there are already examples of a refined cooperation among Member States which facilitate the cross-border circulation of judicial de‐ cisions in civil matters which bear some resemblance to tools in use for cooperation in criminal matters. This is the case of Art. 11 of Regulation 606/2013 on mutual recognition of protection measures in civil matters, providing for adjustment of the factual elements of a protection measure

127 Or soft-law, i.e., recommendations, to the extent that they are more and more drafted to resemble mandatory rules. 128 As evidenced by the operative parts of the three Directives on the protection of procedural rights of the accused and suspected persons. Actually, this is already the case of existing Directives for civil matters, see Directive 2013/11/EU, as pointed out by B. Hess, “Unionsrechtliche Synthese: Mindeststandardsund Ver‐ fahrensgrundsätze im acquis communnautaire/Schlussfolgerungen für European Principles of Common Procedure”, in M. Weller and C. Althammer (eds), Min‐ deststandards im europäischen Zivilprozessrecht, Mohr Siebeck, 2015, at 221. 129 For instance “weaker” parties, who may be in need of complementary protection in case of a wrong decision regarding jurisdiction. 130 See previous footnote. Another situation would be that of a close connection be‐ tween the case at hand and the requested Member State: an idea akin to the public policy exception being applied as “ordre public de proximité”, in Private interna‐ tional law. At any rate, it would still be for the party concerned to create the occa‐ sion for this condition to be examined by lodging an appeal against the exequatur.

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adopted in a Member State in order to give effect to it in another; the pro‐ vision follows Art. 9 of Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime. Another example (albeit in the framework of The Hague) may be the efforts already referred to to enhance communication among judges in cases of international child abduction.131 Interesting as well is Art. 27.1 b) of The Hague 1993 Con‐ vention of 29 May 1993 on Protection of Children and Co-operation in Respect of Intercountry Adoption: the consent of the parties, given in the country of recognition, will allow for an adoption granted in the State of origin, which does not have the effect of terminating a pre-existing legal parent-child relationship, to be converted into an adoption having such an effect in the receiving State.132 (F) Conclusion At first sight judicial cooperation within the EU may look like one and the same thing in both criminal and in civil matters. Actually, there are signifi‐ cant disparities between the two settings – as evidenced by the different wording of the respective provisions in the TFUE. The tools for integra‐ tion (mutual recognition, approximation, other tools), are used and com‐ bined differently; the scope and degree of the approximation achieved also differ; the protection of procedural rights provides an example. This does not exclude all possibilities of reciprocally learning pro fu‐ turo. The legislative process for judicial cooperation in criminal matters is quite new and dynamic, and many open questions remain to be settled: as things currently stand it is by no means certain that the instruments for ap‐ proximation will be enough to foster cooperation. Nonetheless, the on-go‐ ing debates in the field offer food for thought at a moment when the word “approximation” has reappeared in the lexicon of academia and institu‐ tions alike. Given the conceptual differences between civil and criminal

131 Supra, n. 122. 132 Although it relies on the parties’ will, to some extent this possibility recalls the duty the authorities have to comply with before applying ground for refusing recognition of a foreign order due to its incompleteness, in criminal matters. See for instance art. 10.1 (a) and 9 (4) Directive 2011/99/EU of the European Parlia‐ ment and of the Council of 13 December 2011 on the European protection order.

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litigation, added to the different goals of judicial cooperation in civil and in criminal matters, we have concluded that approximation of procedural rights is not a condition sine qua non for judicial cooperation to work rea‐ sonably well in cross-border settings concerning civil matters. We have also concluded, nevertheless, that it still makes sense in areas governed by a public interest akin to the ones at stake in the case of judicial coopera‐ tion for criminal matters; the more so if the protection for fundamental rights is entrusted exclusively to one of the Member States involved (usu‐ ally the Member State of origin, or the issuing Member State). For other civil matters approximation of rules and standards concerning procedural rights and safeguards may be advisable in the light of the cur‐ rent political, economic and social circumstances. Should approximation be chosen in civil matters, some hints could be borrowed from the area of criminal matters. For instance, regarding the process: the experience made for judicial approximation of procedural rights of accused and suspected persons speaks in favour of a step-by-step approach (as opposed to a glob‐ al one), following a thorough analysis of the underlying situation (which for criminal matters focused on the case law of the ECtHR). As for the outcome, the state of affairs in judicial cooperation in crimi‐ nal matters suggests that minimum standards and rules of procedural rights will be just a step along the path to an area of justice, security and freedom, and by no means the definitive solution. To overcome the resis‐ tance of the Member States a more sophisticated approach is required where different tools (mutual recognition with compulsory and optional grounds to refuse it, plus approximation combined with direct communi‐ cation among authorities and including the possibility to adjust the foreign measures along with other tools) combine to satisfy the specificities of the subject matter under consideration, “specificities” embracing the sensitivi‐ ties of the Member States at a given political moment. In any event, explicit approximation of standards or rules by way of EU legislation places the procedural and fundamental rights debate – which fundamental rights, what level of protection, which techniques to protect them – directly within the CJEU competence.133 To be sure, the interpreta‐ tion of the Court may, and does, not necessarily convince or please all. What it does, however, is to trigger the reaction of other main actors of the

133 It already happens indirectly through the interpretation of the EU instruments for procedural law.

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system (i.e., the judges: those who apply the system and preserve it) to spotlight the “no-go” points, as shown by the Order of the German Consti‐ tutional Court of December 15, 2015. To identify where disagreement lies is the starting point towards agreement and evolution, provided the players listen to each other.

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Harmonious Judicial Cooperation Through Harmonisation: (What) Can We Learn From Criminal Matters? Monique Hazelhorst Erasmus University Rotterdam

(A) Introduction1 In 1999, the European Council of Tampere placed the development of the European Union as an ‘Area of Freedom, Security and Justice’ at the top of the Union’s legislative agenda.2 The creation of this Area entails closer judicial cooperation between EU Member States in both civil and criminal matters. For civil matters, this means, “judgements and decisions should be respected and enforced throughout the Union, while safeguarding the basic legal certainty of people and economic operators", and “better com‐ patibility and more convergence between the legal systems of Member States must be achieved”.3 For the criminal field, it means “criminals must find no ways of exploiting differences in the judicial systems of Member States”.4 These quotes show how the three elements of freedom, security, and justice interact differently with each other in both of these fields. Accord‐ ing to the Tampere Conclusions, ‘freedom’ includes ‘the right to move freely throughout the Union’.5 However, it is clear that for criminal jus‐ tice, security is paramount, to the detriment of the individual’s freedom to move across borders; the many instruments adopted so far, such as the

1 This paper was adapted from a presentation given at the conference “From common rules to best practices in European civil procedure” held at Erasmus University Rot‐ terdam on 25-26 February 2016. This presentation was a discussion of the paper presented by Prof. Requejo Isidro, which is also included in this volume. 2 European Council, Tampere European Council, 15-16 October 1999, Presidency Conclusions, Introduction, available at http://www.europarl.europa.eu/summits/ tam_en.htm. 3 Tampere Conclusions, supra n. 2, no. 5. 4 Tampere Conclusions, supra n. 2, no. 5. 5 Tampere Conclusions, supra n. 2, no. 2.

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European Arrest Warrant,6 are aimed at curtailing the freedom of the indi‐ vidual in the interest of providing security for society as a whole. By con‐ trast, legislation in the civil sphere aims to improve the accessibility and reliability of justice for individuals, which in turn allows them to use their free movement rights more effectively. This difference in the meaning and the role of individual freedom in civil and criminal matters should be kept in mind when discussing the question of whether harmonisation is necessary, or even desirable, in ei‐ ther of these fields. In criminal matters, considerable effort has been made to harmonise procedural and substantive standards in order to protect the fundamental rights of the suspect. These standards aim to ensure that the individual’s freedom is not disproportionately or unjustifiably curtailed. They therefore serve to mitigate the effects of instruments on judicial co‐ operation, which limit an individual’s freedom. This paper discusses a number of aspects of the question as to whether harmonisation in criminal justice should serve as an example for the civil sphere. When we ask whether harmonisation in criminal matters can serve as a model for civil matters, where increased individual freedom is the objective, we should keep in mind the difference in the role of freedom in both fields, and con‐ sider the purpose for which harmonised rules are to be adopted. (B) Has Harmonisation in Criminal Justice Led to Harmonious Cooperation? As stated, increased cooperation in the field of criminal law in the interest of security has necessitated the increasing harmonisation of procedural standards. In the field of civil justice, improving access to justice has tak‐ en the shape of the abolition of obstacles, especially where it comes to the recognition and enforcement of civil judgements.7 EU Regulations in‐

6 Council Framework Decision 2002/584/JHA on the European arrest warrant and the surrender procedures between Member States, OJ 2002, L 190. 7 The objective of “abolition, pure and simple, of any checks on the foreign judgment by courts in the requested country” was expressed by Council Programme of mea‐ sures to implement the principle of mutual recognition of decisions in civil and commercial matters, OJ 2001, C 12/1, 5 sub A(2)(b). Most recently, this simplifica‐ tion of cross-border recognition and enforcement of civil judgements has taken the shape of abolition of the need for a declaration of enforceability (exequatur) under the Brussels I bis Regulation: Regulation (EU) No 1215/2012 of the European Par‐

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creasingly allow for the automatic enforcement across the EU of judge‐ ments within their scope, often with no refusal of enforcement being pos‐ sible.8 These differences can be explained by two factors: the role of mu‐ tual trust and the different role of party autonomy. This section discusses the first factor; the second is discussed in the next section. Cooperation in the field of civil justice was arguably already based on mutual trust before the European Union became involved. This is perfectly explained by Weller,9 who states that cooperation in the field of civil jus‐ tice has for a long time operated on the assumption that civil justice sys‐ tems, though not equal, can be considered equivalent to one another, so that the results achieved in each justice system can be assumed to be with‐ in a margin of acceptability.10 In the field of criminal law, such a level of mutual trust did not yet exist, due to the links between criminal law and notions of national sovereignty and identity.11 This necessitated a higher level of approximation of standards in the field of criminal justice, where‐ as this has so far not been achieved in the field of civil justice. It seems

liament and of the Council of 12 December 2012 on Jurisdiction and the Recogni‐ tion and Enforcement of Judgments in Civil and Commercial Matters (recast) OJ L 351/1. See for an appraisal of its effects P. Hovaguimian, “The enforcement of for‐ eign judgments under Brussels I bis: false alarms and real concerns”, 11 J Priv Int L (2015) 212. 8 For civil judgements, the Maintenance Regulation, the European Order for Pay‐ ment Procedure, the European Small Claims Procedure, and the European En‐ forcement Order all allow for automatic enforcement of judgements without the possibility of invoking grounds for refusal. Council Regulation (EC) 4/2009 of 18 December 2009 on jurisdiction, applicable law, recognition and enforcement of decisions, and cooperation in matters relating to maintenance obligations, OJ 2009, L7; Regulation (EC) No 861/2007 establishing a European Small Claims Procedure, OJ 2007, L 199; Regulation (EC) No 1896/2006 creating a European order for payment procedure, OJ 2006, L 399; Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, OJ 2004, L 143. 9 M. Weller, “Mutual trust: in search of the future of European Union private inter‐ national law”, 11 J Priv Int L (2015) 64, at 73. 10 Weller, supra n. 9, at 72. 11 See for instance Thunberg Schunke, who posits: "There has been little action with‐ in the EU to provide guidance and interpretation of mutual trust or to build a natu‐ ral basis for its application", M. Thunberg Schunke, Whose Responsibility? A Study of Transnational Defence Rights and Mutual Recognition of Judicial Deci‐ sions within the EU, Intersentia, 2013, at 95.

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that in the field of civil justice harmonisation has not been considered nec‐ essary for harmonious cooperation. It can be questioned whether this approximation in the field of criminal justice has indeed led to harmonious cooperation. Harmonisation is often used to remove any possibility for confusion or inconsistency among the Member States, or to close gaps in existing legislation.12 It is doubtful whether this guarantees faithful application. An example is the Framework Decision on the European Arrest Warrant (FD EAW). European Arrest Warrants issued on the basis of this Framework Decision must, on the ba‐ sis of mutual recognition, be executed by other Member States, unless one of the limited grounds for refusal of execution applies. The limits of these refusal grounds have been subject to debate, and questions as to their com‐ patibility with national conceptions of fundamental rights have repeatedly reached the CJEU.13 One such question is whether Member States can refuse to execute EAWs issued with the purpose of executing a sentence imposed without the person concerned being present at the trial (in absen‐ tia). The original FD EAW allowed Member States to refuse to execute such EAWs, but only if the person concerned had not been summoned or otherwise been aware of the date and time of the trial. In Spain, the Con‐ stitutional Court however considered unconstitutional the execution of the EAW, rendered for the purpose of executing a sentence imposed in absen‐ tia, unless the availability of a retrial could be guaranteed.14 Execution of such an EAW would be contrary to the Spanish Constitution regardless of whether the person concerned had been present at the trial. The reasoning was that the right to participate in the oral trial and the right to one’s own defence are, under Spanish constitutional law, seen as part of the ‘absolute content’ of the right to a fair trial.15 The surrender of a person to another country where the ‘absolute content’ of a fundamental right is not respect‐

12 E. Storskrubb, “Mutual Recognition as a Governance Strategy for Civil Justice”, in B. Hess, M. Bergström and E. Storskrubb (eds), EU Civil Justice. Current Is‐ sues and Future Outlook, Hart, 2016, at 301. 13 Aside from the Melloni judgement discussed below, among others CJEU, case C-303/05, Advocaten voor de Wereld, ECLI:EU:C:2007:261, and more recently CJEU, joined cases C-404/15 and C-659/15 PPU, Pál Aranyosi and Robert Căldăraru, ECLI:EU:C:2016:198. 14 Spanish Constitutional Court, judgement of 28 September 2009, STC 199/2009, para. 3. 15 A. Torres Pérez, “Spanish Constitutional Court, Constitutional Dialogue on the European Arrest Warrant: the Spanish Constitutional Court Knocking on Luxem‐

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ed would therefore amount to a violation of the Spanish Constitution. This outcome clearly contravened EU law, as the FD EAW did not allow for refusal of execution on these grounds.16 In 2009, Framework Decision 2009/299 amended the FD EAW. Frame‐ work Decision 2009/299 was introduced to clarify the circumstances in which execution could be refused. It lay down very specifically the condi‐ tions that justify a refusal to execute an EAW rendered for the purpose of executing a sentence imposed in absentia. In essence, courts can only refuse execution of such an EAW if the person concerned did not know or could not have known about the trial. It excludes situations where the per‐ son was summoned to appear but did not do so despite understanding the consequences, or in which the person was not present but represented at the trial by a lawyer instructed by him. Once again, a case involving the execution of an EAW of a person con‐ victed in absentia reached the Spanish Constitutional Court. In the Mel‐ loni17 case, the Spanish authorities received an EAW, issued in Italy for the purpose of arresting Mr Melloni. Mr Melloni had been convicted in Italy for bankruptcy fraud without him being present, though he had been represented by lawyers instructed by him. These facts were almost identi‐ cal to those of the earlier case discussed above. It was quite clear that FD 2009/299 did not allow execution of an EAW to be refused if the person sentenced in absentia had been represented by lawyers instructed by him.18 The Spanish Constitutional Court nevertheless asked whether it could refuse enforcement of the EAW if it could not be guaranteed that Mr Mel‐ loni could apply for a retrial in Italy, during which the original conviction could be overturned. This time, the Constitutional Court invoked Article 53 of the EU Charter on Fundamental Rights.19 However, Framework De‐

16 17 18

19

bourg's Door; Spanish Constitutional Court, Order of 9 June 2011, ATC 86/2011”, 8 EuConst (2012) 105, at 108. Torres Pérez, supra n. 15, at 108-109. CJEU, case C-399/11, Stefano Melloni v. Ministerio Fiscal, ECLI:EU:C:2013:107. Council Framework Decision 2009/299/JHA of 26 February 2009 amending Framework Decisions 2002/584/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA and 2008/947/JHA, thereby enhancing the procedural rights of per‐ sons and fostering the application of the principle of mutual recognition to deci‐ sions rendered in the absence of the person concerned at the trial, OJ 2009, L 81. CJEU, case C-399/11, Stefano Melloni v. Ministerio Fiscal, ECLI:EU:C:2013:107, para. 26.

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cision 2009/299 does not allow courts to make the execution of an EAW dependent on the existence of such a possibility. The CJEU therefore an‐ swered the Spanish Constitutional Court’s question in the negative. It ruled that, though Article 53 of the Charter allows Member States to up‐ hold domestic fundamental rights standards in the application of EU law, this does not allow them to diverge from exhaustively harmonised EU rules, as this would diminish the effectiveness of those rules.20 Melloni is highly important from a constitutional perspective, but it is discussed here because it illustrates the point made earlier that extensive harmonisation does not guarantee faithful application of EU rules. The Framework Decision on the European Arrest Warrant and Framework De‐ cision 2009/299 together contain a number of extensively harmonised rules that are intended to rule out any confusion as to when execution of an EAW can be refused. In spite of this, the inherent conflict of these rules with Spanish constitutional law led to at least two protracted sets of pro‐ ceedings, one of which resulted in a decision that clearly violated EU law. In the second case, the CJEU was able to intervene, but only after an ex‐ tensive legal procedure. The CJEU was criticised for not engaging in a constructive constitutional dialogue with the Spanish Constitutional Court.21 At the same time, criticism can of course be levelled at the Span‐ ish Constitutional Court for not seeking a preliminary ruling in the first case, and for entertaining Mr Melloni’s complaint in the second. It is no secret that some constitutional courts are reluctant to make references to the CJEU for fear of losing autonomy.22 Of course, a failure to request a preliminary ruling where one is neces‐ sary is a violation of a EU law,23 and may even constitute a violation of the litigant’s right to a fair trial.24 But the point is that, no matter how many legal remedies are available, what is wanted is surely for EU rules to be faithfully applied in the first place. The rules on execution of European Arrest Warrants rendered for the purpose of executing sentences imposed

20 CJEU, case C-399/11, Stefano Melloni v. Ministerio Fiscal, ECLI:EU:C:2013:107, para. 62-63. 21 M. De Visser, “National Constitutional Courts, the Court of Justice and the Protec‐ tion of Fundamental Rights in a post-Charter landscape”, 15 Human Rights Rev (2014) 39, at 46-47. 22 Torres Pérez, supra n. 15, at 119. 23 CJEU, case C-77/83, CILFIT, ECLI:EU:C:1984:91. 24 ECtHR, Dhahbi v. Italy, app. 17120/09, para. 33.

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in absentia were designed to be applied with as little scope for confusion as possible. Despite their clarity, however, they were twice questioned for their incompatibility with Spanish constitutional law. The point here is not so much about the compatibility of Spanish constitutional law with EU law; the point is that Spanish courts were, in practice, reluctant to apply EU legislation because it did not conform to constitutional traditions. European Union legislation is dependent on Member States for its imple‐ mentation and application. It has to function within their legal and consti‐ tutional traditions. Especially in a field as sensitive and as dominated by national sovereignty as criminal law, this will always be a challenge. No matter how clearly defined and exhaustively harmonised the rules are, ef‐ fective application relies on the loyalty of Member States. This argument arguably also applies the other way around: namely, if loyal cooperation can be assumed, extensive harmonisation may be unnec‐ essary. As Weller has shown, mutual trust is, and has long been, the stan‐ dard mode of cooperation in civil matters, as opposed to the criminal field, where cooperation has traditionally been seen as a favour rather than an obligation, and where national sovereignty and national moral conceptions play a stronger role. In criminal matters, harmonisation may be required to create trust and to smooth out certain differences. Compared to the current situation, where trust already exists, harmonisation may not only be un‐ necessary but may in fact increase the possibilities for misunderstanding and misinterpretation. I would suggest that criminal justice legislation teaches us that effective mechanisms for cooperation and communication between courts, as well as effective implementation of legislation, are perhaps more effective and less invasive ways of achieving harmonious cooperation than an extensive approximation of standards. (C) The Civil Justice Paradigm and the Role of Party Autonomy The second factor that explains the differences in approach between crimi‐ nal and civil justice is the role of party autonomy. Perhaps harmonisation in civil cases would be unnecessary or even counterproductive, because when we assume that civil parties enter into legal relationships voluntarily and consciously, they might even profit from differences between legal systems. Outside of harmful practices such as torpedo actions and forum shopping, freedom of choice − in terms of with whom to do business, at 125

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which court to bring a dispute, and which law to apply to a contract − gen‐ erally benefits private parties. This paradigm arguably does not apply to certain legal relationships. One clear example is that of child abduction cases, where parents should not be allowed to exploit differences between the law and the legal culture of Member States to prevent an abducted child being returned to his or her home. I would wonder whether there are more types of civil cases that also do not fit the paradigm. I would point primarily to business-to-con‐ sumer cases, in which consumers have little or no control over their con‐ tract terms, and hence have little choice as to how and where to litigate. To compensate for this disparity in power and information, the consumer en‐ joys protection under the existing Regulations, primarily by means of spe‐ cial jurisdiction rules that benefit the consumer.25 We can, however, question whether, even in the presence of these rules, the current move towards greater efficiency in cross-border litigation does not primarily benefit businesses and lawyers. The Commission’s recent Report on the functioning of the European Order for Payment Procedure showed that the procedure is used primarily by businesses and lawyers, whereas awareness of the procedure is only at 6% among citizens.26 By contrast, the European Small Claims Procedure, which is aimed at consumers, has seldom been used. In a Study for the European Parliament on the European Small Claims Procedure, Cortes noted a number of prob‐ lems.27 The fact that the Procedure aims at self-representation may affect the equality of arms between the parties, and the lack of awareness of the Procedure and lack of transparency concerning costs and duration were seen as a problem. Professor Cortes concluded: “EU citizens still find the procedure too complicated and they do not feel confident to start it on their own”.28

25 Most importantly, Section 4 of Chapter II of Regulation 1215/2012 (the Brussels Ibis Regulation). 26 European Commission, Report from the European Commission to the European Parliament, the Council and the European Economic and Social Committee on the Application of Regulation (EC) 1896/2006 of the European Parliament and the Council creating a European Order for Payment Procedure, COM(2015) 495 final, p. 4. 27 P. Cortes, The European Small Claims Procedure and the Commission Proposal of 19 November 2013. In-depth analysis, European Parliament, 2015. 28 Cortes, supra n. 27, at 10.

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I would suggest that findings on the functioning of the ESCP and EOP procedures lead to the conclusion that perhaps civil justice does in some respects resemble the paradigm of criminal justice. In this sense, perhaps we can learn from criminal justice. (D) Minimum Standards as Maximum Standards Another potential risk associated with harmonisation, which also follows from Melloni, is that of harmonised standards becoming maximum stan‐ dards. It is understandable that when mutual recognition relies on common rules, these rules must be interpreted and applied by the Member States’ courts in accordance with the principle of effectiveness. Effectiveness would be undermined if Member State courts were able to give certain procedural standards a wider interpretation than intended. Though this is correct in principle, it does place a great deal of trust in the legislator. Once rules are fully harmonised, there is no way back. The CJEU has made it abundantly clear that it does not allow Member States to diverge from mutual recognition on the basis of national fundamental rights. This is the clear message of the Melloni judgement. For some Member States, this means that in the context of the application of EU leg‐ islation they have to apply standards that are lower than their own. Whereas one could say that this is a logical outcome of the legislative process in the EU, it becomes more problematic when it is considered that the Court of Justice has also proved reluctant to review the application of mutual recognition for its conformity with the Charter and the European Convention on Human Rights. Apart from the judgement in Melloni, the judgement in Advocaten voor de Wereld29 shows this reluctance. This judgement concerned the legality of the abolition of the requirement of double criminality in the context of the European Arrest Warrant. In a rea‐ soning that has been called “disappointing in its brevity”,30 “very lacon‐

29 CJEU, case C-303/05, Advocaten voor de Wereld, ECLI:EU:C:2007:261. 30 H. Raulus, “The Charter of Fundamental Rights as a set of constitutional princi‐ ples”, in M. Trybus and L. Rubini (eds), The Treaty of Lisbon and the future of European law and policy, Edward Elgar, 2012, at 194.

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ic”,31 and referred to as making “little effort to engage with its national counterparts”,32 the CJEU quickly dispensed with the argument that this abolition was contrary to the principle of legality of criminal offences and penalties. The Court’s reluctance to allow exceptions to mutual recognition is, however, best exemplified by the Court’s opinion on the Draft Agreement on the Accession of the EU to the European Convention. In this Opinion 2/13,33 as one of its reasons for considering the Agreement incompatible with the autonomy of EU law, the Court of Justice specifically cited the perceived risk that mutual recognition would be undermined by accession of the EU to the ECHR.34 It stated that the Accession Agreement failed to take into account that EU Member States have, as part of their EU Mem‐ bership, accepted that they would at times be required to presume that oth‐ er Member States had adequately observed fundamental rights.35 Accord‐ ing to the Court of Justice, accession would upset the balance created by mutual recognition. It is interesting to observe that the balance between mutual recognition and Member States’ fundamental rights obligations is such a sensitive is‐ sue that the risk of it being upset by the EU’s accession was found to be a reason to advise against accession. It is doubtful whether the CJEU’s ob‐ jections are valid.36 Firstly, Article 53 ECHR only allows Contracting Par‐ ties to apply higher standards than those proscribed by the ECHR; it never obliges them to apply such standards. The CJEU’s first argument seems therefore to be based on a misinterpretation of Article 53. Secondly, if in‐ deed the ECtHR were to find certain instances of the operation of mutual recognition incompatible with provisions of the ECHR, then this is simply inherent to the external control that accession is intended to achieve. If the

31 A. Albi, “From the Banana Saga to a Sugar Saga and Beyond: Could the PostCommunist Constitutional Courts Teach the EU a Lesson in the Rule of Law?”, 47 CMLR (2010) 791, at 825. 32 D. Sarmiento, “European Union: the European arrest warrant and the quest for constitutional coherence”, 6 ICON (2008) 171. 33 CJEU, Opinion 2/13 of the Court (Full Court) of 18 December 2014, ECLI:EU:C:2014:2454. 34 Opinion 2/13, supra n. 33, para. 191-194. 35 Opinion 2/13, supra n. 33, para. 189. 36 See also J. Krommendijk, M.P. Beijer and J.W.C. Van Rossem, “EHRC 2015/65 HvJ EU, 18-12-2014, Advies 2/13”, European Human Rights Cases 2015/65, paras. 7-11.

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EU accedes, it is with the purpose of opening itself up to external scrutiny as to the compatibility of EU actions with fundamental rights. It is incom‐ patible with that purpose to require that the risk that certain instruments might be found incompatible with the ECHR be excluded from the outset. It is clear from this element of Opinion 2/13 that the CJEU is not prepared to jeopardise the functioning of mutual recognition in any way. In fact, it has been questioned whether after Opinion 2/13, and the case law on which it relies, the ECtHR can still hold, under the Bosphorus doctrine,37 that the EU offers ‘equivalent protection’ to the ECHR, given its near-ab‐ solute application of mutual recognition.38 This exemplifies, in my opinion, that as far as the European Court of Justice is concerned, mutual recognition supersedes the protection of fun‐ damental rights. Given this context, I would submit that in the field of civ‐ il law we should be careful not to harmonise too much too soon, given that in the view of the Court of Justice, common exhaustive rules become max‐ imum standards, whose compatibility with fundamental rights it is reluc‐ tant to review. (E) Enforcement of Standards This brings me to my final point, which Professor Requejo Isidro also mentions: namely, the enforcement of common standards. As discussed, instruments in the field of criminal law, such as the European Arrest War‐ rant, have increasingly abolished possibilities for control in the Member State, which is requested to enforce the Arrest Warrant. This reduction in control for the enforcing Member State bears many similarities to the abo‐ lition of grounds for refusal of recognition or enforcement in the field of civil justice. In this regard, I would suggest that even in the presence of harmonised procedural standards, a degree of host state control would need to remain. This is for the simple reason that the presence of adequate rules does not preclude a misapplication of misunderstanding of these

37 In its seminal Bosphorus judgement, the ECtHR allowed EU Member States to benefit from a "presumption of Convention compliance" when they implement EU law, on the basis that the EU’s system of fundamental rights protection can be con‐ sidered "equivalent" to that of the ECHR. EctHR, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, app. 45036/98. 38 N. Mole, “Can Bosphorus be maintained?”, 16 ERA Forum (2016) 467.

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rules. I would propose that in some situations, only in the Member State where enforcement is sought should review be an adequate remedy for failing to observe common norms, such as the right to a fair trial.39 In this regard, I would believe it possible to replace the public policy exception, as regards its procedural component, with a reference to the right to a fair trial, combined with a separate refusal ground for cases of procedural fraud. I would suggest that this would have the advantage of providing judgement debtors with a way of remedying violations of their right to a fair trial committed by the home state, while at the same time protecting the judgement creditor from the risk of enforcement being denied on the basis of an overly broad conception of public policy. (F) Conclusion This contribution has provided a number of brief observations and con‐ cerns regarding the need for, and desirability of, harmonisation as a way of ensuring harmonious cooperation, and whether the civil field can learn from the criminal field. These observations cannot, and are not intended to, do justice to the political and legal complexities of the interplay be‐ tween mutual recognition, harmonisation, national fundamental rights, and national ideas about what constitutes criminal behaviour and how it should be addressed. Rather, I have tried to highlight a number of recent develop‐ ments and trends in the field of EU criminal law that may help us to un‐ derstand some of the challenges associated with mutual recognition and harmonisation, and to determine how, if at all, these may play a role in the

39 As argued by many in the context of the recasting process of the Brussels I Regu‐ lation, among others M. De Cristofaro, “The abolition of exequatur proceedings: speeding up the free movement of judgments while preserving the rights of the de‐ fense”, 1 IJPL (2011) 432, at 451; P. Beaumont and E. Johnston, “Abolition of Ex‐ equatur in Brussels I: Is a Public Policy Defence Necessary for the Protection of Human Rights?”, 30 IPRax (2010) 105, at 106; H. Muir Watt, “Evidence of an Emergent European Legal Culture: Public Policy Requirements of Procedural Fairness under the Brussels and Lugano Conventions”, 36 Tex.Int'l L.J. (2001) 539, at 554; G. Cuniberti and I. Rueda, “Abolition of Exequatur: Addressing the Commission's Concerns”, 75 RabelsZ (2011) 287, at 312; X.E. Kramer, “Abolition of exequatur under the Brussels I Regulation: effecting and protecting rights in the European judicial area”, 29 Nederlands Internationaal Privaatrecht (2011) 633, at 640.

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civil sphere. As stated in the introduction, understanding the different starting points of criminal and civil law is key. In the criminal field, har‐ monisation was considered necessary to create the level of trust necessary for effective mutual recognition. In civil law, harmonisation should only be attempted insofar as necessary to supplement the already existing mu‐ tual trust, especially as highlighted in this paper considering the risks asso‐ ciated with harmonisation. The title of this paper questions not only what we can learn from expe‐ riences in EU criminal law but also whether we can learn from criminal law at all. This paper, as well as that by Professor Requejo Isidro, on which this paper comments, questions whether the two fields are not sim‐ ply incomparable due to the different underlying values. On this question I would like to conclude by stating that I believe we can learn from experi‐ ences in the criminal sphere, for the simple reason that whereas these fields may be clearly distinguishable in national legal systems, EU law makes no such distinction. The principles at issue, in particular the princi‐ ples of effectiveness of EU law and of respect for fundamental rights, ap‐ ply equally no matter what the domestic classification of a right or obliga‐ tion may be. Analysing the developments in EU criminal law, such as the CJEU’s judgements in Melloni, Advocaten voor de Wereld and Pál Aranyosi and Robert Căldăraru, is highly informative when it comes to understanding the possibilities and risks of judicial cooperation on the ba‐ sis of harmonised EU legislation, whether it be in civil or in criminal mat‐ ters.

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Harmonization of Civil Procedure: Is the United States a Model for the European Union? Christopher A. Whytock Professor of Law, University of California, Irvine

Summary: It is tempting to view the United States as a model for the har‐ monization of rules of civil procedure. This chapter argues that there may be lessons to learn from the US experience, but that there are reasons to be skeptical about the usefulness of the US model for efforts to harmonize the procedural rules of EU members. The rules of civil procedure are not as harmonized in the United States as commonly assumed. Judicial coop‐ eration in the United States is in any event based less on extensive harmo‐ nization than on a system of interjurisdictional deference made possible by the twin foundations of full faith and credit and minimum procedural stan‐ dards—foundations that do not yet appear to be sufficiently well de‐ veloped in the EU to make this model immediately workable there. Final‐ ly, for reasons of legal and political culture, the process of making rules of civil procedure in the United States is politicized, seemingly to a greater extent than in the EU. A more technical path toward procedural harmo‐ nization might be possible, and more desirable, in the EU. (A) Introduction The European Union has made important progress toward the harmoniza‐ tion of private international law.1 Some commentators, noting gaps, redun‐ dancies and incoherencies in EU private international law, argue that the time has come to codify the field.2 Even without a codification, the progress already made is impressive, particularly from the perspective of

1 X.E. Kramer, “Harmonisation of Civil Procedure and the Interaction with Private International Law”, in X.E. Kramer and C.H. van Rhee (eds), Civil Litigation in a Globalising World, T.M.C. Asser Press, 2012, 121, at 125. 2 G. Rühl and J. von Hein, “Towards a European Code on Private International Law?”, 79 RabelsZ (2015) 701.

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an observer in the United States, where important parts of private interna‐ tional law — including interstate and international choice of law, as well as the recognition and enforcement of foreign country judgments — re‐ main fragmented across the 50 states and the District of Columbia. Outside the realm of “civil matters having cross-border implications” (TFEU Article 81), however, the EU’s progress toward procedural harmo‐ nization has been more modest. There is no “genuine or uniform European law of civil procedure.”3 The EU’s procedural laws “never touch upon the heart of civil practice, i.e. the complicated and controversial topics of fact gathering, case management, judgments, appeals and interim relief”4 and, as a result, “purely national cases continue to be governed by the rules of civil procedure of the Member State where the case is brought.”5 For some observers, this is not a satisfactory situation. From the Storme Report in 1994, which “triggered the debate on the possibility and the pros and cons of procedural harmonisation,”6 to the European Law InstituteUNIDROIT project on “From Transnational Principles to European Rules of Civil Procedure,” and from scholarly conferences dealing with harmo‐ nization of European procedural law7 to the report of the European Parlia‐ mentary Research Service on the Europeanisation of civil procedure,8 there is now serious academic and policy discussion about the harmoniza‐ tion of European civil procedure. Hess9 argues that “there is a compelling need for a more coherent and systematic legislative approach” and that the

3 B. Hess, “Procedural Harmonization in European Context”, in X.E. Kramer and C.H. van Rhee (eds), Civil Litigation in a Globalising World, T.M.C. Asser Press, 2012, at 161; M. Eliantonio, “The Future of National Procedural Law in Europe: Harmonisation vs. Judge-made Standards in the Field of Administrative Justice”, 13 EJCL (2009) 1, at 2, http://www.ejcl.org/133/art133-4.pdf. 4 G. Wagner, “Harmonisation of Civil Procedure: Policy Perspectives”, in X.E. Kramer and C.H. van Rhee (eds), Civil Litigation in a Globalising World, T.M.C. Asser Press, 2012, at 118. 5 C.H. van Rhee, “Harmonisation of Civil Procedure: An Historical and Comparative Perspective”, in X.E. Kramer and C.H. van Rhee (eds), Civil Litigation in a Global‐ ising World, T.M.C. Asser Press, 2012, at 54. 6 Van Rhee, supra n. 5, at 56. 7 X.E. Kramer and C.H. van Rhee, “Civil Litigation in a Globalising World: An In‐ troduction in Civil Litigation”, in X.E. Kramer and C.H. van Rhee (eds), Civil Liti‐ gation in a Globalising World, T.M.C. Asser Press, 2012, 1. 8 R. Mańko, Europeanisation of Civil Procedure: Towards Common Minimum Stan‐ dards?, European Parliamentary Research Service (PE 559.499), 2015. 9 Hess, supra n. 3, at 171.

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long term goal should be “the elaboration of an ‘umbrella instrument’ pro‐ viding for a coherent and systematic set of rules of European procedural law.” It is tempting to view the United States as a model for such an endeav‐ or. As others have observed, a harmonizing impulse has characterized much of the history of US civil procedure,10 resulting in a considerable de‐ gree of harmonization across US states and between the state and federal judiciaries.11 One might analogize the US experience to the EU’s own har‐ monization project and conclude that a US perspective can offer insights for how the EU might harmonize its own rules of civil procedure.12 There may indeed be lessons to learn from the US experience. In this chapter, however, I argue that there are at least three reasons to be skepti‐ cal about the usefulness of the United States as a model for the harmoniza‐ tion of procedural rules in the EU. First, the rules of civil procedure are not as harmonized in the United States as commonly assumed (C). The rules diverge considerably across the judiciaries of different US states, within the federal judiciary, and be‐ tween state judiciaries and the federal judiciary. If the United States, with over 200 years of history and a common legal tradition, has not reached the goal of harmonization, how likely is it that the EU, with a much short‐ er history and diverse legal traditions, will attain that goal by using the US experience as a model? Second, judicial cooperation in the United States is based less on exten‐ sive harmonization than on a system of interjurisdictional deference made possible by the twin foundations of full faith and credit and minimum pro‐ cedural standards (D). However, it is unclear that either of these founda‐ tions is sufficiently well established in the EU today to ensure a degree of judicial cooperation among EU member states that matches that which ex‐ ists among US states. Third, for reasons of legal and political culture, the process of making rules of civil procedure in the United States is politicized, seemingly to a

10 T. Main, “Procedural Uniformity and the Exaggerated Role of Rules”, 46 Vill.L.Rev. (2001) 311. 11 P. Dubinsky, “United States: Harmonisation and Voluntarism. The Role of Elites in Creating an Influential National Model, the Federal Rules of Civil Procedure”, in X.E. Kramer and C.H. van Rhee (eds), Civil Litigation in a Globalising World, T.M.C. Asser Press, 2012, 223. 12 Kramer and van Rhee, supra n. 7, at 15.

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greater extent than in the EU (E). A more technical approach might be possible, and more desirable, in the EU. (B) From the English Tradition to a United States Model The starting point for understanding US civil procedure is English civil procedure. The English system distinguished actions at law, with highly technical forms of action and decisions based on legal precedent, and ac‐ tions at equity, with their own procedure and with decisions based on equi‐ table considerations.13 Naturally, the English model strongly influenced the early United States. However, the influence was not uniform. After in‐ dependence, some states (such as Delaware, New Jersey and New York) had separate courts of law and equity; some states (such as Connecticut and New Hampshire) had a single court with separate law and equity branches, as did the newly created US federal courts; and some states (such as Massachusetts and Pennsylvania) did not initially have courts with equity jurisdiction.14 The states (and the federal government) de‐ veloped their judicial systems separately, leading to significant procedural divergence;15 but they nevertheless shared a common legal tradition, which surely facilitated the harmonization efforts to come. There has never been a centralized federal legislative attempt to impose a single set of rules of civil procedure on the US states (in fact, the federal government does not have the constitutional authority to do so) — so the history of inter-state procedural harmonization is largely a story of state adoption of model rules, a process that Dubinsky16 has called “volun‐ tarism.” There have been two significant models for the US states: the Field Code and the Federal Rules of Civil Procedure. The first significant move toward procedural harmonization in the Unit‐ ed States came with the so-called Field Code, adopted as legislation by New York in 1848 and named after its primary advocate, the lawyer David Dudley Field. The Field Code simplified civil procedure, abolishing the

13 G. Hazard, J. Leubsdorf, and D.L. Bassett, Civil Procedure, 6th ed., Foundation Press, 2011, at 12-20. 14 K. Clermont, Principles of Civil Procedure, 3rd ed., West, 2012, at 31-32. 15 R. Marcus, “Modes of Procedural Reform”, 31 Hastings Int'l & Comp.L.Rev. (2008), at 163-164. 16 Dubinsky, supra n. 11, at 226.

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distinction between law and equity and establishing a single form of action — the civil action — in which a plaintiff would plead the facts needed to establish the elements of a cause of action or defense. By 1900, although US procedure was far from harmonized, twenty-seven states had adopted codes of procedure based wholly or partially on the Field Code.17 Meanwhile, in the US federal courts, there was a mix of diversity and uniformity. In actions at law, the Process Act of 1789 and later the Confor‐ mity Act of 1872 required the federal courts to follow the procedural law of the states in which they sat, whereas for actions at equity the Supreme Court developed uniform federal rules (modeled largely on English prac‐ tice). The result was that aside from equity rules in the federal courts, there was considerable procedural diversity in the United States through the early 1900 s, such that “a lawyer practicing in the state and federal courts of a particular locality must have mastered three systems of proce‐ dure: the state procedure (which might be unmerged and therefore com‐ prise two [i.e. law and equity] procedures); the federal law-procedure (which was the state procedure in law actions…); and the federal equityprocedure.”18 With the Rules Enabling Act of 1934, the US Congress authorized the US Supreme Court to make rules of procedure for the US federal courts. An Advisory Committee for the Federal Rules of Civil Procedure was es‐ tablished to draft the rules, which were approved by the Supreme Court and submitted to Congress. They entered into effect in 1938, providing a single set of procedural rules for all civil claims in the US federal courts. Among other features, the Federal Rules of Civil Procedure merged law and equity and provided simple and flexible rules of pleading, procedures for joinder of parties and claims, and comprehensive rules for discovery. Harmonization of procedure in the US federal courts had, in theory, been achieved — at least temporarily. The Federal Rules also contributed to the further harmonization of procedure across US state courts, as a significant number of states used them as a model for their own procedural reforms.19 Although it is difficult to identify a particular highpoint of procedural harmonization in the United States, one might place it sometime in the 1960 s, by which point the Federal Rules applied in all civil actions across the 94 districts of the US federal courts, and sixteen states plus Puerto Ri‐ 17 Hazard, Leubsdorf and Bassett, supra n. 13, at 21-22. 18 Clermont, supra n. 14, at 34-35. 19 Dubinsky, supra n. 11, at 223-245.

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co had rules of civil procedure “substantially similar” to the federal rules,20 or perhaps in the 1970 s.21 However, according to one estimate, more states followed the Field Code in 1897 than have ever followed the Federal Rules.22 (C) The Limits of Procedural Harmonization in the US For outside observers, the story of US civil procedure sometimes stops here, leaving the impression of an essentially harmonized US system of civil procedure. To be sure, from an external perspective, one might justi‐ fiably perceive the existence of a coherent “American approach” to civil justice: As Dubinsky23 puts it: [T]here exists today much similarity in the rules of civil procedure throughout the United States. A civil jury trial in state court in Iowa is much like one in federal court in Florida. Joinder of parties and consolidation of claims is com‐ mon in all judicial systems in the U.S. The right of litigants to pursue pre-trial discovery of documents and testimony (even from non-parties) is extensive everywhere in the U.S., at least when compared to evidence gathering in other countries. The approach to the financing of litigation — contingency fee agreements, presumptions against shifting attorneys’ fees, very little public funding — varies only marginally as one moves from one state to another.

But while there may be more diversity in the rules of civil procedure across EU member nations than across US states (and between the US fed‐ eral judiciary and US state judiciaries), it is important not to exaggerate the extent of US harmonization.24 If the US model is going to be used as one point of reference for deliberating on plans for harmonization else‐ where, it is important to have a more nuanced understanding that accounts

20 C. A. Wright, “Procedural Reform in the States”, 24 F.R.D. (1960), at 87. 21 G. Koppel, “Toward a New Federalism in State Civil Justice: Developing a Uni‐ form Code of State Civil Procedure through a Collaborative Rule-Making Pro‐ cess”, 58 Vand.L.Rev. (2005), at 1170; C. Tobias, “Civil Justice Reform and the Balkanization of Federal Civil Procedure”, 24 Ariz.St.L.J. (1992), at 1395; data from J. Oakley and A. Coon, “The Federal Rules in State Courts: A Survey of State Court Systems of Civil Procedure”, 61 Wash.L.Rev. (1986), at 1367-1427. 22 S. Subrin, “Federal Rules, Local Rules, and State Rules: Uniformity, Divergence, and Emerging Procedural Patterns”, 137 U.Pa.L.Rev. (1989), at 2044. 23 Dubinsky, supra n. 11, at 227. 24 See Oakley and Coon, supra n. 21, at 1427 (cautioning “against exaggeration of the dominance of the Federal Rules in modern American state courts”).

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for three dimensions of persistent (and some would say increasing) proce‐ dural diversity in the United States: diversity across US states, diversity across federal judicial districts, and diversity between state and federal courts, even in the same state. (1) Procedural Diversity Across US States Two systematic surveys, one by Oakley and Coon in 1986 and another by Oakley in 2003, offer an empirical snapshot of the extent of diversity across US states. The 1986 survey revealed the following:25 •

• • • •

23 jurisdictions (22 states plus the District of Columbia) were so-called “replica jurisdictions,” with rules of civil procedure that replicated the Federal Rules of Civil Procedure. 3 states had rules that varied slightly from the Federal Rules, but were clearly modeled on the Federal Rules. 4 states, unlike the federal system, adopted rules in a statutory code, but those rules closely followed the Federal Rules. 3 states had rules that largely replicated the Federal Rules, except for the basic rules of pleading. 18 states had procedural systems that were “substantially dissimilar” from the Federal Rules, including highly populous states such as Cali‐ fornia, Florida, Illinois, New York and Texas.

The authors found that while the majority of jurisdictions conformed sub‐ stantially to the Federal Rules, those jurisdictions encompassed only a mi‐ nority of the US population. Sixty-two percent of the population lived in states with rules of civil procedure that were substantially dissimilar from the Federal Rules. They also studied the pace of state adoption of rules based on the Federal Rules, and found that the rate of replication was on the decline: between 1949 and 1975, the number of replica jurisdictions rose from 4 to 23, but from 1975 to 1985 no state followed suit. Based on these results, the authors concluded that “only a minority of states have embraced the system and philosophy of the Federal Rules wholeheartedly enough to permit classification as true federal replicas.”26

25 Oakley and Coon, supra n. 21, at 1367-1427. 26 Oakley and Coon, supra n. 21, at 1369.

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According to the authors, “the era of an ‘accelerating trend’ of state court reform of civil procedure in the image of the Federal Rules has ended.”27 The 2003 survey provided evidence suggesting that the harmonizing trend had not only slowed, but indeed reversed itself. The survey focused on a sample of significant amendments to the Federal Rules between 1980 to 2000. It then determined how the 33 jurisdictions from the 1986 survey that were substantially similar to the Federal Rules responded to amend‐ ments to these rules: five in 1980-1991 (dealing with discovery, lawyer certification of pleadings and other court filings, pretrial case manage‐ ment, subpoenas, and judgment as a matter of law), seven amendments in 1993 (dealing with service of process, lawyer certification of pleadings and other court filings, pretrial case management, mandatory disclosures, and discovery), and one amendment in 2000 (dealing with mandatory dis‐ closures). The survey revealed the following adoption rates: • • • • •

62% for the 1980-1991 amendments: 102 out of 165 opportunities to adopt (5 amendments multiplied by 33 jurisdictions). 28% for the 1993 amendments: 65 out of 231 opportunities to adopt (7 amendments multiplied by 33 states). 42% (overall rate from 1980-1993, 12 amendments). 6% for the 2000 amendment: 2 out of 33 opportunities to adopt (1 amendment multiplied by 33 states). 39% (overall rate through 2000, 13 amendments).

Based on these results, Oakley concluded that “[n]ot only has the trend to‐ ward state conformity to the federal rules stopped accelerating — it has substantially reversed itself” and that “[f]ederal procedure is less influen‐ tial in state courts today than at any time in the past quarter-century.”28 Oakley speculated about the “causes for the decline of state conformity to the federal model,” suggesting that the increasing divergence is due less to states reverting back to pre-Federal Rules models than to states declining to follow “dubious” amendments to the Federal Rules.29 He observed that “from a state perspective, the [Federal Rules] have lost credibility as avatars of procedural reform.”30 In short, “[i]t is the Federal Rules that ap‐

27 Oakley and Coon, supra n. 21, at 1427. 28 J. Oakley, “A Fresh Look at the Federal Rules in State Courts”, 3 Nev. L.J. (2003), at 355. 29 Oakley, supra n. 28, at 359. 30 Oakley, supra n. 28, at 355.

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pear to have moved away from the states, rather than vice versa.”31 The trend may be due in part to the number of amendments to the Federal Rules and the controversial nature of many of them.32 One of the most important changes in US procedure since the adoption of the Federal Rules of Civil Procedure is the change in federal pleading standards adopted not through the federal rulemaking process or through legislation, but directly by the US Supreme Court in two cases: Bell At‐ lantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009). In these cas‐ es, the Supreme Court abandoned the “notice standard” of pleading in fa‐ vor of a stricter “plausibility standard” of pleading which, according to some critics, improperly changed the rules without following the legally established procedures for doing so. The question for the states, which are not bound by these decisions, is whether to change their pleading stan‐ dards to conform to the Twombly/Iqbal standard. Already, this develop‐ ment is leading to further differences across states as some of them reject and some of them adopt the new federal plausibility pleading standard.33 In short, there is considerable procedural diversity across US states. As one commentator has summarized the situation, “The ‘top-down’ rules model for achieving inter-state uniformity has failed.”34 (2) Procedural Diversity within the Federal System There also is procedural diversity within the US federal judiciary, across the 94 federal judicial districts. Although uniformity in federal civil proce‐

31 Oakley, supra n. 28, at 359. 32 C. Tobias, “The Past and Future of the Federal Rules in State Courts”, 3 Nev. L.J. (2003), 403. 33 As of 2014, of the 33 states with rules based on the Federal Rules as identified by Oakley and Coon, supra n. 21, so far 4 have adopted the plausibility pleading stan‐ dard, 8 have rejected it, and 18 have yet to address the question. J. Sullivan, “Do the New Pleading Standards Set Out in Twombly and Iqbal Meet the Needs of the Replica Jurisdictions?”, 47 Suffolk U.L.Rev. (2014), at 70; Z.W.J. Chen, “Follow‐ ing the Leader: Twombly, Pleading Standards, and Procedural Uniformity”, 108 Colum.L.Rev. (2008), at 1431-1470; R. Michalski, “Tremors of Things to Come: The Great Split between Federal and State Pleading Standards”, 120 Yale L.J. On‐ line (2010) 109; J. Owen, “A ‘Plausible’ Future: Some State Courts Embrace Heightened Pleading after Twombly and Iqbal”, 36 North Carolina Central Law Review (2013) 104. 34 Koppel, supra n. 21, at 1173.

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dure generally prevailed during the thirty years following the adoption of the Federal Rules of Civil Procedure in 1938, this began to change in the 1970 s. Already in 1985, one scholar had referred to “The Myth of Unifor‐ mity in Federal Civil Procedure.”35 This decline in harmonization is due primarily to the proliferation of lo‐ cal federal rules of civil procedure.36 Rule 83 of the Federal Rules autho‐ rizes each federal district court, by a majority of its judges, to adopt local rules consistent with federal statutes and the Federal Rules of Civil Proce‐ dure. In addition, it authorizes individual judges to “regulate practice in any manner consistent with federal law, [the Federal Rules], and the dis‐ trict’s local rules.”37 Although the drafters “apparently envisioned that dis‐ tricts would sparingly invoke Rule 83,”38 this has not proved to be the case. According to a study released in 1989, the federal district courts had al‐ ready issued more than 5,000 local rules and many of them conflicted with the Federal Rules. Almost every district had local rules governing pretrial

35 D. Roberts, “The Myth of Uniformity in Federal Civil Procedure: Federal Civil Rule 83 and District Court Local Rulemaking Powers”, 8 U.Puget Sound L.Rev. (1985), at 537-555. 36 Tobias, supra n. 21, at 1395. 37 Rule 83 provides as follows: “(a) Local Rules. (1) In General. After giving public notice and an opportunity for comment, a district court, acting by a majority of its district judges, may adopt and amend rules governing its practice. A local rule must be consistent with—but not duplicate—federal statutes and rules adopted under 28 U.S.C. §§ 2072 and 2075, and must conform to any uniform numbering system prescribed by the Judicial Conference of the United States. A local rule takes effect on the date specified by the district court and remains in effect unless amended by the court or abrogated by the judicial council of the circuit. Copies of rules and amendments must, on their adoption, be furnished to the judicial council and the Administrative Office of the United States Courts and be made available to the public. (2) Requirement of Form. A local rule imposing a requirement of form must not be enforced in a way that causes a party to lose any right because of a nonwillful failure to comply. (b) Procedure When There Is No Controlling Law. A judge may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 and 2075, and the district's local rules. No sanction or other disadvantage may be imposed for noncompliance with any requirement not in federal law, federal rules, or the local rules unless the alleged violator has been furnished in the particular case with actual notice of the requirement.”. 38 C. Tobias, “Local Federal Civil Procedure for the Twenty-First Century”, 77 Notre Dame L.Rev. (2002), at 538.

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procedure, including pretrial conferences and discovery. Moreover, at the level of individual judges, the study found numerous “standing orders” governing procedure.39 With the passage of the Civil Justice Reform Act in 1990, the US Congress directly contributed to de-harmonization by di‐ recting the federal districts to develop and implement their own measures to reduce litigation expense and delay.40 There also is increasing diversity in bankruptcy procedure and appellate procedure in the federal courts.41 As one observer puts it, “Rather than uniformity, a high degree of local di‐ versity has been introduced into almost every phase of federal pretrial pro‐ cedure, including laying of venue, pleading, the use of motions directed to the pleadings, discovery, and even the substitution of alternative methods of dispute resolution for the litigation process itself.”42 As a result, “[a]n increasing array of important procedural issues are now dealt with in fed‐ eral courts in a local, rather than a national fashion.”43 Experts generally have reacted negatively to these developments. Car‐ rington concludes that the local rules create “legal clutter” that obscures the basic commands of the Federal Rules of Civil Procedure, increase costs and create inefficiency and traps for the unwary, while giving an un‐ due advantage to local lawyers.44 According to others, these developments mean that “federal practice is more fractured than at any time since the Supreme Court prescribed the original federal rules during 1938;”45 they mean that “the central accomplishment of uniform federal rules is in seri‐ ous jeopardy;”46 and one has gone so far as to say that “the federal judicial system is de-evolving into a collection of largely autonomous units with separate procedural regimes” and “[i]nstead of a unitary federal judicial system, joined together in a common procedural enterprise, each district

39 Tobias, supra n. 21, at 1398. 40 Tobias, supra n. 21, at 1404. 41 G. Sisk, “The Balkanization of Appellate Justice: The Proliferation of Local Rules in the Federal Courts”, 68 U.Colo.L.Rev. (1997) 1; Tobias, supra n. 38, at 558. 42 Roberts, supra n. 35, at 537-538. 43 E. Chemerinksy and B. Friedman, “The Fragmentation of Federal Rules”, 46 Mer‐ cer L.Rev. (1995), at 760. 44 P. Carrington, “A New Confederacy? Disunionism in the Federal Courts”, 45 Duke L.J. (1996), at 947-948. 45 Tobias, supra n. 38, at 533. 46 Chemerinsky and Friedman, supra n. 43, at 757.

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and each circuit has become its own fiefdom with its own independent rules governing the progress and disposition of litigation.”47 (3) Procedural Diversity Between State Systems and the Federal System The third dimension of procedural diversity in the US legal system is state-federal diversity. As noted above, the Process Act of 1789 and the Conformity Act of 1872 required federal courts to follow state procedural rules in actions at law, temporarily resulting in state-federal harmonization in that domain; but there was no similar requirement for actions at equity. After the adoption of the Federal Rules of Civil Procedure, the US federal courts applied those rules rather than state rules in all civil actions, creat‐ ing disharmony between the rules of civil procedure used in the US fed‐ eral courts and the diverse rules of civil procedure used in state courts. State-federal harmonization thereafter increased as a growing number of states adopted rules based on the Federal Rules. However, the Federal Rules have been repeatedly amended, and even states that originally followed the Federal Rules have failed to keep up with those amendments. Moreover, the proliferation of local federal rules means that even state rules of civil procedure that are more or less aligned with the Federal Rules might not be aligned with a given district’s local rules — and in states with multiple federal districts with divergent local rules, it simply might not be possible for the state’s rules to simultaneous‐ ly be consistent with the local federal rules of all federal districts within the state. In short, the Federal Rules have become not only a moving tar‐ get, but multiple moving targets. This instability and failure to maintain uniformity across the US federal districts is at least partly responsible for the decreasing uniformity along the vertical dimension between rules of civil procedure in the federal courts and in state courts.48 As Oakley con‐ cludes, “Where once the ideal ‘one procedure for state and federal courts’ was a beacon for procedural reform, its light has dimmed to barely a flick‐ er”.49

47 Sisk, supra n. 41, at 1-2. 48 Koppel, supra n. 21, at 1186. 49 Oakley, supra n. 28, at 383-384.

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(4) Implications for the European Union The persistent diversity of rules of civil procedure in the United States— across US states, within the federal courts, and between state and federal courts—suggests that if the EU’s goal is harmonization of procedural rules, the United States might not be an ideal model. Nevertheless, there may be lessons to learn from the US experience. First, the US experience might suggest that the prospect of extensive harmonization across EU member nations is not particularly bright. In the more than 200 years of US history, and notwithstanding a shared legal tra‐ dition, procedural harmonization in the United States is far from complete, and may (if some of the commentators cited above are correct) actually be in retreat. Even in the United States, interstate variation in legal culture may be one reason why the harmonizing effects of the Federal Rules of Civil Procedure have not met expectations.50 The EU has had less time to lay foundations for harmonization. The Treaty of Rome was signed in 1957. More than half of the EU’s members joined in the 1990 s and 2000 s, making the history of the EU as currently composed even shorter. More‐ over, the EU member nations do not have the advantage of a common le‐ gal tradition as a point of departure for procedural harmonization. Even using simple traditional categories, EU member nations span at least four different legal families, including the Romanistic, Germanic, English and Nordic families.51 Empirical comparative analysis reveals important dif‐ ferences in fundamental legal structures among EU members, including courts, judges and lawyers.52 Thus, the US experience might provide evi‐ dence supporting those who are doubtful about the likelihood of procedu‐ ral harmonization in the EU.53

50 Subrin, supra n. 22, at 2046. 51 K. Zweigert and H. Kötz, Introduction to Comparative Law, 3rd ed., OUP, 1998. 52 A. Uzelac, “Harmonised Civil Procedure in a World of Structural Divergences? Lessons Learned from the CEPEJ Evaluations”, in X.E. Kramer and C.H. van Rhee (eds), Civil Litigation in a Globalising World, T.M.C. Asser Press, 2012, at 175-205. 53 For example, as Kramer, supra n. 1, at 123 puts it: “A full harmonisation of civil procedure at a regional (EU) level […] is […] even less likely than full harmonisa‐ tion of substantive private law.” M. Storme, although a strong supporter of har‐ monisation, concedes that the option to “impose a European system of procedural law, to replace the natural procedural law of each of the Member States […] is a proposition which is, in my view, totally unrealistic”, M. Storme, “Closing Com‐

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But one should not take the comparison too far. In the United States, there has never been a centralized nation-wide effort to harmonize proce‐ dure among US state judiciaries. To the extent there is harmonization, it is due primarily to the voluntary adoption of model rules of procedure — such as the Field Code or the Federal Rules of Civil Procedure. Perhaps a centralized EU-driven approach could achieve more harmonization among EU member nations than the “model rules” approach has achieved in the United States. This, however, raises the question of the EU’s competence in the domain of civil procedure. Under Article 81(1) of the Treaty on the Functioning of the European Union, “The Union shall develop judicial co‐ operation in civil matters having cross-border implications….” Some ex‐ perts argue for an interpretation of “cross-border implications” that gives it “the broadest possible meaning and, in essence, concerns all types of dispute” because cross-national variation of procedural rules can cause “distortion” within the EU even in disputes that are otherwise purely do‐ mestic.54 But the predominant understanding appears to be that the power granted to the EU under Article 81 is “limited to international civil proce‐ dure” and “does not extend to domestic disputes that have no cross-border aspect to them,” and that domestic disputes are therefore “beyond the reach of the legislative powers of the Union.”55 Second, the US experience may be relevant to the question of whether an EU blueprint for harmonization of rules of civil procedure should in‐ clude the ability of member nations to adopt the equivalent of local rules under Rule 83 of the US Federal Rules of Civil Procedure. Including such a feature might make harmonization by way of EU regulation (if the EU were to acquire the necessary authority) more politically acceptable to EU members and allow rules to be tailored to address particular national chal‐ lenges or accommodate important national practices. As the US experi‐ ence indicates, however, there is a risk that opening the door to national rules could lead to a proliferation of such rules, undermining efforts to achieve uniformity across EU members. In any event, if a plan for harmo‐

ments: Harmonisation or Globalisation of Civil Procedure?”, in X.E. Kramer, C.H. Van Rhee (eds), Civil Litigation in a Globalising World, T.M.C. Asser Press, 2012, 379, at 384. On the other hand, Hess, supra n. 3, at 172 posits that in the long term, in some form, “the elaboration of a coherent European procedural law does seem possible,” a conclusion that Storme, at 386 endorses. 54 Storme, supra n. 53. 55 Wagner, supra n. 4, at 97-98.

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nization in the EU were instead to be based on an EU directive on civil procedure, a counterpart to Rule 83’s local rules would likely be redundant since EU members would already be able to develop their own rules to reach the goals set forth in the directive. (D) The Full Faith and Credit Alternative Even if the United States is not an ideal model for the harmonization of rules of civil procedure, might it nevertheless be a useful model for judi‐ cial cooperation among EU members in civil matters? Perhaps. Harmo‐ nization of procedural rules is only one way of fostering cooperation. An alternative approach is what I will call “interjurisdictional deference.” Rather than insisting on harmonization, interjurisdictional deference toler‐ ates legal diversity and aims to establish judicial cooperation based on the twin foundations of full faith and credit and minimum procedural stan‐ dards. Full faith and credit requires one jurisdiction to defer to others by recognizing and enforcing the judgments of the courts of other jurisdic‐ tions, but only if specified conditions are satisfied. One condition is that the procedural rules producing those judgments conform to agreed-upon minimum standards. Even if the United States falls short in terms of har‐ monization, it is an example of largely successful judicial cooperation in civil matters based on interjurisdictional deference. In fact, there has been a recent flurry of scholarship suggesting various forms of full faith and credit for the EU,56 as well as minimum standards of procedure.57 (1) Full Faith and Credit In the United States, there is a strong and well-established principle of full faith and credit that flows from Article IV, Section 1 of the US Constitu‐

56 A. Frackowiak-Adamska, “Time for a European ‘Full Faith and Credit Clause’”, 52 CMLR (2015), 191; M. Lehmann, “Recognition as a Substitute for Conflict of Laws?”, in S. Leible (ed), General Principles of European Private International Law, Wolters Kluwer, 2016. 57 N. Andrews, “Fundamental Principles of Civil Procedure: Order Out of Chaos”, in X.E. Kramer, C.H. van Rhee (eds), Civil Litigation in a Globalising World, T.M.C. Asser Press, 2012, 19.

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tion: “Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” A federal statute — 28 USC § 1738 — implements the full-faith-and-credit clause by requiring that all courts in the United States, including both state and federal courts, give full faith and credit to the judicial proceedings of US states.58 In the US, full faith and credit is sometimes called an ‘iron law’ be‐ cause it can require one state (S2) to enforce another state’s (S1) judgment even if the judgment is based on a mistake of fact or law.59 If the judgment debtor wishes to challenge the S1 judgment on the merits, it must do so in S1’s courts — for example, by appealing to an S1 appellate court — but it cannot do so in S2. There are narrow exceptions to the general rule. Full faith and credit does not require S2 to enforce an S1 judgment if the S1 judgment was obtained by fraud or if the S1 court did not have jurisdic‐ tion. However, if the S1 court heard the issue of fraud or jurisdiction and decided against the judgment debtor, the S2 court must give full faith and credit to that decision.60 Moreover, the US Supreme Court has stated that there is no “roving public policy exception” to full faith and credit.61 According to the Court, “[t]he full faith and credit clause is one of the provisions incorporated into the Constitution by its framers for the purpose of transforming an aggrega‐ tion of independent, sovereign States into a nation […] [W]e are aware of [no] considerations of local policy or law which could rightly be deemed to impair the force and effect which the full faith and credit clause […] require[s] to be given to [a money] judgment outside the state of its rendi‐ tion.”62 Although there are occasional suggestions of a limited public poli‐

58 See 28 USC 1738: ‘The […] judicial proceedings of any court of any […] State, Territory or Possession […] shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are tak‐ en.’. 59 W. Reynolds and W. Richman, The Full Faith and Credit Clause: A Reference Guide to the United States Constitution, Praeger, 2005, at 70-73. 60 W. Richman, W. Reynolds and C. Whytock, Conflict of Laws, 4th ed., Matthew Bender, 2013, at 393-394. 61 Baker v General Motors 522 US 222, 233–234 (1998). 62 Baker v General Motors (n 27) 233–234 (citations omitted).

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cy exception,63 “the Supreme Court has not endorsed [a public policy ex‐ ception] and its precedents seem to negate it.”64 For these reasons, in the United States, diversity in rules of civil procedure across US states ordi‐ narily will not impair interstate judicial cooperation through recognition and enforcement of foreign judgments. Has the EU built a sufficiently strong foundation of full faith and credit for judicial cooperation based on interjurisdictional deference? The rules governing the enforcement of a judgment of a court of one EU member (M1) in another EU member (M2) in civil and commercial matters are contained in the recently recast Brussels I Regulation.65 Under the Brus‐ sels I Regulation, there is a general rule requiring enforcement of an M1 judgment in M2, unless one of the grounds for refusing enforcement listed in Article 45(1) is found to exist: On the application of any interested party, the recognition of a judgment shall be refused: (a) if such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed; (b) where the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so; (c) if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed; (d) if the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and be‐ tween the same parties, provided that the earlier judgment fulfils the condi‐ tions necessary for its recognition in the Member State addressed; or (e) if the judgment conflicts with: (i) [the special jurisdictional provisions of] Sections 3, 4 or 5 of Chapter II where the policyholder, the insured, a benefi‐ ciary of the insurance contract, the injured party, the consumer or the employ‐

63 See, eg, Restatement (Second) of Conflict of Laws § 103: ‘A judgment rendered in one State of the United States need not be recognized or enforced in a sister State if such recognition or enforcement is not required by the national policy of full faith and credit because it would involve an improper interference with important interests of the sister State’; Reading & Bates v Baker Energy Resources 976 SW 2 d 702 (Tex App 1998). 64 S. Symeonides, “Choice of Law in the American Courts in 2013: Twenty-Seventh Annual Survey”, 62 Am.J.Comp.L. (2014), at 319. 65 Regulation No 1215/2012 of 12 December 2012 on jurisdiction and the recogni‐ tion and enforcement of judgments in civil and commercial matters (recast), OJ 2012 L 351 (hereinafter Brussels I Reg).

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ee was the defendant; or (ii) [the exclusive jurisdiction provisions of] Section 6 of Chapter II.

In one respect, the Brussels I Regulation may require an even more robust form of full faith and credit than the US principle of full faith and credit because neither fraud nor lack of personal jurisdiction is an express ground for refusing recognition and enforcement.66 For two reasons, how‐ ever, these differences should not be exaggerated. First, as just noted, un‐ der the US law of full faith and credit, S2 must give full faith and credit to an S1 court’s rulings on fraud or jurisdiction. Second, unlike the US ap‐ proach to full faith and credit, the EU approach has an explicit public poli‐ cy exception. The public policy exception is generally understood as being very narrow,67 but it nevertheless suggests that the EU’s requirement of “full faith and credit” is not as strict as the US requirement. Indeed, some experts argue that the public policy exception can be understood as pro‐ viding a “safety net” that can allow M2 to refuse enforcement of an M1 judgment where M1 failed to provide certain procedural rights — includ‐ ing those fair trial rights assured by Article 6(1) of the European Conven‐ tion on Human Rights68 — which would go beyond the grounds for re‐ fusal expressly available under the US law of full faith and credit. (2) Fundamental Principles of Procedure By itself, however, full faith and credit is not a satisfactory alternative to harmonization of procedural rules. After all, it would be offensive to the protection of fundamental rights and politically unacceptable to blindly recognize and enforce the judgments of other jurisdictions regardless of the procedural rules followed. For this reason, agreement on fundamental

66 Except pursuant to Article 45(1)(e), where the judgment conflicts with the Brus‐ sels I Regulation’s special jurisdictional provisions designed to protect weak par‐ ties — but even then, Article 45(2) provides that M2 shall be bound by the find‐ ings of fact on which M1 based its jurisdiction. 67 P. Stone, EU Private International Law, 2nd ed., Edward Elgar Publishing, 2010, at 239. 68 X.E. Kramer, “Cross-border Enforcement in the EU: Mutual Trust versus Fair Tri‐ al? Towards Principles of European Civil Procedure”, 2 IJPL (2011) 202, 219: ‘A safety net for the violation of fair trial principles is provided [by the Brussels I Reg] at the enforcement level through the ground of refusal relating to public poli‐ cy’.

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principles of procedure or “minimum standards” is also essential. The United States has a well-developed body of nation-wide minimum stan‐ dards for civil procedure, based primarily on the due process clauses of the US Constitution and their interpretation and application by US courts, most notably the US Supreme Court.69 Although it has not had the 200 years of constitutional history that the United States has had to develop minimum procedural standards, the EU — and to some extent Europe more generally — has been making rapid progress. The “constitutional roots” for such standards can be found in both Article 47 of the EU Charter of Fundamental Rights70 and Article 6 of the European Convention on Human Rights.71 As European experts on civil procedure have argued, these provisions, together with their interpre‐ tation and application by the Court of Justice of the European Union and the European Court of Human Rights, can provide a point of departure for the development of EU-wide minimum standards.72 Synthesized and re‐ stated, these standards might eventually be embodied in a set of Principles of European Civil Procedure.73 For example, Andrews has proposed a set

69 E. Chemerinsky, Constitutional Law: Principles and Policies, 4th ed., Aspen Pub‐ lishers, 2011, at ch. 7. 70 Article 47 of the EU Charter of Fundamental Rights (“Right to an effective reme‐ dy and to a fair trial”) provides: “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the pos‐ sibility of being advised, defended and represented. Legal aid shall be made avail‐ able to those who lack sufficient resources in so far as such aid is necessary to en‐ sure effective access to justice.”. 71 Article 6(1) of the European Convention (“Right to a fair trial”) provides: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pro‐ nounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic so‐ ciety, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”. 72 Hess, supra n. 3, at 161; S. Prechal, “The Court of Justice and Effective Judicial Protection: What Has the Charter Changed?” in C. Paulussen et al. (eds), Funda‐ mental Rights in International and European Law, T.M.C. Asser Press, 2016, 143. 73 Kramer and van Rhee, supra n. 7, at 15.

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of fundamental principles of procedure, which he organizes into four cat‐ egories: regulating access to court and to justice, ensuring fairness of the process, maintaining a speedy and effective process, and achieving just and effective outcomes.74 Such a project could also build on the seminal work of Storme75 and the ALI/UNIDROIT project on Principles of Transnational Civil Procedure (although the latter, having taken into ac‐ count US procedure, might not be most appropriate for an EU-specific project). These principles might, in turn, serve as the centerpiece of an EU directive, defining the result to be achieved—namely, rules of civil proce‐ dure that meet the specified minimum standards—but allowing each mem‐ ber nation to develop those rules for itself.76 This two-step process, where‐ by the EU adopts a directive setting forth standards and the directive is then implemented by the member states in accordance with the standards, has been taken in other fields of EU law.77 (3) Implications for the EU In short, whereas there are reasons to conclude that harmonized rules of civil procedure for all EU members are unlikely, the alternative of judicial cooperation based on US-style interjurisdictional deference might be in reach. Such an approach would be a lesser imposition than full-fledged harmonization on the procedural autonomy of EU member states.78 In ad‐ dition, interjurisdictional deference accommodates legal diversity (within the limits of minimum standards) which, from a law and economics per‐ spective, may allow satisfaction of a greater number of diverse preferences

74 Andrews, supra n. 57. 75 M. Storme (ed), Approximation of Judiciary Law in the European Union, Martinus Nijhoff Publishers, 1994. 76 Article 288 TFEU: “To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regu‐ lation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.”. 77 Hess, supra n. 3, at 160. 78 D. Galetta, Procedural Autonomy of EU Member States: Paradise Lost?, Springer, 2010, at 168; Hess, supra n. 3, at 168.

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and enable learning effects.79 It does not require that perspective to agree that “where different procedural structures turn out to be equally effective, fair, transparent and user-friendly, the pluralism of procedural forms may be … considered as desirable, just as harmony may be better achieved by polyphonic voices than by voices chanting in unison.”80 Of course, this would not be a perfect solution. Persistent procedural differences, with their implications for substantive outcomes, would per‐ sist with this model and would risk creating incentives for forum shopping and reverse forum shopping, which is one consequence of procedural di‐ versity in the United States. Nevertheless, in the United States, well-de‐ veloped principles of full faith and credit and procedural due process com‐ bine to make it possible to speak of a reasonably stable and coherent “US legal system.” The same might be achievable in the EU. One potential barrier to this approach is that EU members currently ap‐ pear to lack the level of “mutual trust” required for a sufficiently robust principle of full faith and credit. In the EU, the principle of mutual trust has played an animating role in private international law since at least the early 1990 s. In Sonntag v. Waidmann, a 1993 case before the European Court of Justice, Advocate General Darmon stated in his opinion that “[t]he principle of the recognition of judgments is based on the Member States’ mutual trust in their respective legal systems and judicial institu‐ tions. This trust allows the Member States to waive their internal rules on the recognition and enforcement of foreign judgments.”81 Reinforcing this understanding, the recast Brussels I Regulation explicitly links the aboli‐ tion of exequatur to mutual trust: “Mutual trust in the administration of justice in the Union justifies the principle that judgments given in a Mem‐ ber State should be recognised in all Member States without the need for any special procedure [...] As a result, a judgment given by the courts of a Member State should be treated as if it had been given in the Member State addressed.”82 79 L. Visscher, “A Law and Economics View on Harmonisation of Procedural Law”, in X.E. Kramer and C.H. van Rhee (eds), Civil Litigation in a Globalising World, T.M.C. Asser Press, 2012, at 74-78. 80 Uzelac, supra n. 52, at 204. 81 Opinion of Advocate General Darmon in CJEU, case C-172/91, Sonntag/Waid‐ mann, ECLI:EU:C:1992:487, at para. 71-72. 82 Recital 26 of Brussels I Recast. See also Pamela Kiesselbach, at 8 (explaining that the proposal to abolish exequatur “is premised upon the assumption of a high level of mutual trust and confidence in the maturity of judicial systems across the EU”);

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However, it is unclear that mutual trust has developed EU-wide to the point where US-style full faith and credit — without a public policy “safe‐ ty net” — would be viable or appropriate. Although each country admitted to the EU must satisfy rigorous conditions for membership, and although the European Convention on Human Rights and the EU Charter of Funda‐ mental Rights provide minimum standards of fair trial, the European Com‐ mission has found that corruption is a significant problem in EU member states.83 One observer argues that enlargement has exacerbated these con‐ cerns: The issue of corruption is a sensitive one in the EU, and is usually avoided in the legislative discussions on private international law. But the existence of corruption in general is acknowledged, and was put on the political agenda. Recent reports from Transparency International and the EU have revealed that corruption is a major problem in many member states, and that it has in‐ creased over the past few years. Corruption exists in every member state, but the reports make clear that the expansion of the EU to countries with weaker institutions requires serious attention. In this light, [some claims about] mutu‐ al trust may be a little too optimistic.84

And according to another observer: “Differences in [expectations of users of the justice system] in Europe are not only huge, they are also not suffi‐ ciently diagnosed and monitored. The extremes, such as the established human rights violations regarding fairness and length of proceedings, are only symptoms and tentative indications. It is certain that in the current

X.E. Kramer, “Procedure Matters: Construction and Deconstructivism in European Civil Procedure,” 33 Erasmus Law Lectures (2012), at 18: “Based on this pillar [mutual trust], the European Commission wishes to abolish the permission of courts for the enforcement of judgments rendered in another EU Member State. The idea is that if there is full mutual trust, this permission (called exequatur) is no longer required”. 83 See European Commission, EU Anti-Corruption Report, COM(2014) 38 final, available at http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/organizedcrime-and-human-trafficking/corruption/anti-corruption-report/index_en.htm (last visited 16 June 2014). 84 X.E. Kramer, “Private International Law Responses to Corruption: Approaches to Jurisdiction and Foreign Judgments and the International Fight Against Corrup‐ tion”, in International Law and the Fight against Corruption, Advisory Report for the Dutch Royal Society of International Law, No. 139, Asser Press, 2012, at 139. See also R. Arenas Garcia, “Abolition of Exequatur: Problems and Solutions”, 12 Yrbk Priv Intl L (2010) 351, at 372: “[M]utual trust is a legal obligation, but it can also be seen as a fact. In other words: the authorities of one Member State must trust the authorities of the other Member States; but do they really trust them?”.

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state of affairs neither in Greater Europe nor in the EU can citizens ap‐ proach courts and authorities in other States with the expectation of re‐ ceiving the same standards of legal protection, both regarding its fairness and its effectiveness.”85 (E) The Politics of Procedural Reform A third reason why the US experience might not be an ideal model for the harmonization of civil procedure in the EU is that the process of procedu‐ ral rulemaking is often quite politicized in the United States. A more tech‐ nical approach might be possible, and more desirable, in the EU. The conventional wisdom is that initially, at least, the values underlying civil procedure in the United States were considered to be apolitical — “values of administrative design, such as efficiency (understood narrowly as minimizing administrative cost), simplicity, and flexibility.”86 However, as civil litigation in the United States became increasingly viewed as an instrument for advancing public as well as private interests — promoting, for example, civil rights, consumer welfare, and environmental protection — it became more difficult to think of procedure as merely technical.87 One scholar argues that politics came to procedural reform as early as the Field Code’s spread in the mid-to-late 1800 s, noting that legislation based on the code “[i]n many places […] came to be festooned with provisions sought by special interests.”88 Today “recognition of the power of proce‐ dure to advance substantive agendas has led to increased political pres‐ sures. Interest groups lobby rulemakers and legislators to create or pre‐ serve procedural advantages.”89 Business-oriented interest groups have influenced all three branches of the US federal government in ways that increasingly limit court access and private enforcement of legal rights. Recent examples include the Private Securities Litigation Reform Act of 1995 (federal legislation limiting in‐ vestor protection suits against corporations), the 2015 amendments to the

85 Uzelac, supra n. 52, at 204. 86 R. Bone, “The Process of Making Process: Court Rulemaking, Democratic Legiti‐ macy, and Procedural Efficacy”, 87 Geo.L.J. (1999), at 896. 87 Bone, supra n. 86, at 902. 88 Marcus, supra n. 15, at 165. 89 Michalski, supra n. 33, at 113.

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Federal Rules of Civil Procedure (limiting discovery, among other amend‐ ments), and US Supreme Court decisions that some argue circumvented the authorized federal rulemaking process by changing procedures to facil‐ itate summary judgment and impose stricter pleading requirements. It is difficult to characterize these and other recent changes other than as pro-defendant and pro-business. But whether these changes impose in‐ appropriate limits on court access or provide appropriate protections against frivolous litigation is in the eye of the beholder. The essential point is that it is well understood that changes in rules of civil procedure have distributive consequences — they affect the ability of plaintiffs to seek ju‐ dicial enforcement of rights and the exposure of defendants to the costs of litigation and of potential judgments. While politics is expected to influ‐ ence legislation, evidence of interest group capture in recent procedural changes introduced by the unelected US Supreme Court90 and produced by the federal rulemaking process91 is more disconcerting. In the United States the political salience of procedural change may be greater than in most EU members. This is because of the role of litigation in the US as a means for private parties to enforce legal rights in areas that affect the public interest, such as consumer and labor rights, environmen‐ tal protection, racial discrimination, and antitrust.92 Because civil litigation is an important regulatory tool in the US, those favoring regulation may be more likely to favor a higher degree of court access and access to discov‐ ery, whereas those with a more deregulatory bent may be more likely to advocate tighter restrictions. As one expert who has been deeply involved in federal rulemaking puts it, recent business-oriented changes to the Fed‐ eral Rules of Civil Procedure “weaken[] the enforcement of public laws by private citizens [and] thus conform[] to the deregulation or tort-reform po‐ litics favored by many business interests.”93 The same expert links the de‐ fendant-oriented tilt in recent procedural changes to a political shift from a

90 P. Carrington, “Politics and Civil Procedure Rulemaking: Reflections on Experi‐ ence”, 60 Duke L.J. (2010), at 663-664. 91 P. Moore, “The Anti-Plaintiff Pending Amendments to the Federal Rules of Civil Procedure and the Pro-Defendant Composition of the Federal Rulemaking Com‐ mittees”, 83 U.Cin.L.Rev. (2015) 1083; L. Mullenix, “Discovery in Disarray: The Pervasive Myth of Pervasive Discovery Abuse and the Consequences for Un‐ founded Rulemaking”, 46 Stan.L.Rev. (1994) 1393. 92 Subrin, supra n. 22, at 2050. 93 Carrington, supra n. 90, at 600.

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view of litigation as an appropriate means of regulating business in the public interest to an increasingly anti-regulation outlook.94 Because civil litigation is not as well established as a method of law and policy reform in EU members nations as it is in the United States, per‐ haps in its own harmonization efforts the EU can more effectively manage interest group capture of the rulemaking process than the United States. Perhaps it is possible to “strike an EU-wide balance on the rights of claimants and defendants.”95 On the other hand, “the balance between proclaimant/creditor and pro-defendant/debtor approaches may differ from Member State to Member State, depending on the deeper political and axi‐ ological choices underlying civil procedure. Indeed, the law of civil proce‐ dure is not a stand-alone legal field, but rather ‘is embedded in a web of legal, political, economic and social expectations, some of which the pro‐ cedural system helps to create.’”96 If this is correct, then it would seem that procedural rules are intrinsically political, and that a process of proce‐ dural harmonization in the EU would ultimately become politicized. By allowing more procedural diversity, the alternative path to judicial cooper‐ ation—interjurisdictional deference based on full faith and credit and min‐ imum standards of procedure—might best manage the impact of politics by avoiding a centralized EU rulemaking process that might be especially susceptible to specialized interest group influences (a risk suggested by the US federal rulemaking process) and fostering competition between dif‐ ferent sets of national procedural rules.97 (G) Conclusion The US example, although sometimes viewed as a model of procedural harmonization, in fact illustrates the limits of harmonization, as well as harmonization’s ebbs and flows. Diversity in politics, local practices and legal culture might mean that a single model for state and federal courts is unlikely in the United States. The EU would surely face similar or even greater challenges if it were to embark on full-fledged efforts toward har‐ monization of members’ rules of civil procedure. However, the EU is al‐

94 95 96 97

Carrington, supra n. 90, at 606-608. Mańko, supra n. 8, at 4. Mańko, supra n. 8, at 4. Visscher, supra n. 79, at 79.

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ready on its way toward what for the near term, at least, would seem to be a more attainable objective: a fairly robust form of full faith and credit, coupled with increasingly well-developed minimum standards of civil pro‐ cedure, that can foster judicial cooperation based on interjurisdictional deference. The result could be a cohesive and well-functioning “European legal system” notwithstanding significant differences in national rules of civil procedure. The challenge — if the US is any guide — will be how to navigate the politics of procedural reform in a way that will produce ratio‐ nal and coherent EU minimum standards and national rules that serve the public good.

158

Comments on Christopher A. Whytock, Harmonization of EU Procedural Law: Is the US a Positive or Negative Model? Jan von Hein Professor University of Freiburg (Germany)

Summary: The comment focuses on the issue how a further harmonization of EU civil procedure may be achieved in light of the rather limited com‐ petences of the EU in this regard. Just as the Federal Rules of Civil Proce‐ dure (FRCP) have been transplanted voluntarily by US states to their do‐ mestic laws, a similar effect may be realized through a spontaneous, "bot‐ tom-up" harmonization of domestic laws by EU member state legislatures and courts. This possibility is analyzed with regard to cross-border litiga‐ tion involving third states, an area that is, even after the recast of Brussels I, still largely untouched by European regulations. Since there is no Euro‐ pean equivalent to the US system of federal courts (and correspondingly no true equivalent to the FRCP), however, more substantive harmoniza‐ tion of civil procedure in domestic cases will require a "top-down" ap‐ proach, i.e. further legislative action by the EU. (A) Introduction Having read Christopher Whytock’s excellent, well-researched and thought-provoking paper, one is struck by a similarity between the situa‐ tion of procedural law in the United States and the European Union. In both legal systems, a certain area of law has already been federalized (in the US) or Europeanized (in the EU), but the core procedural law applied by member states of the respective Unions remains, at least from a formal perspective, largely untouched by interventions emanating from the fed‐ eral or European level. Yet, Christopher Whytock’s paper also elucidates that this is not the end of the story. Although the US federal legislature has only codified the Federal Rules of Civil Procedure that are applied by fed‐ eral courts, these rules have exerted a considerable influence on state leg‐ islators as well because, to a varying degree, they served as models for re‐ forms at the state level (Whytock sub 1). In this paper, I will, after first 159

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discussing the reasons for such "legal transplants" in general (sub B), look at the question whether existing European rules of civil procedure have produced similar trickle-down effects from the European to the member state level (sub C). Apart from this kind of soft harmonization, one has to consider whether a more robust form of black-letter, top-down harmoniza‐ tion may be appropriate and feasible for the EU (sub D). Moreover, the principle of full faith and credit given to sister-state judgments has con‐ tributed to the development of minimum standards in state civil procedure in the US (Whytock sub 3); thus, the question arises whether, in light of the principle of free movement of judgments enshrined in Brussels Ibis,1 a similar development is under way in the EU (sub E). Finally, Christopher Whytock stresses that the harmonization of procedural laws is not only a technical, but a highly political issue (Whytock sub 4). Therefore, the po‐ litical dimension of further procedural harmonization in the EU must not be neglected, either: Would it be wiser to push through reforms in policy areas where a certain degree of political momentum can be established (e.g. consumer protection, antitrust), or would a more comprehensive, neutral and technical approach to the subject be preferable (sub F)? (B) Reasons for legal transplants from the federal or European level to the member states In comparative law and comparative legal history, there are two important factors that have been identified as causing receptions of foreign law: power and prestige.2 Although federal or European law is not strictly speaking "foreign" to member states of the respective Unions, those cat‐ egories may help to understand why law that is created at the federal or European level finds its way into domestic legal orders beyond its original scope of application. In the U.S., it is quite clear that Congress has no

1 Regulation (EU) No. 1215/2012, OJ 2012 L 351. 2 For a general survey of reasons for receptions of foreign law, see J. von Hein, Die Rezeption US-amerikanischen Gesellschaftsrechts in Deutschland, Mohr Siebeck, 2008, at 287–396; on power in particular, see P. Koschaker, Europa und das römis‐ che Recht, C.H. Beck, 2nd ed. 1953, at 137 et seq.; J.M. Miller, “A Typology of Legal Transplants: Using Sociology, Legal History and Argentine Examples to Ex‐ plain the Transplant Process”, 51 Am. J. Comp. L. (2003) 839, at 847–849; on pres‐ tige in particular, see J.M. Miller, ibidem, at 854–867; H. Muir Watt, “Propos limi‐ naires sur le prestige du modèle américain”, 45 Arch. Phil. Droit (2001) 29-36.

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competence to directly pass federal legislation on matters of state civil procedure (Whytock sub 1). In the EU, the legislative powers of the Union are restricted to cross-border litigation (Art. 81 TFEU) or to certain areas in which harmonization of domestic laws is considered as necessary for the proper functioning of the internal market (Art. 114 TFEU).3 Thus, con‐ trary to the classic examples of power-driven legal transplants – the recep‐ tion of Roman law, the spreading of the Code Napoléon in 19th century Europe –, the position of federal and European legislators towards domes‐ tic lawmakers and courts in the respective member states is actually rather limited.4 On such weak foundations, no comprehensive codification of civil procedure can be built. Here, the second classic explanation for legal transplants may come in‐ to play, the idea of "prestige". In the 20th century, the FRCP were, in com‐ parison with the previously existing state laws, widely regarded as the more modern, advanced approach to civil procedure, thus inspiring state legislatures to use the FRCP as models for local law reforms (Whytock sub 1). Can a similar effect of EU regulations and directives be observed or at least predicted for the EU? In this regard, one must be aware that the types of rules that may find their way into the laws of the member states differ between the US and the EU. While the US has established a fullfledged separate system of federal courts with their own set of procedural rules (the FRCP), the EU usually does not entrust the adjudication of civil matters to separate European courts, but to the judiciary of the member states. In cross-border litigation involving defendants domiciled in the EU, however, member states' courts must apply the Brussels Ibis Regulation (or other specific EU regulations, see infra D) rather than their au‐ tonomous laws on international civil procedure. Thus, one may ask whether, at least in this area, solutions developed within the European framework have found or may find their way, either by law reforms or

3 For a closer analyis of the EU's competences, see B. Hess, “Binnenverhältnisse im Europäischen Zivilprozessrecht – Grenzüberschreitende v. nationale Sachverhalte”, in J. von Hein and G. Rühl (eds), Kohärenz im Internationalen Privat- und Ver‐ fahrensrecht der Europäischen Union, Mohr Siebeck, 2016, 67, at 86 et seq.; with a special focus on private international law, see J. von Hein, “Art. 3 EGBGB”, in H. Oetker, R. Rixecker and F.J. Säcker (eds), Münchener Kommentar zum Bürger‐ lichen Gesetzbuch, C.H. Beck, 6th ed. 2015, Vol. 10, Art. 3 EGBGB, paras. 29–87, with further references. 4 For a more optimistic assessment, see B. Hess, supra n. 3, 87.

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through the work of courts, into the domestic rules on jurisdiction and recognition that remain applicable vis-à-vis third-states. Finally, one must not overlook the fact that in the modern research on legal transplants, the traditional categories of power and prestige have been refined considerably. First, examples both from environmental and capital market law show that US laws, in particular the laws of California and New York, have not spread globally because the US actually forced other nations by extraterritorial legislation or otherwise to adapt their laws to American standards.5 Rather, many non-US states voluntarily brought their domestic laws into line with American regulators' expectations be‐ cause it would be economically inefficient if non-US producers or listed companies had to comply with US standards in order to maintain access to one of the biggest markets in the world while, at the same time, keeping lower standards for products or shares that are meant to be traded only at home.6 Secondly, adapting to the laws of other states or laws passed at the federal or European level, respectively, may create so-called network ef‐ fects.7 A typical network effect is that users of a certain smartphone oper‐ ating system may derive benefits from the fact that there are many other customers employing the same program because this leads to more and probably better software being developed for their devices, an effect that is known as a "positive externality".8 In the context of civil procedure, ap‐ plying a single (or at least a similar) set of rules could facilitate the tasks of judges, lawyers and teachers. For judges, it may be easier to apply the same rules of civil procedure regardless of whether the case at hand is connected with the federal re‐ spectively European level or situated in the domestic context of litigation. In this regard, however, the difference between the court systems of the US and the EU must be kept in mind. In the US, a judge sitting in a state

5 For a closer discussion of the so-called “California effect” (discovered by D. Vogel, “Trading up and governing across: transnational governance and environmental protection”, 4 J. Eur. Pub. Pol. (1997) 556–571) on legal transplants see von Hein, supra n. 2, at 307–354. 6 Von Hein, supra n. 2, at 307–354. 7 On network effects in comparative law, see A. Ogus, “The Economic Basis of Legal Culture: Networks and Monopolization”, 22 Ox. J. Leg. Stud. (2002) 419–434; for a closer discussion in the context of receptions of foreign law, see von Hein, supra n. 2, at 364–366. 8 Cf. R. Richter and E. Furobotn, Neue Institutionenökonomik, Mohr Siebeck, 3rd. ed 2003, at 110.

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court will not enjoy immediate positive effects if the law of his or her state is adapted to the FRCP because as a state judge, he or she is not obliged to apply the FRCP anyway. Yet, this does not exclude indirect benefits: if lo‐ cal laws are brought into line with the FRCP, even state judges may find it easier to decide their cases because they can use literature and precedents that deal with the FRCP as persuasive evidence in interpreting their local laws as well − there is simply more literature and case-law on the FRCP than on the domestic procedural law of Arkansas, for example. In the EU, one must bear two things in mind: Firstly, the fact that Euro‐ pean civil procedural laws are not applied by specialized European courts, but by ordinary member state judges, secondly, the traditional limitation of EU procedural law to cross-border litigation involving jurisdiction over defendants domiciled in the EU (Article 4(1) Brussels Ibis) or the recogni‐ tion and enforcement of member state judgments. For defendants domi‐ ciled outside of the EU or judgments rendered by third-state courts, au‐ tonomous civil procedural law remains applicable. Apart from certain family matters (e.g. with regard to maintenance claims), member state courts are usually not specialized in applying EU Regulations.9 Thus, member state judges have to acquire expertise with regard to both Euro‐ pean and domestic procedural laws. One major reform proposal that the European Commission had made in the course of recasting Brussels I was the extension of the Regulation's spatial scope to defendants domiciled in third-states.10 Such a step would have been justified by a number of good reasons:11 it would have contributed to preventing forum shopping, simpli‐ fied the application of rules on jurisdiction, recognition and enforcement,

9 On the problem of creating specialized courts with regard to claims falling under the EU Maintenance Regulation (Council Regulation (EC) No 4/2009 of 18 De‐ cember 2008 on jurisdiction, applicable law, recognition and enforcement of deci‐ sions and cooperation in matters relating to maintenance obligations, OJ 2009 L 7), see CJEU, cases C–400/12 and C-408/13, Sanders v. Verhaegen and Huber v. Huber, ECLI:EU:C:2014:2461. 10 On the Commission’s proposal (COM(2010) 748 final), see, e.g., J. Weber, “Uni‐ versal Jurisdiction and Third States in the Reform of the Brussels I Regulation”, 75 RabelsZ (2011) 619. 11 For a positive evaluation (on balance) of the Commission’s proposal, see, e.g., B. Hess, “Die Reform der EuGVVO und die Zukunft des Europäischen Zivilprozess‐ rechts”, 31 IPRax (2011) 125, at 127; Weber, supra n. 10, at 626; for detailed criti‐ cism, however, see, e.g., A. Dickinson, “Surveying the Proposed Brussels Ibis Regulation: Solid Foundations but Renovation Needed”, 12 Yb. Priv. Int. L. (2010) 247, at 272 et seq.

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and it would have ended the dubious discrimination against third-state de‐ fendants that is the result of giving a European “full faith and credit” to judgments against such defendants even if those decisions are rendered in exorbitant fora under domestic laws. Moreover, it would have meshed well with the approach of European regulations on private international law, which, as lois uniformes, apply to conflicts between Member State laws and the laws of other, third States as well.12 Nevertheless, this pro‐ posal largely failed, mainly because of political objections: extending Brussels I to third-state defendant was considered as “premature”13 and it was feared that the EU would tie its hands with regard to further attempts in The Hague to arrive at compromises with non-member states on such issues.14 Thus, German judges, for example, still have to apply two differ‐ ent sets of rules in cross-border litigation, one for defendants domiciled in the EU (Brussels Ibis), another one for defendants domiciled in third states (the German Zivilprozessordnung or Code of Civil Procedure). This is not only an additional burden on judges, but also on lawyers and academic teachers. On the other hand, the latter two groups – as legal advisors or experts – may also gain some benefits from possessing specific local knowledge that is not available from lawyers or academics in other mem‐ ber states. Leaving such a desire for rent-seeking out of the equation, how‐ ever, bringing international civil litigation against third-state defendants in line with Brussels Ibis would facilitate the adjudication of international disputes as well as giving legal advice and developing a coherent academ‐ ic curriculum. Thus, I will examine in the following part whether we have actually seen a trickling down of European rules of civil procedure into the domestic legal systems, either by the legislature or by the courts.

12 See, e.g., on Article 2 Rome I Regulation, J. von Hein, in T. Rauscher (ed), Eu‐ ropäisches Zivilprozess- und Kollisionsrecht, Otto Schmidt, 2016, Article 2 Rome I, paras. 1 et seq. 13 See T. Zwiefka, Draft Report on the proposal for a regulation of the European Par‐ liament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), 28.6.2011, PE 467.046, avail‐ able at http://www.europarl.europa.eu, p. 23. 14 See the discussion paper presented by the Danish Presidency in January 2012, sub no. 4 (http://eu2012.dk/en/Meetings/Informal-Meetings/Jan/~/media/Files/Infor‐ mal%20 ministerial%20meetings/Informal%20JHA/Discussion%20paper%204%20%20Brussels%20I-Regulation.pdf).

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(C) The trickling down of European rules of civil procedure into the domestic legal systems (1) Through domestic legislation (a) Recognition and enforcement of third-state judgments Examples for a voluntary extension of European legal concepts to au‐ tonomous civil procedure can be found in the German law on the recogni‐ tion and enforcement of foreign judgments. Insofar as there are no prevail‐ ing international conventions (such as the Lugano convention of 200715 or bilateral conventions, such as the treaty between Germany and Israel of 197716), the recognition and enforcement of third-state judgments are gov‐ erned by sections 328, 723 of the German Code of Civil Procedure (ZPO).17 In the course of a major reform of German private international law in 1986,18 these provisions were recast not least in order to be better aligned with the Brussels Convention of 1968.19 This desire to achieve an harmonious solution led to the introduction of a new ground for refusing the recognition and enforcement of a foreign judgment if it was incompati‐ ble with a domestic judgment or an earlier third-state judgment capable of recognition in Germany (§ 328(1) No. 3 German Code of Civil Proce‐ dure); this new rule was directly inspired by Article 27(3) of the Brussels Convention (today Article 45(1)(c) and (d) Brussels Ibis).20 It deviated from Article 27(3) Brussels Convention insofar, however, as already the fact that the domestic procedure had been instituted earlier than the for‐ eign one would suffice to bar recognition.

15 OJ 2009 L 147. 16 Bundesgesetzblatt (BGBl., Federal Law Gazette) 1980, part II, p. 926. 17 Code of Civil Procedure as promulgated on 5 December 2005 (Bundesgesetzblatt 2005, part I, p. 3202; 2006 I p. 431; 2007, part I, p. 1781), as amended, translated by Dr. Carmen von Schöning, available at https://www.gesetze-im-internet.de/ englisch_zpo/englisch_zpo.html. 18 Gesetz zur Neuregelung des IPR, Bundesgesetzblatt 1986, part I, p. 1142. 19 Bundesgesetzblatt 1972, part II, p. 773; 1973, part II, p. 60. 20 Cf. Bundestags-Drucksache 10/504, at 88.

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(b) Public policy Moreover, European approaches influenced the drafting of the public poli‐ cy clause (§ 328(1) No. 4 German Code of Civil Procedure). The reformu‐ lation of the public policy clause was primarily motivated by the desire to bring § 328(1) No. 4 German Code of Civil Procedure in line with Article 6 of the German Introductory Act to the Civil Code (EGBGB).21 As this latter provision had been inspired by Article 16 of the Rome Convention on the law applicable to contractual obligations,22 however, this also led to an indirect "Europeanization" of the procedural public policy clause. In this regard, the German legislators were actually ahead of their time. In its reasons for the draft act, the government pointed out that the proposed § 328(1) No. 4 German Code of Civil Procedure was formulated stricter than Article 27(1) Brussels Convention insofar as the latter provision – un‐ like Article 16 of the Rome Convention – did not contain the requirement that any violation of public policy must be of a "manifest" nature in order to be relevant.23 This divergence was cured, however, by Article 34(1) of the Brussels Regulation of 200124 (now: Art. 45(1)(a) Brussels Ibis). A further deviation from the wording of the formulation of the Brussels Con‐ vention and today's Brussels Ibis Regulation lies in the fact that § 328(1) No. 4 German Code of Civil Procedure explicitly emphasizes that a for‐ eign judgment is regarded as incompatible with German public policy es‐ pecially when it violates the fundamental rights enshrined in the German Constitution, the Basic Law of 1949, while Article 45(1)(a) Brussels Ibis neither contains an explicit reference to the Charter of Fundamental Rights nor to the European Convention on Human Rights (but cf. Recital 38 Brussels Ibis). Yet already the legislators in 1986 did not expect that this formal divergence would lead to substantially different outcomes in the practical application of the respective public policy clauses.25 In the Ger‐ man academic literature, it is emphasized that, in spite of slightly different drafting, both § 328(1) No. 4 German Code of Civil Procedure and Article 45(1)(a) Brussels Ibis protect the same German public policy and that

21 22 23 24 25

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Bundestags-Drucksache 10/504, at 88 et seq. See von Hein, supra n. 3, Art. 6 EGBGB, para. 12. Bundestags-Drucksache 10/504, at 89. Regulation EC No. 44/2001, OJ 2001 L 12. Bundestags-Drucksache 10/504, at 89.

Comments on Christopher A. Whytock, Harmonization of EU Procedural Law

there will usually be no difference in applying the respective provisions.26 It is occasionally considered, however, whether mutual trust among the member states of the Brussels Ibis Regulation may lead to a more restric‐ tive application of Article 45(1)(a) Brussels Ibis in comparison with § 328(1) No. 4 German Code of Civil Procedure.27 Although it is true that the CJEU may define the boundaries of public policy only with regard to Article 45(1)(a) Brussels Ibis and not as far as § 328(1) No. 4 German Code of Civil Procedure is concerned,28 the prohibition of review on the merits in § 723(1) Code of Civil procedure, which corresponds to Article 52 Brussels Ibis,29 and the equally restrictive case-law of the German Fed‐ eral Court of Justice do not seem to leave much room for any substantial divergence in this regard either.30 In addition, the case-law of the CJEU may be used in interpreting the domestic public policy clause in a thirdstate context as well.31 In sum, German legislation on public policy as a barrier to recognition and enforcement may be seen as a positive example of an alignment between European and domestic rules on civil procedure. (c) Service of documents A less positive example for harmonizing European and domestic rules is the formulation of improper service of documents as a ground for refusing recognition of a third-state judgment (§ 328(1) No. 2 German Code of Civil Procedure). This provision, too, was originally modelled on Art. 27(2) of the Brussels Convention.32 Firstly, the legislature dropped the previously existing limitation of this protective provision to defendants who were German citizens.33 Secondly, the drafters cited the Brussels

26 See in particular A. Junker, Internationales Zivilprozessrecht, C.H. Beck, 2nd ed. 2015, 32, paras. 16–18. 27 H. Linke and W. Hau, Internationales Zivilverfahrensrecht, Otto Schmidt, 6th ed. 2015, para. 13.34. 28 Cf. CJEU, case C-7/98, Krombach, ECLI:EU:C:2000:164; case C-619/10, Trade Agency, ECLI:EU:C:2012:531. 29 Cf. BGHZ 140, 395, 398 (citing Art. 34(3) Brussels Convention and Section 723(1) Code of Civil Procedure as more or less identical provisions). 30 Junker, supra n. 26, § 32, para. 17, citing to BGHZ 118, 312, 316 as an example. 31 Cf. Junker, supra n. 26, § 32, para. 18. 32 Bundestags-Drucksache 10/504, at 88. 33 Bundestags-Drucksache 10/504, at 88.

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Convention as proof for the need to codify a specific clause on the defen‐ dant's right to a fair hearing instead of having recourse to the general pub‐ lic policy clause in such cases.34 Yet complete harmony was not achieved. Whereas Article 27(2) of the Brussels Convention obliged the court in the requested state to examine, in the course of exequatur proceedings, ex offi‐ cio whether the documents instituting the proceedings had been properly served on the defendant, the German legislature deliberately opted for a less stringent approach;35 pursuant to § 328(1) No. 2 German Code of Civ‐ il Procedure, defects of service only have to be taken into account if the defendant explicitly raises this point. As Article 45(1)(b) Brussels Ibis now presupposes that the recognition of a judgment shall (only) be refused on the application of any interested party, this divergence has been, at least for practical purposes, overcome.36 Another difference remains, however. While § 328(1) No. 2 German Code of Civil Procedure was basically in line with the content of Article 27(2) Brussels Convention as it stood in 1986, the German provision was not updated when the European blueprint was transformed into Art. 34(2) of the Brussels I Regulation (today: Art. 45(1)(b) Brussels Ibis) in 2001. The new version of the provision cut off the ground for refusal when the defendant had failed to commence pro‐ ceedings to challenge the judgment in the state of origin although it was possible for him to do so. This omission has sparked an ongoing contro‐ versy in Germany as to whether this restriction can also be read into § 328(1) No. 2 German Code of Civil Procedure already de lege lata or whether a further reform of the domestic provision is necessary in order to realign German law with the European rule.37

34 Bundestags-Drucksache 10/504, at 88. 35 Bundestags-Drucksache 10/504, at 88. 36 Junker, supra n. 25, § 32, para. 21 correctly points out that when a party files an application for the refusal of recognition under Brussels Ibis, the court of the re‐ questing state is still obliged to examine service of process ex officio; yet it is hard to imagine that such an application is filed without this defense being raised (if available). 37 A vocal proponent for a “European” interpretation of § 328(1) No. 2 German Code of Civil Procedure is R. Geimer, in: R. Zöller (ed), Zivilprozessordnung, Otto Schmidt, 31st ed. 2016, § 328 ZPO, para. 163; for the still dominant opposing view, see OLG Bremen, FamRZ 2013, 808 (on the parallel provision in family matters, § 109(1) No. 2 FamFG); Junker, supra n. 26, § 32, para. 21; Linke and Hau, supra n. 27, para. 13.22.

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(2) Through domestic courts (a) In general The Brussels I (now: Brussels Ibis) Regulation and the German Code of Civil Procedure contain a number of jurisdictional rules that are, to a cer‐ tain extent, functionally similar although Brussels I did not serve as a model for the German rules, some of which date back to the 19th century. Both sets of procedural rules provide for contractual jurisdiction at the place of performance (Article 7(1) Brussels Ibis and § 29 ZPO) as well as for tort jurisdiction in the forum delicti commissi (Article 7(2) Brussels Ibis and § 32 ZPO), both restrict choice-of-court agreements concluded between professionals and consumers (Article 19 Brussels Ibis and § 29c(3) ZPO), and both contain rules on lis alibi pendens (Articles 29−34 Brussels Ibis and § 261 ZPO). Although the German legislature was not influenced by European procedural law in drafting the rules just cited, German courts may use the Brussels I or Ibis Regulation and the pertinent case-law of the CJEU as inspiration in interpreting autonomous law as well. (b) Place of performance in contractual litigation In spite of their functional similarity, several important differences remain between the place of performance within the meaning of Article 7(1) Brussels Ibis and its German counterpart in § 29 ZPO. First of all, the in‐ terpretation of the rules may diverge because courts have to follow an au‐ tonomous approach to characterization under Brussels Ibis, which, for ex‐ ample, leads to the characterization of a claim for culpa in contrahendo as principally non-contractual,38 while German law regards such claims as being contractual in nature.39 Moreover, German courts determine the place of performance under § 29 ZPO in light of the traditional lex causae approach that the CJEU still applies only with regard to Article 7(1)(a) Brussels Ibis;40 the more modern, autonomous definition of a place of per‐

38 CJEU, case C-334/00, Tacconi, ECLI:EU:C:2002:499. 39 Junker, supra n. 26, § 21 para. 11. 40 CJEU, case C-533/07, Falco Privatstiftung, ECLI:EU:C:2009:257, paras. 46 et seq.

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formance codified in Article 7(1)(b) Brussels Ibis for sales and services has, as a general rule, not yet found its way into German civil procedure.41 In spite of such divergences, the German Federal Court of Justice does not ignore European law in interpreting § 29 ZPO. The most vivid example for a trickling down of European solutions into German case-law is found with regard to determining the place of performance in case of flight can‐ cellations. As is well-known, the CJEU, in its Rehder / Air Baltic decision, had granted passengers a right to choose between the place of take-off and the place of destination.42 This approach was then transferred by the Ger‐ man Federal Court of Justice to § 29 ZPO in a case that concerned a carri‐ er domiciled in a third state.43 The court argued that the passenger’s claim for compensation was rooted in the EU Regulation on flight cancella‐ tions44 and not in the contract concluded with the carrier; therefore, the au‐ tonomous solution developed by the CJEU should apply rather than the traditional lex contractus approach.45 The court also argued that such a streamlining of the domestic and the European approach would support the policy pursued by the European legislature in the Flight Annulment Regulation vis-à-vis third-state defendants.46 (c) Choice-of-court agreements with consumers A similar line of reasoning was followed by the Federal Court of Justice with regard to choice-of-court agreements concluded between German consumers and professionals domiciled in third states.47 In the case at hand, a German consumer had concluded a contract with a company from the Duchy of Liechtenstein, a tiny state that is neither a member of the EU nor of the Lugano Convention. The contract included a choice-of-court

41 BGHZ 188, 85 = NJW 2011, 2056, para. 29; in favour of an autonomous ap‐ proach, see H. Schack, Internationales Zivilverfahrensrecht, C.H. Beck, 6th ed.2014, para. 301. 42 CJEU, case C-204/08, Rehder, ECLI:EU:C:2009:439. 43 BGHZ 188, 85 = NJW 2011, 2056. 44 Regulation establishing common rules on compensation and assistance to passen‐ gers in the event of denied boarding and of cancellation or long delay of flights, OJ 2004 L 46/1. 45 BGHZ 188, 85 = NJW 2011, 2056, paras. 32–34. 46 BGHZ 188, 85 = NJW 2011, 2056, para. 34. 47 BGHZ 203, 140 = NJW 2015, 169.

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agreement in favour of the courts of Liechtenstein. Nevertheless, the con‐ sumer had sued the professional in Germany. The extension of consumerprotecting rules of jurisdiction that is nowadays found in Article 18(1) in conjunction with Article 6(1) Brussels Ibis was, for intertemporal reasons, not yet applicable in this case. Thus, the Federal Court of Justice had to decide whether the restrictive criteria enumerated in § 29c(3) ZPO (change of consumer’s domicile or unknown domicile) limited only choice-ofcourt agreements in cases where the consumer was sued by the profession‐ al or also, as in the case at hand, vice versa. The Court answered the question in the affirmative, explicitly referring to Article 17 Brussels I (now Article 19 Brussels Ibis) as a source of inspiration.48 In particular, the Court argued that there were not any hints that the German legislature had intended to create a lower level of consumer protection with regard to third-state cases than in intra-EU constellations.49 (d) Violations of personality rights via the internet According to the settled case-law, § 32 ZPO is, just like Article7(2) Brus‐ sels Ibis,50 interpreted in light of the principle of ubiquity, i.e. that both the place of acting as well as the place of injury may confer jurisdiction on a court in cases concerning violations of personality rights.51 With regard to violations of personality rights committed via the internet, however, the BGH has considerably modified this conventional approach in recent judgments.52 The court stresses that accepting mere accessibility as a suf‐ ficient requirement would lead to an unrestricted expansion of jurisdiction that would contradict basic notions of procedural fairness.53 Such an ap‐ proach would be incompatible with the nature of § 32 as an exception from the basic rule of “actor sequitur forum rei” (§ 12 ZPO), which there‐

48 BGHZ 203, 140 = NJW 2015, 169, para. 25. 49 BGHZ 203, 140 = NJW 2015, 169, para. 25. 50 See the survey by J. von Hein, “Protecting Victims of Cross-Border Torts under Article 7 No. 2 Brussels Ibis: Towards a More Differentiated and Balanced Ap‐ proach”, 16 YbPIL (2014/2015) 241-274, with further references. 51 BGHZ 184, 313 = NJW 2010, 1752, para. 8; BGH, NJW 2011, 2059, para. 7. 52 BGHZ 184, 313 = NJW 2010, 1752, paras. 11–24; BGH, NJW 2011, 2059, paras. 8–15; BGH, NJW 2012, 148, para. 11; BGHZ 197, 213 = NJW 2013, 2348, para. 7. 53 BGHZ 184, 313 = NJW 2010, 1752, paras. 12 et seq.

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fore must be given a restrictive interpretation.54 In particular, the BGH points out that any interpretation of § 32 ZPO in internet cases must en‐ sure that a potential defendant should be able to reasonably foresee where he or she might be sued.55 This is especially important taking into account that accepting international jurisdiction under § 32 ZPO indirectly deter‐ mines the applicable law as well because Art. 40 EGBGB also subjects tortious claims to the law in force at either the place of acting or the place of injury.56 Thus, the BGH has developed an objective test that is focused on the question as to whether the allegedly infringing content has a significant connection with Germany; a connection that is defined as a real or poten‐ tial collision of conflicting interests between the plaintiff (i.e. his personal‐ ity right) and the defendant (i.e. freedom of speech on the web).57 Insofar, it is necessary to take the substantial content of a publication into ac‐ count.58 In the “New York Times” decision, the BGH argued that the plaintiff was domiciled in Germany, had a company in Germany and was under investigation by German prosecutors.59 Moreover, the online edition of the New York Times is a publication that is not only read in the U.S., but directed at a worldwide audience; at the time of the suit, it had 14484 subscribers in Germany.60 The fact that the article was published in the “Metropolitan Desk” section of the Times was regarded as irrelevant be‐ cause the article referred to international crime with ties to Germany, the Ukraine and Russia and not merely to local New York incidents;61 more‐ over, even an article published in the local section may be found easily by German visitors using the search function on the NYT website.62 In sum, there was at least an arguable case that the plaintiff’s reputation in Ger‐ many might suffer damage as a result of the article published in the New York Times.63 On the contrary, the BGH denied a sufficient connection

54 55 56 57 58 59 60 61 62 63

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BGHZ 184, 313 = NJW 2010, 1752, para. 17; BGH, NJW 2011, 2059, para. 10. BGHZ 184, 313 = NJW 2010, 1752, para. 17; BGH, NJW 2011, 2059, para. 10. BGHZ 184, 313 = NJW 2010, 1752, para. 17; BGH, NJW 2011, 2059, para. 10. BGHZ 184, 313 = NJW 2010, 1752, para. 20. BGHZ 184, 313 = NJW 2010, 1752, para. 20. BGHZ 184, 313 = NJW 2010, 1752, para. 21. BGHZ 184, 313 = NJW 2010, 1752, para. 22. BGHZ 184, 313 = NJW 2010, 1752, para. 24. BGHZ 184, 313 = NJW 2010, 1752, para. 24. BGHZ 184, 313 = NJW 2010, 1752, para. 24.

Comments on Christopher A. Whytock, Harmonization of EU Procedural Law

with Germany in the subsequent case “Seven days in Moscow”.64 The BGH pointed out that a blog entry dealing with the private life of the plaintiff on the occasion of a class reunion in Moscow was hardly accessi‐ ble to average readers in Germany because it was written in Russian lan‐ guage and Cyrillic letters;65 moreover, the contents of the report were of interest merely for other classmates who were still living in Russia but of no importance to a wider audience in Germany.66 Since § 32 ZPO is rooted in concerns for a fair and efficient administration of justice, in particular by granting jurisdiction in a place where relevant evidence may be locat‐ ed, allowing the plaintiff to sue the defendant – who was habitually resi‐ dent in the U.S. – in Germany would not further those aims.67 The mere fact that the plaintiff was habitually resident in Germany did not suffice to establish jurisdiction because the BGH considered this criterion as leading to purely accidental, even arbitrary results.68 It must be pointed out that the test developed by the BGH for § 32 ZPO differs from the localization of the place of injury adopted by the CJEU for Article 5(3) Brussels I (now Art. 7(2) Brussels Ibis) in eDate.69 In the latter decision, the CJEU states “that the impact which material placed on‐ line is liable to have on an individual’s personality rights might best be as‐ sessed by the court of the place where the alleged victim has his centre of interests, the attribution of jurisdiction to that court corresponds to the ob‐ jective of the sound administration of justice […]. The place where a per‐ son has the centre of his interests corresponds in general to his habitual residence.”70 Although both courts focus on some variant of interest ana‐ lysis, there is an important distinction: whereas the CJEU focuses on a generally defined “centre of interests” which is usually located at the plaintiff’s habitual residence, the BGH does not consider the habitual resi‐ dence of the plaintiff as such as a decisive factor; rather, the German court

64 BGH, NJW 2011, 2059 – “Seven days in Moscow”. 65 BGH, NJW 2011, 2059, para. 15; the same reasoning has been applied by LG Düsseldorf IPRspr. 2013 no. 228 to a publication in Dutch (wrongly, because § 32 ZPO was not applicable in this Brussels I case). 66 BGH, NJW 2011, 2059, para. 12. 67 BGH, NJW 2011, 2059, para. 13. 68 BGH, NJW 2011, 2059, para. 14. 69 CJEU, cases C-509/09 (eDate) and C-161/10 (Martinez), ECLI:EU:C: 2011:685, paras. 48 et seq. 70 CJEU, cases C-509/09 (eDate) and C-161/10 (Martinez), ECLI:EU:C:2011:685, paras. 48 et seq.

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focuses on the collision of interests that is evaluated in light of the content of a specific publication. If “Seven days in Moscow” were an intra-EU case, it would be highly likely that the CJEU would accept jurisdiction of German courts because the place of injury (understood as the habitual resi‐ dence of the plaintiff) would have to be localized here. In its follow-up de‐ cision on eDate, the BGH remained faithful to the CJEU’s formula in ap‐ plying Article 5(3) Brussels I, localizing the place of injury at the plain‐ tiff’s habitual residence.71 In this case, however, the “collision-of-inter‐ ests” test developed under § 32 ZPO would not have led to a different re‐ sult, because the article published on an Austrian webpage was written in German and dealt with a widely reported and still well-known German criminal case involving the murder of a popular German actor. Insofar, the question arises whether one can observe some kind of re‐ alignment between the jurisdictional tests employed under Article 7(2) Brussels Ibis and § 32 ZPO by German courts in the subsequent case-law. In the first BGH decision on § 32 ZPO with regard to personality rights after eDate, however, the German court did not transpose the test de‐ veloped by the CJEU to autonomous German procedural law.72 In its “Au‐ tocomplete”-decision, the BGH emphasized that it is not sufficient, in or‐ der to establish jurisdiction under § 32 ZPO, that the plaintiff has his cen‐ tre of interests in Germany;73 rather, it is necessary that the allegedly in‐ fringing content has a significant connection with Germany, that is again defined as a real or potential collision of conflicting interests.74 In the case at hand, however, the BGH affirmed the existence of such a collision in Germany: Because of Google’s “autocomplete” function, it was signifi‐ cantly more likely that German users of this search engine would take note of the allegedly infringing content (suggesting that the plaintiff was linked to “Scientology” and “fraud”).75 The lower courts as well continue to ap‐ ply the German “New York Times”-test rather than the European “eDate”test to cases falling under § 32 ZPO.76 In a clearly erroneous decision, the

71 72 73 74 75 76

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BGH, NJW 2012, 2197, para. 18. BGHZ 197, 213 = NJW 2013, 2348, para. 7 – “Autocomplete”. BGHZ 197, 213 = NJW 2013, 2348, para. 7. BGHZ 197, 213 = NJW 2013, 2348, para. 7. BGHZ 197, 213 = NJW 2013, 2348, para. 7. OLG München, NJW-RR 2016, 162, para. 5; LG Münster, IPRspr. 2013 no. 226; LG Heidelberg, Multimedia und Recht 2015, 348 para. 32; LG Köln, Multimedia und Recht 2016, 213.

Comments on Christopher A. Whytock, Harmonization of EU Procedural Law

LG Düsseldorf even applied § 32 ZPO (instead of Article 5(3) Brussels I) in a case involving a defendant domiciled in the Netherlands.77 (e) Negative declaratory action and lis alibi pendens A classic example for a divergence between the European law of civil pro‐ cedure and its German counterpart is found in the relationship between a negative declaratory action and a subsequent action for performance. Whereas the traditional German approach under § 261(3) ZPO has been that even a later action for performance prevails, unless the negative declaratory action is ripe for decision,78 the CJEU has, in its settled caselaw, decided that a previously filed negative declaratory action bars a sub‐ sequent action for performance.79 The well-known drawback of the Euro‐ pean approach is the danger of the so-called “Italian torpedo”, 80 a prob‐ lem that has only partially been solved by Article 31(2) Brussels Ibis. Up to now, the Federal Court of Justice has resisted any attempt to transpose the European approach to the interpretation of § 261(3) ZPO.81 Under Brussels Ibis, the problem of lis alibi pendens with regard to third states will have to be solved within the new Article 33. On the one hand, the identity of the claim within the meaning of Article 33(1) Brussels Ibis must be interpreted in accordance with the CJEU’s case-law on Article 29(1) Brussels Ibis;82 on the other, the fact that the necessary prognosis with regard to a recognition of an ensuing third-state judgment (Article 33(1)(a) Brussels Ibis) remains subject to § 328(1) no. 3 ZPO (cf. Recital 23 Brussels Ibis) as well as the discretion conferred on the member state

77 LG Düsseldorf, IPRspr. 2013 no. 228. 78 BGH, NJW 1994, 3107, 3108; BGH, NJW-RR 2013, 1105; see also R. Greger, in: R. Zöller, supra n. 37, § 261 ZPO, para. 16, with further references. 79 CJEU case C-406/92, Tatry, ECLI:EU:C:1994:400, paras. 46–48; case C-533/08, TNT Express Nederland BV, ECLI:EU:C:2010:243, para. 56. 80 See J. Kropholler and J. von Hein, Europäisches Zivilprozessrecht, Verlag Recht und Wirtschaft, 9th ed. 2011, Art. 27 Brussels I, para. 10. 81 BGH, NJW-RR 2013, 1105. 82 R. Fentiman, in: U. Magnus and P. Mankowski (eds), European Commentaries on Private International Law: Brussels Ibis Regulation, Otto Schmidt, 2016, Articles 33, 34, para. 7.

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court pursuant to Article 33(1)(b) Brussels Ibis leave room for a more dif‐ ferentiating approach.83 (3) Conclusion The foregoing survey of examples from Germany has shown that even in areas which have not yet been formally unified by European legislation, domestic legislators and courts frequently have recourse to the Brussels I (now Brussels Ibis) Regulation as an important source for inspiration. There are some exceptions where solutions developed by the CJEU (Tatry, eDate) have apparently failed to persuade German courts to give up their previous approaches. Generally speaking, however, an open-minded atti‐ tude towards using Brussels I (now Brussels Ibis) as guidance in interpret‐ ing domestic rules on cross-border litigation can be observed that is highly welcome because it contributes to a better mutual integration of European and domestic laws. This process of "soft" legal transplantation creates greater efficiency for legal practitioners, who have to apply different, but functionally similar rules; moreover, a realignment between domestic and European law helps to avoid a discrimination against third-state defen‐ dants because even judgments based on domestic grounds for jurisdiction profit from unionwide automatic recognition and enforcement under Brus‐ sels Ibis. Nevertheless, any spontaneous or autonomous "bottom-up" process of harmonization remains limited and insecure. Divergences between intraEU and domestic-third-state litigation may remain even in areas in which there is no substantial justification for them. Moreover, as Article 81 TFEU is limited to cross-border cases, the process of legal transplantation that I have just described will not lead to a harmonization of other areas of procedural law, in particular the way that a process is actually conducted (fact gathering, case management etc.). Thus, a more robust approach to harmonization may be appropriate in the EU than in the US. As Article 114 TFEU is restricted to measures that serve the purposes of the internal

83 Cf. P. Schlosser, in P. Schlosser and B. Hess, EU-Zivilprozessrecht, C.H. Beck, 4th ed. 2015, Articles 33, 34 Brussels Ibis, para. 4: settled case-law on § 261 ZPO may be used in order to forecast whether a third-state judgment will be recognizable in Germany.

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market, however, the room for such top-down harmonization seems rather narrow.84 (D) Top-down harmonization Apart from the Brussels Ibis Regulation, the European legislature has de‐ veloped a number of optional procedures for cross-border cases, such as the regulations on European Small Claims,85 the European Payment Or‐ der86 or the Order for Uncontested Claims.87 These regulations have all abolished the necessity of exequatur – including public policy review88 – while, on the other hand, establishing some minimum standards. These standards, however, are rather limited in their scope because they mainly refer to service of process (see in particular Articles 12–19 of the Regu‐ lation on an Order for Uncontested Claims) or the taking of evidence (Ar‐ ticle 9 of the Small Claims Regulation) and leave other areas of domestic procedure largely untouched. Another drawback of the multiplication of optional instruments lies in the increased complexity of procedural law both for courts and litigants. In addition, there are scattered directives that address specific topics of civil procedure in cross-border matters, such as the Legal Aid Directive89 and the Mediation Directive.90 A different approach consists in the sectoral harmonization of procedu‐ ral law by way of directives related to substantive EU competences. In this

84 But see B. Hess, supra n. 3, at 87, who points out that the EU legislature tends to interpret this competence rather broadly. On the inherent limits of Art. 114 TFEU (Art. 95 EC), cf. (in the context of company law), CJEU, case C-436/03, European Cooperative Society (SCE), ECLI:EU:C:2006:277. 85 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, OJ 2007 L 199. 86 Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure, OJ 2006 L 339. 87 Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, OJ 2004 L 143. 88 BGHZ 201, 22. 89 Directive 2003/8/EC, OJ 2003 L 26. 90 Directive 2008/52/EC, OJ 2008 L 136.

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regard, one may mention consumer rights (Injunctions Directive91, ADR Directive92), intellectual property (Directive on Enforcement of IP rights93) and the Antitrust Damages Directive.94 Concentrating efforts on selected areas related to substantive law may enhance the prospects of suc‐ cess, but such an approach may also contribute to a lack of doctrinal co‐ herence with regard to the law of civil procedure in general. Moreover, a sectoral approach focused only on group actions in antitrust matters, for example, may create gaps in other areas that are hard to justify from a sub‐ stantive policy perspective, e.g. with regard to group actions in product li‐ ability cases (see, e.g., the French-German breast implant [PIP] case).95 In sum, the restriction of top-down harmonization to either cross-border litigation or certain areas connected with substantive EU policies may fa‐ cilitate the achievement of legislative results in the short term; in the long run, however it may endanger the doctrinal coherence of procedural law and make this area of law increasingly difficult to survey for legal practi‐ tioners. (E) "Full faith and credit" and mutual trust An alternative route to harmonizing the procedural laws of the member states could consist in setting up minimum standards as a precondition for

91 Directive 2009/22/EC on injunctions for the protection of consumers' interest, OJ 2009 L 110. 92 Directive 2013/11/EU on consumer Alternative Dispute Resolution, OJ 2013 L 165. 93 Directive 2004/48/EC on the enforcement of intellectual property rights, OJ 2004, L 157. 94 Directive 2014/104/EU on certain rules governing actions for damages under na‐ tional law for infringements of the competition law provisions of the Mem‐ ber States and of the European Union, OJ 2014 L 349; on the debate concerning collective redress, see the surveys by L. Gorywoda, N.E. Hatzimihail and A. Nuyts, “Introduction: Market Regulation, Judicial Cooperation and Collective Redress”, in: A. Nuyts and N.E. Hatzimihail (eds), Cross-Border Class Actions – The European Way, Sellier, 2014, 1; A. Stadler, “European Developments in Col‐ lective Redress”, EuVR 2014, 80. 95 BGH, NJW 2015, 2737; on this case, see B. v. Leeuwen, “La responsabilité des organismes notifiés du fait d’implants mammaires défectueux: TÜV Rheinland de‐ vant les tribunaux français et allemands”, 29 RIDE (2015) 69; P. Rott and C. Glin‐ ski, “Le scandale PIP devant les juridictions allemandes”, 29 RIDE (2015) 87.

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mutual trust, thus allowing to dispense with public policy as a barrier to recognition of foreign judgments.96 The problem inherent in this approach is that public policy is not focused on the question whether the procedural standards in the country of origin are by and large adequate, but rather on the violation of an accepted procedural standard in a specific case.97 Thus, even if an agreement on high standards as far as the "law on the books" is concerned may be reached among EU member states, this will not be suf‐ ficient to actually create mutual trust if the "law in action" does not live up to legitimate expectations (e.g. because of corruption in a given member state). Therefore, the elaboration of minimum standards must be accompa‐ nied by the development of best practices, ethical standards, and a contin‐ ued training of judges and lawyers. (F) The political dimension Last but not least, the political dimension of harmonizing procedural law must not be neglected. Far from being technical matters, issues such as in‐ troducing some kind of class action into the law of the member states are hotly contested, e.g. in Germany.98 Focusing on certain substantive areas of law ("private law enforcement" in cartel damages cases, for example) may increase the political momentum to achieve harmonization, but it may also raise additional obstacles (e.g. if proposals are perceived as being ex‐ cessively pro-consumer or pro-business). Apart from that, the political pressure of lawyers interested in harmonization or unification of procedu‐ ral law is probably lower in the EU than in the US because of language barriers and different legal cultures.

96 For surveys of this ongoing debate, see, e.g., M. Linton, “Abolition of Exequatur, All in the Name of Mutual Trust!”, in B. Hess, M. Bergström and E. Storskrubb (eds), EU Civil Justice, Hart 2016, 257; M. Weller, “Mutual trust: in search of the future of European private international law”, 11 J. Priv. Int. L. (2015) 64. 97 Kropholler and von Hein, supra n. 80, Article 34 Brussels I, paras. 13–16, with further references. 98 See the contributions in C. Brömmelmeyer (ed), Die EU-Sammelklage, Nomos, 2013; P. Behrendt and D. Freiin v. Enzberg, “Auf dem Weg zur Class Action in Europa?”, 60 RIW (2014) 253.

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(G) Conclusion In sum, the emulation of the US FRCP by state legislation is, generally speaking, not a model for the EU because the EU simply does not have a system of separate European courts applying their own procedural rules. Nevertheless, an open-minded attitude towards using European regula‐ tions as guidance in interpreting domestic rules may contribute to a better mutual integration of European and domestic laws on cross-border litiga‐ tion. Actual "top-down" harmonization of EU civil procedure is, apart from cross-border litigation, so far limited to certain areas connected with substantive EU policies (consumer protection, IP rights, antitrust). The US American notion of "full faith and credit" is certainly an inspiration for the concept of "mutual trust". Yet, given considerable divergences that still exist between the domestic legal systems in the EU, the time has not come for abolishing public policy, as the recast of the Brussels I Regulation has shown. Last but not least, American experiences in areas of private en‐ forcement and alternative dispute resolution are, from a comparative point of view, vital to future EU legislation, but should not be adopted without a critical review and necessary adaptations to the EU context.

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From Drafting Common Rules to Implementing Electronic European Civil Procedures: The Rise of e-CODEX Marco Velicogna, Giampiero Lupo Researchers, Research Institute on Judicial systems, National Research Council of Italy (IRSIG-CNR)

Summary: This paper explores the e-CODEX project in its effort to de‐ velop a techno-legal system to pilot ‘live’ (involving real cases and real people) cross-border judicial procedures and ensure its long-term sustain‐ ability. It is the understanding of the authors that this experience goes far beyond that of developing a technological tool to support judicial proce‐ dures. This is because creating such a tool in the judicial domain, requires a reflection on key elements that ensure that procedures are juridically ef‐ fective in the off-line world, and how such elements need to be transposed in the digital domain. As there is not a perfect fit between the two domains and different judicial domains have different requirements, the developing process involves legal (and political) decision-making. Furthermore, as a result of the understanding of the procedures and of their problems gener‐ ated by developing such tools, and linked to the need to have the tools adopted by the users, actions are taken to influence not only the proce‐ dures themselves, but also their drafting approach. This is done for exam‐ ple addressing procedural off-line barriers both at implementation level, both influencing the EU legal instruments drafting/revision to reduce and supporting more semantic coherence. Finally, in its long-term sustainabili‐ ty effort, e-CODEX is becoming part of the EU political agenda and dis‐ course at the highest levels.

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Marco Velicogna / Giampiero Lupo

(A) Introduction1 In recent years, considerable effort has been made for the harmonisation of cross border judicial procedures in the EU with the aim of furthering judicial cooperation in civil and criminal matters. In particular, a number of directives, regulations and other legal instruments have been adopted to facilitate “the coordination between national rules (e.g. in the area of inter‐ national jurisdiction, recognition and enforcement,2 cross-border service of documents,3 and the taking of evidence),4 to harmonised procedures that provide an automatic recognition and enforcement of the judgment is‐ sued for certain types of civil and commercial matters (e.g. the European Order for Payment (EOP),5 the European Small Claims Procedure (ES‐

1 This paper has been produced with the financial support of the ICT PSP Programme of the European Union. The contents of this paper are the sole responsibility of the authors and can in no way be taken to reflect the views of the European Commis‐ sion. The authors ([email protected] and [email protected]) wish to thank all the e-CODEX team for the cooperation and in particular Christine Lewis for the many useful suggestions and Giulio Borsari for helping us navigate the many technical complexities of such a large project. 2 Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judg‐ ments in civil and commercial matters, in OJ 2012, L 351. Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims, OJ 2004, L 143. 3 Council Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000, OJ 2007, L 324. 4 Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, OJ 2001, L 174. 5 Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment procedure, OJ 2006, L 399.

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CP)6 and the European Account Preservation Order (EAPO)7)”,8 and in criminal matters to support between others, mutual legal assistance be‐ tween judicial and police authorities,9 mutual recognition of judicial deci‐ sions, extradition (EAW).10 Recently, the focus of the EU discourse has shifted from minimum standards and harmonized rules to the actual imple‐ mentation, application, and operationalization of such rules. Within this shift, e-Justice has risen to the attention of EU policy makers as a tool (or set of tools), which can be instrumental for the successful implementation of cross-border judicial procedures. Long-term European e-Justice strate‐ gies started to be drafted11 to place “information and communication tech‐ nologies (ICT) at the service of judicial systems […to improve] their func‐ tioning and contributing to a streamlining of procedures and reduction in costs”12, and with the practical intent to “create synergies of the initiatives at the European and national level”.13 As a concrete outcome of this effort, the EU Commission and a group of EU Ministries of Justice begun to de‐ velop an infrastructure to support the communication and the exchange of legal information in EU cross-border judicial procedures. This initiative

6 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing a European Small Claims Procedure, OJ 2007, L 199. 7 Regulation (EU) No. 655/2014 of the European Parliament and of the Council of 15 May 2014 establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters, OJ 2014, L 189. 8 M. Velicogna et al., “Simplifying access to justice in cross-border litigation, the national practices and the limits of the EU procedures. The service of documents example”, EGPA Conference (26-28 August 2015), Toulouse, France; see also M. Velicogna, G. Lupo, E.A. Ontanu, “Simplifying access to justice in cross-border litigation, the national practices and the limits of the EU procedures. The example of the service of documents in the order for payment claims”, IJPL (2017)1. 9 Convention on Mutual Assistance in Criminal Matters. 10 Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States (2002/584/JHA). 11 European Commission, Towards a European e-Justice Strategy, COM (2008), 329 final; European Commission, Strategy on European e-Justice (2014-2018), OJ 2013, C 376; European Council, Multiannual European e-Justice Action Plan 2014-2018, OJ 2014, C 182. 12 European Commission, Towards a European e-Justice Strategy, COM (2008), 329 final. 13 X.E. Kramer, “A European Perspective on E-Justice and New Procedural Models: Transforming the Face of Cross-Border Civil Litigation and Adjudication in the EU”, available at SSRN 2696978 (2015).

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took the form of an EU-Co-funded project called “e-Justice Communica‐ tion via Online Data Exchange” (e-CODEX). The focus of the present paper is on the experience of e-CODEX project in the development of the techno-legal system, which has allowed to pilot ‘live’ cross-border civil procedures. It is the understanding of the authors that this experience goes far beyond that of developing a techno‐ logical tool to support judicial procedures. This is because, on the one hand, creating such a tool in the judicial domain requires a reflection on key elements that ensure that procedures are juridically effective in the off-line world, and how such elements need to be transposed in the digital domain. As there is not a perfect fit between the two domains and differ‐ ent judicial domains have different requirements, the developing process involves legal (and political) decision-making. And on the other hand, be‐ cause as a result of the understanding of the procedures and of their prob‐ lems generated by developing such tools and linked to the need of not only implementing them but having them adopted by the users, actions are tak‐ en to influence not only the procedures themselves (e.g. addressing proce‐ dural off-line barriers both at implementation level, both influencing the EU legal instruments drafting/revision), but also their drafting approach (e.g. in a more semantically coherent direction). In the attempt to provide a comprehensive picture of this emerging phe‐ nomenon, three topics are addressed by the paper: 1) the procedural tools created by the EU legislator and implemented by the EU Member States justice systems, 2) the development of e-CODEX solution, and 3) the far reaching effects that have been generated by such development process and by the drive to make the e-CODEX solution sustainable in the long term. (B) Research Methodology The procedural tools created by the EU legislator and implemented by the EU Member States justice systems have been analysed through several methodologies and data sources, including: 1) analysis of the relevant leg‐ islation and legal literature discussing it; 2) access to and analysis of the data collected during the Building Interoperability for European Civil Pro‐ ceedings Online (BIECPO) project, coordinated by IRSIG-CNR, which investigated the legal Interoperability topic with a specific focus on the European Payment Order and on the European Small Claims Procedures 184

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both from a legal and organizational perspective and through the use of simulations with the cooperation of a real court; 3) access to and analysis of the data collected within the e-CODEX project on the EU cross-border judicial procedures related topics which emerged as problematic during the project piloting preparation and implementation phases.14 The experience of the e-CODEX project is investigated through a case study approach. The case study approach has shown to be the most effect‐ ive way to study the large scale ICT phenomena in the broad area of jus‐ tice.15 In general, in-depth case studies are the preferred strategy when “how”, “who” or “in which way” questions are being dealt with, when the researcher/author has little control over events, and when the focus is on a contemporary phenomenon within some real-life context.16 These ele‐ ments characterize the investigation of large scale ICT innovation. Fur‐ thermore, the in-depth case study methodology allows the use of an inter‐ disciplinary approach, which is particularly relevant in an area where mul‐ tiple factors (such as legal, institutional, technological and practical) are deeply intertwined.17 For what regards the analysis of the e-CODEX casestudy, data have been collected through an analysis of the relevant docu‐ mentation developed by the project (project Deliverables, reports, meeting minutes), both through the longitudinal and participant observation of the project development. The participant observation methodology here uti‐ lized reflects the principles of the interpretive ethnography approach. This method largely explores phenomena within a particular cultural and con‐ textual setting from the perspective of the informants.18 The ethnographic research involves lengthy and extended fieldwork among informants and

14 As an example, a questionnaire was circulated between e-CODEX project partners to investigate the service of documents in national ordinary, simplified and Euro‐ pean civil procedures, which collected replies on 14 EU justice systems from their Ministry of Justice or their representatives within the project. 15 R.J. Teixeira et al., “Risk factors in e-justice information systems”, 30 Govern‐ ment Information Quarterly (2013) 241; M. Velicogna, “Justice Systems and ICTWhat Can Be Learned from Europe”, 3 Utrecht L. Rev. (2007) 129. 16 R.K. Yin, Case study research, design and methods, Sage publications, 2013. 17 M. Velicogna et al., “e-Justice in France: the e-Barreau experience”, 7 Utrecht L. Rev. (2011) 163. 18 M. Myers, “Investigating information systems with ethnographic research”, Com‐ munications of the AIS (1999) 2(4es) 1.

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therefore allows the researcher to get a privileged view of the action.19 Several recent ICT-related studies clearly utilized an ethnographic orienta‐ tion,20 also in the e-justice field.21 In the case of e-CODEX analysis, our approach is clearly ethnographic due to our involvement as researchers of a research institute partner (IRSIG-CNR22) in the e-CODEX project. Be‐ ing involved in the project, we could easily gather data for the research not only through the analysis of documentation but also through face-to-face contact, participant observation and informal interviews. (C) European Civil Procedures As mentioned in the introduction, the European Union has introduced a number of laws to help individuals and businesses to deal with the topic of cross-border litigation. This section focuses on the two procedural tools which have been designed to simplifying cross-border debt recovery, the European Order for Payment (Regulation 1896/2006, applicable since De‐ cember 2008) and the European Small Claims Procedure (Regulation 861/2007, applicable since January 2009). They are the first examples in which the EU legislator “tried to propose an autonomous model of rules governing civil proceedings”23 which applies to all Member States of the European Union,24 as before, only specific aspects of cross-border civil

19 J. Van Maanen, Tales of the field: On writing ethnography, University of Chicago Press, 2011; R. Shankar et al., “A collaborative framework to minimise knowledge loss in new product development”, 51 International Journal of Production Re‐ search (2013) 2049. 20 N. Rangaswamy and S. Nair, “The mobile phone store ecology in a Mumbai slum community: Hybrid networks for enterprise”, 6 Information Technologies & Inter‐ national Development (2010) 51. 21 G. Lupo, “Law, Technology and System Architectures: Critical Design Factors for Money Claim and Possession Claim Online in England and Wales”, in F. Contini and G.F. Lanzara (eds), The Circulation of Agency in E-Justice: Interoperability and Infrastructures for European Transborder Judicial Proceedings, Springer, 2014, 83; G. Lupo and J. Bailey, “Designing and Implementing e-Justice Systems: Some Lessons Learned from EU and Canadian Examples”, 3 Laws (2014) 353. 22 Research Institute on Justice Systems of the Italian National Research Council. 23 M. Mellone, “Legal Interoperability in Europe: The Cases of the European Pay‐ ment Order and the European Small Claims Procedure”, in F. Contini and G.F. Lanzara (eds), supra n. 21, 83. 24 With the exception of Denmark.

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proceedings such as jurisdiction, service of documents, gathering of evi‐ dences had been addressed.25 The European Payment Order applies to uncontested pecuniary claims, while the European Small Claims Procedure applies to cross-border claims of up to €2000 (excluding interests). They are intended as tools to provide to individuals “and businesses across EU the means for quicker, more effi‐ cient resolution of cross-border cases, by making it easier to enforce a claim against a defendant in another Member State”.26 What follows is a short description of the two procedures based on the letter of the regula‐ tions, on the descriptions provided by the EU justice portal and on the practice guides, that allows to evince the key simplification steps com‐ pared to alternative cross-border procedures. European Order for Payment covers cross-border uncontested mone‐ tary claims. It is designed as a written procedure, and uses seven standard forms which are set out in the Annex to the Regulation and which are available in all EU languages. It can be initiated by the claimant filling-in the application form, signing it and sending it by post to the competent court. The claimant must give the name and address of the parties, explain the case, show the cross-border nature of the claim and describe the evi‐ dence that supports the claim. Relevant documentation supporting the claim can be attached (receipts, invoices etc.). The procedure continues for as long as the defendant does not oppose the application. If the application is opposed, it becomes a contested case and it can be heard under the nor‐ mal national civil procedure rules of the seized court’s Member State. Once the court receives the application form it can ask the claimant, also through the use of forms, to complete, rectify or modify the application. The court then decides if rejecting the application or issuing a European Order for Payment (using a specific form). If the EOP is issued, depending on the seized court rules, the court or the claimant must then serve a copy of it. The defendant can pay the amount indicated in the EOP or oppose the order by lodging a statement of opposition (form) to the seized court within 30 days. If the order is not opposed, the court can declare the order enforceable (through a standard form). Similarly to the EOP procedure, the European Small Claims Procedure operates on the basis of four standard forms set out in the Annex to the 25 Mellone, supra n. 23. 26 Http://ec.europa.eu/civiljustice/publications/docs/guide_litiges_civils_transfrontal‐ iers_en.pdf (last visited 03/02/2016.).

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Regulation and which are available in all EU languages. It is a written pro‐ cedure unless an oral hearing is considered necessary by the court and it is initiated by the claimant filling-in a claim form, signing it and sending it (accompanied by relevant supporting documents) to the competent court. If the court considers the claim form to be inadequate, insufficiently clear or not properly filled in, it can ask the claimant to complete or rectify it. If the claim is not dismissed because the claim is clearly unfounded, the ap‐ plication inadmissible or the claimant has not integrated or rectified the claim, the court issue an answer form filled for the part of competence of the court. Depending on the seized court rules, the court or the claimant must then serve the answer form, a copy of the claim form, and eventual supporting documents to the defendant. The defendant can then submit the response within 30 days of service, by completing the filling of standard answer Form, adding eventual supporting documents. Counterclaim is also possible using a claim form, and follows the same procedure. Before giv‐ ing the judgment, the court can then request further details concerning the claim from the parties, take evidence in accordance with the applicable rules, or summon the parties to an oral hearing. After the judgment is giv‐ en, one of the parties can ask the court to issue a certificate concerning the judgment using standard Form. With such certificate and a copy of the judgment, the judgment is enforceable in the other Member States of the European Union. The procedures are clearly an attempt to simplify, speed up and reduce costs of litigation in cross-border cases and improve accessibility also for self-represented claimant27 and their wide and effective application from a legal perspective has been broadly recognized.28 Several simplification and standardization elements must be underlined. The procedures are con‐

27 Mellone, supra n. 23; Kramer, supra n. 13. 28 M.L. de Tejada and L. d'Avout, “Les non-dits de la procédureeuropéenned'injonc‐ tion de payer: Règlement (CE) n° 1896/2006 du 12 décembre 2006) (1)”, 96 Re‐ vue critique de droit International (2007) 717; A. Fiorini, “Facilitating Cross-Bor‐ der Debt Recovery – The European Payment Order and Small Claims Regula‐ tions”, 57 ICLQ (2008) 456; X.E. Kramer, “Enhancing Enforcement in the Euro‐ pean Union. The European Order for Payment Procedure and its Implementation in the Member States, Particularly in Germany, the Netherlands, and England”, in C.H. van Rhee and A. Uzelac (eds), Enforcement and Enforceability: Tradition and Reform, Intersentia, 2010, 25; M. Mellone and A. Pancaldi, “Il nuovo regola‐ mento comunitario sulle controversie di modesta entita”, 2 Diritto dell'Unione Eu‐ ropea (2008) 281; Mellone, supra n. 23.

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ceived as written procedures, and apart from exceptional cases for the ES‐ CP, do not require the presence of the parties or their representatives be‐ fore the court. A great effort has been made in order to standardize com‐ munication through the use of standard forms, which in theory should cover all communication requirements. The forms limit as much as possi‐ ble free text in order to reduce possible communication problems and ease translation. Support translation through the availability of the form in all EU languages also reduce translation complexity. The identification of the parties and expression of will is based on written signature with no addi‐ tional requirement. Failure to respond from one of the parties does not block the procedure. Both regulations have specific provisions to reduce the complexity of the enforceability in EU Member States other than the one in which the judgement is given. At the same time, the empirical research and the debate among Euro‐ pean scholars and practitioners on the implementation of these two regula‐ tions has unveiled many blocking elements where procedural steps are deferred to the national interpretations and rules;29 resulting in non-uni‐ form cross-border procedures.30 In particular, interesting information has been collected on the practical application through simulations carried out by scholars31 and by researchers and practitioners working on the imple‐ mentation of e-CODEX project. Ng (2014)32 and Kramer (2015)33 describe a number of issues the claimant (especially if not a “repetitive player”) is confronted with when attempting to file a claim. The first challenge is to understand if one of the

29 X.E. Kramer, supra n. 28; G.Y. Ng, “Experimenting with European Payment Order and of European Small Claims Procedure”, in F. Contini and G.F. Lanzara (eds), Building Interoperability for European Civil Proceedings Online, Cooperativa Li‐ braria Universitaria Editrice Bologna, 2013, 317; M. Mellone, “Legal Interoper‐ ability: The Case of European Payment Order and of European Small Claims Pro‐ cedure”, in F. Contini and G.F. Lanzara (eds), ibidem, 57; G.Y. Ng, “European Payment Order and European Small Claims Procedure in Practice: Findings from a Simulation Experiment”, in F. Contini and G.F. Lanzara (eds), supra n. 21; M. Mellone, “Legal Interoperability in Europe: The Cases of the European Payment Order and the European Small Claims Procedure”, in F. Contini and G.F. Lanzara (eds), supra n. 21; G. Lupo and J. Bailey, supra n. 21; Velicogna et al., supra n. 8; Kramer, supra n. 23. 30 Velicogna et al., supra n. 8. 31 G.Y. Ng (2013), supra n. 29; G.Y. Ng (2014), supra n. 29; Kramer, supra n. 23. 32 G.Y. Ng (2014), supra n. 29. 33 Kramer, supra n. 23.

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two regulations applies to the case. While a Wizard is now provided on the dynamic forms section of the e-Justice Portal, the non-expert user requires time and effort to locate the tool34 which then may result quite annoying with its long tree of chained closed Y/N questions it uses (e.g. “Do you have a legal case which could be decided by a court in a Member State other than your own or that of the other party?”) to guide and to suggest the possibility to use one of the two procedures or to suggest that the pro‐ cedures do not apply to the case. Once the user has determined the procedure he/she wants to use, the filling of the form itself provides a number of difficulties. These range from questions of international jurisdiction (in accordance with the rules of Council Regulation (EC) No 44/2001), providing the required informa‐ tion on the defendant (which may vary depending on the competent court Member State rules), calculating interests, identifying attackable assets in the EOP case, describing the claim, the documents the claimant has in support of the claim and additional information in a language accepted by the competent court (and eventually translate it in the language of the de‐ fendant). Another difficulty regards the lack of information available on the methods of payment of the court fees, which must be done in order to properly file a claim. On the basis of what stated in the regulation, claimant should utilize the methods of fees payment available in the Mem‐ ber State in which the addressed court resides. These pose several prob‐ lems ranging from the calculation of the fees to the specific methods avail‐ able, which in some cases require to physically go to the court. In addi‐ tion, depending on the Member State, more than one fee has to be paid at different steps of the procedure (Italy for example includes “standard court fee” contributo unificato, “Costs of service” spese di notifica and “rights of copy” diritti di copia). What must be paid, when and how, and what happens in case of mistake is not always clear. Furthermore, once the form is sent to the competent court, what hap‐ pens next is not clear. The expectation is that the court will take care of the procedure and inform the parties, but this is not always the case. As an ex‐ ample, according to the Italian procedure the service of documents is typi‐ cally carried out by the bailiff (ufficiale giudiziario) upon the party’s re‐ quest. So in the EOP procedure the claimant, and not the court, has to noti‐

34 Kramer, supra n. 23.

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fy the EOP. In the simplest case, when the defendant is domiciled in Italy, the claimant has to request a true copy (in Italian “copia conforme”) of the EOP to the court and to request the service through the bailiff (“ufficiale giudiziario”) within the deadline of 30 days. These activities normally en‐ tail the physical presence of the creditor or of a person acting on his/her behalf and the payment of further fees. The absence of clear information on the methods of judicial documents’ service in each Member State and the presumption made in the EU Justice portal that the task is carried out by the court, increase the complexity as the claimant is often unaware of the difficulties that he or she may en‐ counter after the claim is filed. Furthermore, additional actions not explicitly mentioned in the regula‐ tions may also be required from the parties. As an example, here is a list of the communications identified by the Italian Team during the analysis of the practical application of the EOP in Italy carried out for the preparation of the e-CODEX EOP Use case and for the Italian pilot (adapted from Velicogna, 2015):35 1. Communication from the Court to the claimant informing the latter that the claim has been received and has been registered under a specific number of protocol. 2. Communication from the Court to the claimant informing the claimant on the need for the payment of Court fees and the possible modalities to do it. 3. Communication from the claimant to the Court informing the Court on the payment of Court fees. 4. Communication from the Court to the claimant informing the latter that the order for payment has been issued and that a certified copy of the order can be issued on the basis of a request of the claimant and the payment of a specific Court fee. 5. Communication from the claimant to the Court in which the former asks to the latter for a certified copy of the order. 6. Communication from the Court to the claimant in which the former in‐ forms the latter that a certified copy of the order is ready, under the condition of the payment of a specific Court fee (the claimant is sup‐

35 M. Velicogna, “e-CODEX and the Italian Piloting Experience”, IRSIG-CNR Working Paper V. 1.0, 2015.

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posed to pay the Court fee, is supposed to take the certified copy and is supposed to serve it upon the debtor through a bailiff). 7. Communication from the claimant to the Court asking for the issue of the Declaration of enforceability. 8. Communication from the Court to the claimant that the Declaration of enforceability is ready. 9. Communication from the claimant to the Court informing that, after the service of the order, debtor has paid the debt, in order to avoid that a registration tax is applied over the order. As a result of these blocking elements, these procedures are seldom used. To counteract this situation, and in line with the idea that ICT is a tool to increase the efficiency of procedures and therefore to make them more ap‐ pealing to the potential users, several actions have been carried out and sustained in particular by the EU Commission. These actions include con‐ stant work to improve on-line access to procedural information and the dy‐ namic forms provided through the e-Justice portal, and the indication to have these two procedures selected for piloting in the e-CODEX project. (D) e-CODEX (1) An introduction to the project e-CODEX was launched under the multiannual European e-Justice Action Plan 2009-2013, to work on the realisation of some of the functions of European e-Justice as described in this Action Plan,36 especially the dema‐ terialisation of cross-border judicial proceedings and communication be‐ tween judicial authorities. e-CODEX project started as a 36 months project involving 19 partners and 15 European States, mainly through their Ministries of Justice or their representatives, but also three other institutions: the Council of Bars and Law Societies of Europe, the Council of the Notaries of the European Union, and the National Research Council of Italy. From its beginning, in December 2010, the project has been extended twice up to 66 months, and its budget has risen from €15 m to €24 m (EU contribution: €12 m). The number of participants has also increased to 25 and the number of States

36 Http://data.consilium.europa.eu/doc/document/ST-14208-2015-INIT/en/pdf.

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actively involved to 20. The explicit aim of the e-CODEX project is to im‐ prove the cross-border access of citizens and businesses to legal means in Europe as well as to improve the interoperability between legal authorities within the EU.37 For descriptive purposes, the story of the project can be divided in two parts. The first part of the project, approximately the first four years, was directed to determine the technological and normative requirements and to develop the technological solution to provide an interoperability layer for the cross-border exchange of judicial data and to allow access to crossborder e-Justice services. By the end of this period, the main elements of the solution were implemented, a legal solution was drafted to cover voids in the existing normative framework, and the pilot of the first use case had started. In the second part of the project, the focus shifted to the question of long-term sustainability of the solution and to the implication of the les‐ son learned through the project for the EU justice domain. These can be linked to at least three factors: the achievement of the immediate objec‐ tives of the project, the approaching of the end of the project and the in‐ creased interaction with the “external environment” including EU institu‐ tions, an increasing relevance of the e-Delivery convergence initiative and similar activities. (2) Determining the technological and normative requirements Part of the requirement analysis process was the identification of key com‐ ponents and principles that needed to be considered for building the actual solution. These requirements are a combination of technological, legal and political constrains coming from national and EU level. One of the first decisions was to design the architecture with the aim of exploiting the ex‐ isting legal, technological and organizational installed base,38 by allowing

37 M. Velicogna et al., “D7.6 Architectural Hands on Material (Update of D7.4)”, eCODEX Deliverable, 2016. 38 With installed base we refer here to the set of existing technological, legal and or‐ ganizational components and their “capabilities [, …] their users, operations and design communities”. O. Hanseth and K. Lyytinen, “Design theory for dynamic complexity in information infrastructures: the case of building internet”, 25 JILT (2010) 4; G.F. Lanzara, “The Circulation of Agency in Judicial Proceedings: De‐ signing for Interoperability and Complexity”, in F. Contini and G.F. Lanzara (eds), supra n. 21, 14.

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the connection of the already existing national systems developed in the member states and taking the maximum possible advantage of already ex‐ isting EU components such as the EU judicial procedures and the EU eJustice portal. While investigating the requirements it was recognized that the complexity of building an omni-comprehensive solution could not be managed39 and a case centric, iterative approach was adopted. It was therefore decided to proceed “starting from the analysis of the require‐ ments the system had to satisfy to support the use cases that were initially identified (in particular EPO, EU Small Claims Procedure and European Arrest Warrant) and then progressively extended to cover additional re‐ quirements”.40 (a) Key legal requirements The focus of e-CODEX is on the transmission of data and documents in the legal domain. The objective therefore is not limited to ensure secure transmission of data and documents, but is directed to support “juridically effective cross border acts and the transmission of juridically effective documents”.41 This implies that the system must not just enable the com‐ munication, but support the identification and expression of will needed for the performance of juridically effective acts in cross border judicial proceedings.42 Identity and expression of will are essential elements in any interaction that a natural person or a legal entity has with the other partici‐ pants in legal proceedings (e.g. in the filing of a civil case from a claimant to the court, the identity of the claimant and its will to file are key for the beginning of the procedure). In the “physical world”, identity and expres‐

39 The complexity of developing an omni-comprehensive approach depended on sev‐ eral factor including, between others, the scope (cross border civil, criminal and administrative judicial proceedings), the legal multilevel requirements (national, EU, technical, procedural etc.), geography (15+ States), number of organizations involved in the service provision (Ministries of Justice, software provides, Courts, Public Prosecution offices etc.), number of potential users. 40 M. Velicogna and G. Lupo, “Developing e-Justice technology for use: the eCODEX experience”, EGPA Conference (26-28 August 2015), Toulouse, France. 41 M. Velicogna, “The ‘e-’ experience in courts around Europe: insights from the practice”, presentation at the European Informatics Data Exchange Framework for Courts and Evidence – Market Size Workshop (11 December 2015), Rome, Italy. 42 M. Velicogna, supra n. 41.

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sion of will are often shown through written signatures, identity docu‐ ments and/or written mandates, which authorise persons or institutions to act on behalf of the party entitled to take part in the procedure.43 Moving to the digital world, electronic identities, electronic signatures and elec‐ tronic mandates all exist in some form in different e-CODEX Member States. Recognizing these identities and expressions of will, and being able to use them in cross-border cases, though, is a complex matter. Sup‐ porting e-Identification and e-Signatures was therefore recognized as a key requirement of the e-CODEX system. At the same time, as e-CODEX was being developed, the Regulation (EU) N°910/2014 on electronic iden‐ tification and trust services for electronic transactions in the internal mar‐ ket (eIDAS Regulation) was still under discussion. Given the missing le‐ gal framework, supporting e-Identification and e-Signatures was not just a technological problem, but a legal one. The solution had to be compatible with the legal systems of the Member States, and if the system was to be used, user friendly”.44 The Project partners decided that these require‐ ments had to be satisfied “regardless of the state of advancement of the new signature directive”.45 (b) Key technological requirements From a technical perspective the questions that needed to be addressed in‐ cluded: “Which techno-institutional components does e-CODEX reuse? What needs to be done at National level and what by e-CODEX? Who build what (i.e. gateways, XML etc…)?”.46 The Ministries of Justices par‐ ticipating in e-CODEX had a clear idea about the existence, in several cas‐ es, of “e-Services and infrastructure that Member States [… had] already established cover specific requirements of national legal systems”.47 As“these national solutions [… were] the result of considerable invest‐

43 F. Contini and R. Mohr “How the Law Can Make It Simple: Easing the Circula‐ tion of Agency in e-Justice, in F. Contini and G.F. Lanzara (eds), supra n. 21, 53; R. Mohr and F. Contini, “Reassembling the Legal: ‘The Wonders of Modern Sci‐ ence’ in Court-Related Proceedings”, 20 Griffith Law Review (2011) 994. 44 G. Borsari et al., D7.3 High Level Architecture Definition, e-CODEX Deliverable, 2012, 8. 45 Borsari et al., supra n. 44, at 8. 46 Borsari et al., supra n. 44, at 1. 47 Borsari et al., supra n. 44, at 7.

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ments […, they could not] be replaced through new centralized approach‐ es.”48 At the same time, the decision was not based just on an economic or opportunity reasoning, but also on a political one, as “The technical solu‐ tions envisaged within this context must respect both the principle of inde‐ pendence of the judiciary and of subsidiary”.49 The decision was therefore to adopt a decentralized architecture.50 Another requirement of “political origin” was to re-use wherever possi‐ ble, solutions already developed and implemented by previous EU projects such as EPSOS, STORK, PEPPOL and SPOCS. The presence of these solutions has been on the one hand an opportunity, on the other the dependency from other LSPs implied potential risks and imposed coordi‐ nation efforts given “the maturity and availability of their technical devel‐ opments and […] the complexity in finding a solution that is simple enough from a user perspective to be adopted”.51 This resulted in the par‐ ticipation of an “e-Delivery convergence effort and pursue the effort to reuse and adapt solutions from other co-funded projects”.52 A requirement deriving from the legal layer was to support identifica‐ tion and expression of will. Combined to the decision to adopt a decentral‐ ized architecture and the impossibility for e-CODEX to provide fore-ID and e-Signature to its potential users, this resulted in the requirement to provide interoperability for e-ID and e-Signature infrastructures designed to operate at national level. (c) Additional requirements In addition to the key legal and technological requirements, one additional key requirement was to enable communication of semantic information between national systems that use different semantic structures. In other words, through semantic mapping and semantic transformation schemas, it

48 49 50 51 52

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Borsari et al., supra n. 44, at 7. Borsari et al., supra n. 44, at 7. Borsari et al., supra n. 44, at 13. Borsari et al., supra n. 44, at 8. Borsari et al., supra n. 44, at 8.

From Drafting Common Rules to Implementing Electronic European Civil Procedures

must be ensured the mutual interpretation of data exchanged between na‐ tional electronic systems in cross border legal procedures.53 (3) The e-codex solution As a result, e-CODEX project developed an e-delivery solution that uses building blocks from previous EU Large Scale Projects54 (LSP) and na‐ tional projects, to allow data and documents exchange, and the validation and cross-border recognition of e-identities and e-signatures,55 which, as previously mentioned, is a key requirement to have juridically effective le‐ gal communication. On the basis of the requirements, a gateway-based ar‐ chitecture was selected. “The function of the gateways is to separate na‐ tional and EU portal solutions from e-CODEX allowing them to exist in‐ dependently. It converts messages from the national or EU portal format to a format supported by e-CODEX and vice versa”.56 In practice, the eCODEX e-delivery solution receives and hands over (route and forward) data, documents and evidences of the main process steps asynchronously. The solution is content agnostic, in the sense that the transport of data is independent from the format of the files being exchanged and from the business processes being supported. Finally, it is multilateral, in the sense that common standards are agreed by the partners to develop common so‐ lutions, instead of implementing bilateral arrangements, which create the need for the maintenance of a higher number of solutions and agree‐ ments.57 It uses building blocks from previous EU Large Scale Projects to

53 M. Velicogna, et al. “D7.4 Architectural Hands on Material”, e-CODEX Deliver‐ able, 2014. 54 PEPPOL: e-procurement, epSOS: e-health, STORK: e-identity and SPOCS: ebusiness services. More information can be found here: http://ec.europa.eu/infor‐ mation_society/newsroom/cf/document.cfm?action=display&doc_id=1250. 55 M. Velicogna, “The Making of Pan-European Infrastructure: From the Schengen Information System to the European Arrest Warrant”, in F. Contini and G.F. Lan‐ zara (eds), supra n. 21; M. Velicogna, supra n. 35. 56 G. Borsari et al., supra n. 44, at 9. 57 G. Borsari et al, “D7.1 Governance and Guidelines Definition”, e-CODEX Deliv‐ erable, 2011, available online: http://www.e-codex.eu/news-and-media/media/ deliverables.html?eID=dam_frontend_push&docID=143 (accessed on 22 July 2015).

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support cross-border e-Justice services.58 The function of e-CODEX is not limited to the transportation of data and documents. To enable meaningful exchange of information between national systems, it also supports se‐ mantic interoperability. Every Member State participating in the pilots has national solutions for procedures in civil and criminal law (either existing or developed in the context of e-CODEX). Such solutions are typically based on domestic semantic structures. To support the exchange of seman‐ tic information, e-CODEX uses common document standards and seman‐ tics. Specific coding schemas used by national systems need to be trans‐ formed in order to be interpreted by other systems using different schemas. This transformation is better known as mapping. To this end, “eCODEX has to and will provide the means to connect rightfully and meaningfully that data that is presented in a different format and may car‐ ry different interpretations within the Member States”.59 Following a usecase centric modelling approach, for each use-case, with the support of na‐ tional experts, e-CODEX has developed specifications which ensure mu‐ tually equal interpretation of data exchanged between national electronic systems in cross border legal procedures. In practice, for being processed through e-CODEX, the national solutions need to be converted into basic “European” semantic concepts. Member States are responsible for when, if and how the messages are transformed from European to national level and vice versa. The result is that the data being exchanged “is clearly and uniformly understood when exchanged through the e-CODEX infrastruc‐ ture”.60 In addition to fulfil e-Delivery and semantic functions, an e-ID and ex‐ pression of will solution was developed. Dealing with such topics, and in line with its subsidiary stance, e-CODEX project decided to support se‐ cure electronic communication and information exchange between the ex‐ isting national systems. Identity management systems, systems supporting the indication of intention by identified users and signature verification so‐ 58 At the same time, this e-delivery infrastructure may be adapted for more gener‐ alised use in the government sector within the EU Large Scale Project called elec‐ tronic Simplified European Networked services (e-SENS), aiming to deliver reusable and tested technical components (building blocks) to the Connecting Eu‐ rope Facility (CEF). 59 E. Francesconi et al. “D6.3 Concept for Implementation of WP6”, 2011, available online: http://www.e-codex.eu/news-and-media/media/deliverables.html? eID=dam_frontend_push&docID=143 (accessed on 22 July 2015). 60 Francesconi et al., supra n. 59.

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lutions already in place in the different Member States are made interoper‐ able cross-border through a mechanism of validation of the signature/iden‐ tification that works at the level of the sender’s e-CODEX components and which creates a certification signed by the sending connector authority (i.e. the Ministry of Justice of the sending MS), the so called Trust-Ok-To‐ ken (e-CODEX, 2015). When electronic communication crosses national borders, mutual trust and acceptance of the national systems that manage such communication is needed. To support this, the e-CODEX project has drafted an agreement called the Circle of Trust, signed by all piloting part‐ ners. This established a legal basis to recognise exchanged electronic in‐ formation. The Circle of Trust also establishes the minimum level of oper‐ ational and technical requirements the partners need to satisfy to be con‐ nected to the e-CODEX system and provide services through it. One of the key concepts supported by the Circle of Trust is that if the information is trusted by the state where it originates from, then it may also be trusted by the receiving state/s, subject to certain conditions. A Circle of Trust is un‐ derstood as the mutual recognition between Member States of electronic data, documents and signatures within the existing legal framework.61 In addition to the technological components and the Circle of trust agreement, e-CODEX is also composed of organisations, rules and agree‐ ments that allow the actual provision of cross border judicial services. Be‐ ing the legal domain, first of all, procedural rules (laws) are required. eCODEX services follow cross-border judicial procedures based on EU Regulations and Decisions (e.g. European Payment Order, European Small Claim etc.). While these EU norms provide a certain level of stan‐ dardisation, their functioning relies on national organisations (e.g. courts, bailiffs, tax agencies), procedures (e.g. notification, payment of fees). (4) From developing to piloting From the fourth year of the project, the effort shifted toward moving ‘test‐ ing’ Member States to the production environment (live cases), increase the number of working pilots and the long-term sustainability of the solu‐ tions developed by the project and of the provided services. As of May 2016, the project has five working pilots, the European order for Payment

61 M. Velicogna, et al., supra n. 53.

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– EOP, live since August 2013 and providing services in 7 Member States,62 the EU Small Claims, live since June 2015 and providing ser‐ vices in four Member States,63 the Synchronous Communication applied to Business Registers, live since September 2015 and providing services in three Member States,64 and Secure Exchange of Sensitive Data (which includes Mutual Legal Assistance for criminal law, and civil justice/ Tak‐ ing of Evidence, EURegio and the Mutual Recognition of Custodial Sen‐ tences), live since November 2015 and providing services in three States,65 and finally, the Financial Penalties, live since May 2016 and pro‐ viding services in two Member States.66 Overall, 13 Member States are in‐ volved in the piloting.67 The piloting stage of the e-CODEX project is carried on in waves. In the EOP case for example, the first use cases being piloted, the first wave saw the involvement of four e-CODEX partners going live in August 2013 (Austria, Germany, Estonia, and Italy), the second wave with one partner going live in March 2014 (Greece), the third wave with one partner going live in June 2015 and the fourth wave with one partner going live in May 2016 (Malta).68 The piloting countries begin the piloting stage by configuring and im‐ plementing the e-CODEX solution components that are managed national‐ ly. Aside the nationally implementation of e-CODEX solution, piloting countries must connect an already existing service provider or develop a new one69 (a stand-alone version of the e-CODEX national component has been introduced since November 2014 as a default implementation of the connector framework for all piloting Member States which do not have

62 Austria, Germany, Estonia, Greece, Italy, Malta and Poland, while France and the EU Commission are in the testing phase. 63 Austria, Czech Republic, Malta and Poland, while France and the EU Commission are in the testing phase. 64 Austria, Ireland, Italy. 65 Germany, Spain and Netherland, while Greece is in the testing phase. 66 France and Netherland, while Germany and Hungary are in the in the testing phase. 67 D.B. Hvillum, et al., D3.8 WP3 Final Report, e-CODEX Deliverable, 2016, 17. 68 D.B. Hvillum et al., supra n. 67; N. Carboni and M. Velicogna, “Electronic data exchange within European Justice: a good opportunity?”, 4 IJCA (2012) 104; G. Lupo and J. Bailey, supra n. 21. 69 G. Borsari et al., supra n. 57.

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any national system in place to be connected to e-Codex,70 but does not provide an end-user interface). The service provider allows the access to the service and to the Forms available in the procedure, both to the exter‐ nal users (citizens and/or lawyers) and to judges and court staff. On the one hand, national lawyers and/or citizens may access to the national ser‐ vice to fill out the EPO form, for filing a claim or an opposition (in case of a defendant). On the other hand the service provider is accessed by judges and court staff to manage the incoming forms (in the EOP case, for exam‐ ple, the Form A sent by a claimant in order to file a request for a European possession order) and to fill out and send the forms prepared by the Court to the parties. At the moment, only the national e-filing system of each pi‐ loting country function as a service provider through which documents can be transmitted into the e-CODEX system (e.g., the filing of a posses‐ sion order). For instance in the Italian case, the Italian Trial Online (in Italian, Processo Civile Telematico)71 has been connected to the e-CODEX system enabling the piloting Court of Milan to pilot “live cases”. More‐ over in the Austrian case, the ERV (Elektronischer Rechtsverkehr)72 has been connected as service provider in the e-CODEX pilot for the EPO providing access to the Austrian lawyers trough their ERV applications which have been adapted to manage the EOP forms and communication. In the Greek case, a national EPO Case Management System was specifi‐ cally developed.73

70 F. Rödlich and M. González, D5.13 WP5 Final Report, e-CODEX Deliverable, 2016. 71 D. Carnevali, “L’Italia nel tunnel dell’e-justice”, in D. Carnevali and F. Contini (eds), Tecnologie per la Giustizia. I Successi e le False Promesse Dell’e-Justice, Giuffrè Editore, 2006, 83; D. Carnevali, Soggetti smarriti. Perché innovazione e giustizia non si incontrano (quasi) mai, Franco Angeli, 2010; D. Carnevali, and A. Resca, “The Civil Trial On-Line in Italy”, in F. Contini and G.F. Lanzara (eds), supra n. 29, 273; G. Borsari and A. Baratta, “L’interoperabilità e gli strumenti per i soggetti esterni”, in E. Zan (ed), Tecnologia, Organizzazione e Giustizia. L’evoluzione del Processo Civile Telematico, Il Mulino, 2004, 227. 72 S. Koch and E. Bernoider, “Aligning ICT and legal framework in Austria’s e-bu‐ reaucracy, from mainframe to the internet”, in F. Contini and G.F. Lanzara (eds), ICT and innovation in the public sector: European studies in the making of e-gov‐ ernment, Palgrave Macmillan, 2009. 73 G. Pangalos, et al., “Using IT to Provide Easier Access to Cross-Border Legal Pro‐ cedures for Citizens and Legal Professionals-Implementation of a European Pay‐ ment Order e-CODEX pilot”, 6 IJCA (2016).

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Successively to the implementation of the e-CODEX solution at nation‐ al level, and the adaptation and connection of the service provider to it, the piloting countries begin the testing phase. The tests follows a timeline agreed with the other testing partners and coordinated by the e-CODEX working package responsible for piloting.74 Testing includes: a) sending of the document from the national service provider to the e-CODEX national solution; b) validation of signature; c) capability to create a message; d) capability to send and receive messages from and to other e-CODEX na‐ tional solution; and e) other capabilities such as the forwarding of evi‐ dences generated by the message transmission and the correctness of the message.75 All the exchanges are tested by all the piloting countries utiliz‐ ing mock cases in a test environment.76 The successful conclusion of the test phase is followed by the going live of the pilot. At this stage, real users (citizens, lawyers, court staff and judges) are involved in utilizing the system with real cases. Piloting coun‐ tries activated the “go-live” pilot phase in different ways. As an example, in the EOP case, in Austria, the national e-filing systems has been con‐ nected to e-CODEX permitting sending EOP claims. Greece has activated a court which deals with about 50% of incoming EOPs and is working on the development of a system to allow lawyers to file cases. In Germany, a single national court (the Wedding District Court) also processes all EOP cases incoming from European citizens, but Germany can only receive EOP cases through e-CODEX. The system is not available for German citizens or lawyers who want to send an EPO claim to a court in another

74 Supra n. 73. 75 D.B. Hvillum et al., “Documented System Requirements and Specifications”, eCODEX project Deliverable, 2013, available online: http://www.e-codex.eu/newsand-media/media/deliverables.html?eID=dam_frontend_push&docID=143 (ac‐ cessed on 22 July 2015). 76 G. Borsari et al., supra n. 57. A tool simulating a complete e-CODEX infrastruc‐ ture and to provide a full e-CODEX test environment for sending and receiving test messages for existing e-CODEX pilots was introduced after recognizing the complexity of testing after the first experiences. One of the main difficulties was to setup such a tool very quickly after recognising its importance. The Greek team volunteered not only to implement the tool (called a Central Testing Platform) but also to host it and provide access to all piloting partners. The CTP started with the EOP use case and then extended to include Small Claims, Mutual Legal Assis‐ tance and Business registers: M. Velicogna et al., supra n. 37; F. Rödlich and M. González, supra n. 70.

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piloting country.77 Estonia developed an interface connected to e-CODEX, which allows citizens to file EOP claims to piloting countries’ courts based on the use of an already developed system of electronic signature. In Italy, only the First Instance Court of general jurisdiction of Milan is con‐ nected to the e-CODEX system through TOL’s infrastructure for judges and court staff. Unlike Germany, the Court of Milan can only process in‐ coming claims over which the first instance court of general jurisdiction of Milan is competent. It should be noted that the modifications introduced in the Italian court ICT system could be activated in all first instance courts, but the Ministry of Justice has decided to carry on the pilot in a limited environment to better understand the potential legal performativity prob‐ lems before making the service available nationwide. In addition to the national solutions, at present, the European e-Justice Portal is being modified to become a central European Service Provider, allowing access to the e-CODEX system to both professional and non-pro‐ fessional users. The idea of providing such functionalities is three fold. First, it is in line with the intended scope of the European e-Justice Portal to be an electronic one-stop-shop in the area of justice. Second, it over‐ comes the problem of piloting countries that do not have a national e-Jus‐ tice infrastructure that would allow access to e-CODEX services to the general public. Third, it allows access to e-CODEX services also to poten‐ tial users outside the piloting countries. The different implementation of the technological innovation fostered different conditions between users in the different piloting countries. This brought also different results in terms of number of cases that have been filed through the e-CODEX system. On the case of Austria and Germany, for instance, geographical proximity, shared language, similar national procedural rules resulted in a much higher number of cases than Estonia, Greece and Italy. This result acknowledges the clear existence of impor‐ tant commercial relations between the two countries and the obvious ab‐ sence of semantic barriers (in both countries the official language is Ger‐ man). Moreover, even before e-CODEX the Austrian and German system was already used to exchange and send trans-border payment orders. On the other hand, as an example, the cases sent through the Austrian service provider to the Italian system are very few (only four by the end of 2015). It is probable that with the implementation of the e-Justice portal as an e-

77 N. Carboni and M. Velicogna, supra n. 68. G. Lupo and J. Bailey, supra n. 21.

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CODEX service provider, accessible by all the European citizens through the web, the number of EPO cases filed in e-CODEX will raise. However, it is worth saying that an improved accessibility of the e-CODEX technol‐ ogy to European citizens may not positively affect the diffusion of the pro‐ cedure as several of the favourable elements to the use of the procedure are not affected by the technology. Indeed most of the issue previously mentioned regard the different national application of the European Regu‐ lation on European Order for Payments and the lack of information for po‐ tential users. While information provision needs began to be addressed in cooperation with the e-Justice portal as soon as recognized, the other fac‐ tors were considered at least initially as unmovable cornerstones around which the system could be built as they would have required amendment of the European Regulations. (E) Going Beyond While the e-CODEX ended up with a successful test bed and a proof of concept on how juridically effective acts and documents could be elec‐ tronically transmitted in cross-border judicial proceedings, it produced much more than a tool to support the service provision experimented in a small number of live cases. Creating e-CODEX system meant putting together the efforts of more than 150 people directly involved in its various activities for over five years. While much of the effort of these people was directed toward inves‐ tigating, developing and making interoperable technological components, much effort was also directed toward understanding the functioning of EU cross-border procedures. (1) Knowledge creation on cross-border procedures The work carried out within e-CODEX generated a reflection on key ele‐ ments that ensure that national and EU cross-border procedures are juridi‐ cally effective in the off-line world, and how such elements can be trans‐ posed in the digital domain. At the same time, it generated quite a bit of research and knowledge on why the procedures that needed to be support‐ ed did not work properly. In many cases the result was that the problem could not be addressed through technological means. It is the case of the

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service of documents, which emerged as one of the critical issues deter‐ mining the low level of EOP and EU Small Claim procedures. In this in‐ stance, project team carried out a throughout investigation of the proce‐ dure resulting in a report on the service of document procedures in nation‐ al and cross-border EU procedures in 14 Member States judicial systems. Other topics were also explored quite extensively, such as the national procedures for the payment of court fees. One of the results of this explor‐ ation was an update of the information available on the EU e-Justice portal and the draft of guidelines to the use of e-CODEX describing also these issues, in cooperation with the EU Commission. (2) Policy making and Political dimensions As there is not a perfect fit between the two domains and different judicial domains have different requirements, the developing process needs legal (and political) decision-making. In this perspective, the circle of Trust (and the decision to adopt it) can be seen not just as a legal object, but as the result of a political decision driven by multiple needs. At the same time, the political dimension of e-CODEX seems to stem less from the de‐ velopment phase itself, and more from the attempt to make the e-CODEX solution sustainable in the long term. While a test bed does not need a critical mass of users, a large-scale system that needs to be sustainable in the long term does. As a result of the understanding of the procedures and of their problems, linked to the need of having them used through e-CODEX, initiatives have begun to be taken to influence not only the procedures themselves (e.g. addressing procedural off-line barriers both at implementation level, both influencing the EU legal instruments drafting/revision), but also their drafting ap‐ proach (e.g. in a more semantically coherent direction). Furthermore, the dialogue has extended from within the e-CODEX project boundaries to a much broader set of arenas. From the very begin‐ ning e-CODEX has been in close contact to existing standardisation bod‐ ies in order to provide a solution based on widely accepted standards. In particular, it tried to involve representatives and professionals of different standardisation organisations such as ETSI and OASIS into the specifica‐ tion phase in order to make the right decisions and use the standards ac‐

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cordingly. Also, as previously mentioned, the experience with standards coming from previous LSP projects has been taken into account.78 Furthermore, e-CODEX has been in close contact with the latest largescale project e-SENS (Electronic Simple European Networked Services), which started in 2013 aiming at consolidating the building blocks de‐ veloped by all previous large-scale projects (e.g. e-Signature, e-Identity, eDelivery and e-Documents which are relevant in the legal area). e-SENS and especially its e-Justice domain team are building upon the results of eCODEX to “identify more specific demands of potential users of electron‐ ically available legal procedures”79 and are working on extending the pi‐ loting activities to additional judicial areas (e.g. family law, administrative law etc.). Besides this, e-SENS is taking into account the e-CODEX sus‐ tainability action plan80 and will consider the requirements and actions which need to be met or carried out to ensure the maintenance and sustain‐ ability of the e-CODEX technical components. The work on sustainability will therefore continue in the e-SENS project extension phase during the course of 2016 and early 2017.81 Furthermore, in the final piloting confer‐ ence call of e-CODEX it was announced that the piloting of e-CODEX in the criminal are was going to continue within the e-SENS umbrella,82 while piloting in the civil area is going to take place within the “CEFTC-2016-2: European e-Justice Portal” call for proposals, which, between its priorities has “Access to e-CODEX” and specifically refers to Euro‐ pean Order for Payment and European Small Claims procedures.83 At a higher EU political level, the discourse generated by the need to ensure the long-term sustainability of e-CODEX has much increased its institutional visibility and therefore its potential impact on fields that are outside its sphere of influence as a simple tool to support cross-border communication. As part of this dialogue, e-CODEX sustainability has emerged as a relevant component to achieve the Digital Agenda for Euro‐

78 F. Rödlich and M. González, supra n. 70. 79 E-SENS, Technical Annex, WP5.3: e-Justice Piloting, 102. 80 A. Buhr et al., ,deliverable, 2014, A. Alcaide et al., , Deliverable v. 2, 2014, , in the process of drafting such documents, where contacted. 81 N. Nickel et al., e-CODEX Deliverable D1.16 Final sustainability report and rec‐ ommendations (Update of D1.12 Sustainability Plan), 2016. 82 E-CODEX WP3, Piloting Call Minutes, June 31th 2016. 83 INEA CEF-TC-2016-2: European e-Justice Portal, Call for Proposals Concerning Projects of Common Interest Under the Connecting Europe Facility in The Field of Trans-European Telecommunication Networks, CEF TELECOM CALLS 2016.

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pe objectives. This has resulted in the explicit mention of e-CODEX “in the Strategy on European e-Justice 2014–201884 and the associated Action Plan85, both of which have been endorsed by the Council of Ministers of the European Union and the European Parliament”.86 Furthermore, the Council of the European Union (Justice and Home Af‐ fairs), in its meeting on 4 December 2014, identified and underlined the need to establish a sustainable framework for the technical solutions de‐ veloped in the context of the e-CODEX project. In particular, Council (Justice and Home Affairs) “invited the Commission to finalise its internal reflections and submit to the Council solutions for the sustainability of the e-CODEX project in the short and longer terms, on the aspects concerning the future governance of e-Justice at EU level, including the possibility of using an existing EU agency”.87 The topic of e-CODEX sustainability was addressed again at the informal Justice and Home Affairs ministerial meeting on 30 January 2015. As a result of this high level EU political discourse, the “Council (Justice and Home Affairs) established the expert group on e-CODEX related issues on 15 June 2015”.88 Since then the expert group has worked in cooperation with the eCODEX Management Board and the Commission to find a viable solution for the e-CODEX sustainability “taking into account the principles of vol‐ untary action, decentralisation, interoperability and independence of the judiciary, and the need to take into account the interests of those Member States not currently participating in the e-CODEX project”.89 While the medium-term sustainability of the technical generic components could be ensured by the “Connecting Europe Facility” (CEF), the e-CODEX sys‐ tem was seen as more than just the sum of the technical parts. In particu‐ lar, three solutions for the long term were discussed:90 1. Firstly, the Commission could be invited to assume responsibility for the continued maintenance of the e-CODEX solutions. However, the

84 85 86 87 88 89

See 17006/13. See 9714/14. Http://data.consilium.europa.eu/doc/document/ST-14208-2015-INIT/en/pdf. Supra n. 86. Supra n. 86. Http://register.consilium.europa.eu/doc/srv?l=EN&f=ST %2015774%202014%20INIT, at 6. 90 Http://data.consilium.europa.eu/doc/document/ST-14208-2015-INIT/en/pdf, 7.

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Commission may not be optimally equipped for such a form of opera‐ tional management. 2. A second option could be to assign these responsibilities to one or more Member States. Comparable experiences have, however, shown that this can create structural, organisational and technical difficulties (e.g. the Schengen Information System). Therefore such an approach might not be a viable solution. 3. A third option would be to entrust an existing agency with these tasks. For this purpose, three agencies were identified as possible candidates, eu-LISA, ENISA and INEA. The expert group on e-CODEX related issues and the e-CODEX Manage‐ ment Board have worked to identify criteria for involving an existing European agency for the purpose of sustaining and maintaining e-CODEX components. As it has already emerged, the entrusting of the e-CODEX solution maintenance and long-term sustainability has implications which go beyond those one would expect if the object was simply a support tool. In addition to technical capabilities, it is important that the governance of the agency respected and ensured the independence of the judiciary. Ac‐ cordingly, the “Management Board of e-CODEX has approached euLISA, ENISA and INEA to check their respective interest, willingness and approach towards acting as a partner for the sustainability of eCODEX”.91 At the same time, it was also recognised that “if an EU agen‐ cy is made responsible for the full lifecycle of development and opera‐ tional management of the e-CODEX solutions in the short term and, after due consideration, for the full lifecycle of development and operational management of the interoperability of decentralised IT systems in the area of e-Justice in general in the long term, a specific legislative instrument to be submitted by the Commission will be necessary”.92 As a result of this process, the expert group on e-CODEX recommend‐ ed that the “Management Βoard of e-CODEX starts contact with eu-LISA, in full cooperation with the Commission, with a view to it taking care of the maintenance of e-CODEX at a date to be agreed between all parties, though preferably no later than 1 August 2018”.93 It further stressed that “between the end of the e-CODEX project and the uptake by a European

91 Supra n. 90, at 8. 92 Supra n. 89, at 5. 93 Supra n. 90, at 9.

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agency the maintenance of the e-CODEX assets have to be ensured”,94 and it underlined that “A first step in this direction was taken by the Com‐ mission in its latest call for proposals for an Action Grant on e-Justice”.95 In its meeting on 3-4 December 2015, the Council of the European Union (Justice and Home Affairs), adopted the roadmap on the sustainability of e-CODEX and “confirmed the importance of a new co-financed project covering the maintenance of the e-CODEX assets”.96 Following this lead, a group of e-CODEX leading Member States used the e-Justice call to apply for funding with a proposal for a new project called Me-CODEX (Maintenance of e-CODEX) covering the maintenance of the e-CODEX assets specifically related to the e-Justice service provi‐ sion. The overall goal of Me-CODEX is to ensure a swift and sustainable transition of the e-CODEX project towards long-term sustainability. It is intended as a bridge between the closure of e-CODEX and the handover to a potential agency that will take responsibility for the daily maintenance of the solutions, on-going development and support to EU Member States and associated countries.97 The expected result of Me-CODEX is there‐ fore to outline the necessary requirements to an agency that will be charged of ensuring the long-term sustainability of the e-Justice solutions that have been developed by e-CODEX. To ensure the approach undertak‐ en by Me-CODEX to maintain e-CODEX is viable, the consortium will work in collaboration with a number of on-going initiatives. In particular, close collaboration with the Connecting Europe Facility (CEF) should en‐ sure that all the necessary technical components used within e-CODEX are maintained and enhanced where possible. Furthermore, Me-CODEX plan to benefit from its current links with the CEF team of DIGIT and DG CONNECT to position the sustainability needs of Me-CODEX and take part in discussions regarding the future sustainability of all digital service infrastructures and building blocks. This alignment will be key in ensuring a viable and sustainable long-term solution for the maintenance of all eCODEX solutions and beyond.98 Furthermore, due to the e-Justice Portal role in providing an entry point for the citizens of “most of the MS”,99 the

94 95 96 97 98 99

Supra n. 90, at 9. Supra n. 90, at 9. Http://www.statewatch.org/news/2015/dec/eu-jha-council-3-4-dec-prel.pdf, 13. Exact geographic scope to be defined in the future legal act. N. Nickel et al., supra n. 81. F. Rödlich, M. González, supra n. 70.

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involvement of DG JUSTICE in the activities related to e-CODEX solu‐ tions maintenance and evolution seems also to be needed. While the area of influence of e-CODEX has extended, a constellation of activities in the e-justice domain have spurred on from the e-CODEX achievements. To cite three initiatives that started at the beginning of 2016: 1. The CCBE, within a EU co-funded project (Find a Lawyer 3), is plan‐ ning to connect Find a Lawyer 2 (a tool that allows lawyers to verify eID in cross border procedures) to e-CODEX. “Within the framework of e-CODEX, FAL 2 will provide the necessary solution to ensure that the person claiming to be a lawyer is indeed a qualified lawyer in his/her home jurisdiction and is, thus, able to fill in claims on behalf of the client through e-Justice procedures available, for instance, under eCODEX”.100 More concretely, a use case on Lawyer-2-Court commu‐ nication consisting in testing the participation of lawyers in EPO via the European e-Justice Portal using the outcome of the projects FAL2 has been initiated and will be finalised in the context of Me-CODEX project.101 2. Pro-CODEX (Connecting legal practitioners national applications with e-CODEX infrastructure), a EU co-funded project, that has begun to investigate the possibilities and create conditions to make e-CODEX and the applications used by legal professionals (lawyers and notaries) at national level interoperable. e-CODEX has been designed to provide general solutions and is well tailored on meeting national courts’ needs, while the e-Justice Portal should provide a solution for nonrepetitive players. At the same time, with exceptions, these solutions are not integrated with the applications that legal practitioners use to manage their business in different member states. At present, private companies providing these systems do not seem interested in develop‐ ing e-CODEX interfaces due to the limited number of users. In this perspective, Pro-CODEX will provide the means to extend the user bases of e-CODEX investigating the issues related to the connection of 100 Http://www.ccbe.eu/fileadmin/user_upload/NTCdocument/ FAL2_page_EN_webpdf1_1366020243.pdf. 101 As the work to link FAL2 with e-CODEX will take more time than first expected, the work on FAL3 needs to be postponed. This means that the testing of the Lawyer2Court use case will be done after the end of e-CODEX. Source: eCODEX Deliverable D3.13 Update of D3.4 Test Findings of Tests.

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legal professionals applications to e-CODEX infrastructure and devel‐ op running pilots in a limited number of countries. 3. The “API for Justice” EU co-funded project, coordinated by the Dutch Ministry of Justice aims to open up the infrastructure for cross border legal services provided by e-CODEX and the European e-Justice por‐ tal, by means of an API (Application Programming Interface). This would make it possible for third parties to build applications which use the e-CODEX services.

Figure 1 e-CODEX and related initiatives (adapted from Velicogna 2015 102) (F) Concluding remarks This paper showed some of the key strengths and weaknesses of the legal tools introduced to enable cross border judicial procedures, and in particu‐ lar the EOP and the EU Small claim procedure. It also discussed how many of the complexities related to such procedures are not solved by the availability of a technological tool supporting it. At the same time, it has shown how the effort to develop, implement and make sustainable such tool in the long run has resulted in far reaching consequences, which goes

102 M. Velicogna, supra n. 41.

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well behind the limits of technology. e-CODEX generated knowledge on the legal procedures, but also on the process of drafting such procedures and on the limits engrained in the present situation. At the same time, its process of institutionalization has resulted in an increasing capability to influence its external environment. As this process is just at the beginning, this process will need to be studied, as it provides a new perspective on the dynamics influencing the evolution of EU cross-border procedures, and of the EU legislative process itself.

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Taking Justice Online: Developments in England and Wales and Their Potential Influence on European Procedural Harmonisation John Sorabji Senior Fellow, UCL Judicial Institute, UCL, London/ Principal Legal Ad‐ viser to the Lord Chief Justice and the Master of the Rolls

Summary: This paper considers the development of digitization of the civil courts in England and Wales and the proposals to create a standalone entirely online civil court within the jurisdiction. It looks at the back‐ ground to these developments in the effects of austerity-driven budget cuts to the courts’ administration and the provision of legal aid. It further con‐ siders how the development of an online court, co-designed by a number of European countries, could provide the basis for greater future harmo‐ nization of civil justice. (A) Introduction1 The English and Welsh (hereafter English) civil justice system has over the past fifty years undergone its second great period of continuous re‐ form. The first such period, which spanned the course of the 19th Century, saw the modernization of the courts, the legal profession, and for the first time in England, the principled development of substantive and procedural law as separate entities.2 The second period commenced in the early 1970 s with, as Kershaw pointed out, structural reform of the civil and criminal courts. It has seen radical change to the structure and regulation of the legal profession.3 And it has seen wide-ranging reforms to civil pro‐

1 Thanks must go to Masood Ahmed for his very helpful comments on an early draft of this paper. The usual disclaimer applies. 2 M. Kershaw, “From Beeching to Woolf”, 19 Liverpool L.Rev. (1997) 47. 3 Legal Services Act 2007.

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cedure, most significantly the recasting of its rules of court following the Woolf reforms of the 1990 s.4 This second reform period has recently entered a new phase, which has two limbs. The first is an across the board reform of courts and tribunals’ administration: the ‘HMCTS reform Programme’.5 It encompasses all courts and tribunals and will see an, approximately, £750 million invest‐ ment in court and tribunal modernization, a substantial reduction in the court estate, and a move to fully digitized court processes across the civil, family and tribunal jurisdictions,.6 Secondly, and related to the first set of reforms, the civil courts will be restructured, following proposals de‐ veloped by Sir Michael Briggs in the Civil Courts Structure Review (CC‐ SR).7 The main focus of this set of proposals, although they go wider, is to create a new standalone online civil court.8 This paper discusses the HMCTS reform programme and the CCSR re‐ forms, which taken together mark the first step in taking English civil jus‐ tice online. First, it considers the immediate background to the reforms: economic austerity and the growth in litigants-in-person. Secondly, it specifically looks at the routes to reform via the HMCTS reform pro‐ gramme and policy work carried out initially by two policy think tanks, the Civil Justice Council (the CJC) and JUSTICE, and then by the Civil Courts Structure Review (CCSR). Finally, it discusses how these develop‐

4 H. Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Jus‐ tice System in England and Wales (HMSO), 1995; H. Woolf, Access to Justice: Fi‐ nal Report to the Lord Chancellor on the Civil Justice System in England and Wales (HMSO), 1996. 5 HMCTS refers to Her Majesty’s Courts and Tribunals Service, which is the admin‐ istrative body that administers all the courts in England and Wales and the First-tier and Upper Tribunal: see HMCTS Framework Document (July 2014), https:// www.gov.uk/government/uploads/system/uploads/attachment_data/file/384922/ hmcts-framework-document-2014.pdf. 6 HM Treasury, Spending Review and Autumn Statement 2015, (Cmd 9162), 2015, at 69. 7 Terms of Reference – Civil Courts Structure Review (19 August 2015), https:// www.judiciary.gov.uk/civil-courts-structure-review/terms-of-reference-civil-courtsstructure-review/. 8 Briggs, Civil Courts Structure Review – Interim Report (December 2015), ; Briggs, Civil Courts Structure Review – Final Report (July 2016), .

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ments may potentially serve as a basis for procedural convergence across multiple European jurisdictions. (B) Background to the Reforms Historically, the aim of English civil justice reform was to improve the ability of individual litigants to secure the determination of their dispute on its substantive merits, economically and efficiently.9 The present re‐ form phase arises against a background that differs markedly from the his‐ toric pattern. Its impetus is unprecedented. It was necessitated by a politi‐ cal decision taken by the United Kingdom’s 2010-2015 Coalition govern‐ ment to reduce public spending as a response to the economic crisis of 2007.10 Its origin is thus a “retrenchment of the state”.11 This has mani‐ fested itself in three ways. First, the justice system has been subject to significant budgetary reduc‐ tions since 2010, as one part of the State’s general deficit reduction pro‐ gramme.12 The Ministry of Justice, the government department responsi‐ ble for funding HMCTS, has in this respect been subject to budget cuts of approximately £750 million or a third of its overall budget.13 This has af‐ fected the justice system in a number of ways. It has resulted in both a

9 A. Clarke, “The Woolf reforms: A singular Event or an Ongoing Process?”, in D. Dwyer (ed), The Civil Procedure Rules Ten Years On, OUP, 2010; J. Sorabji, Eng‐ lish Civil Justice after Woolf and Jackson – a critical analysis, CUP, 2014. 10 D. Grimshaw and J. Rubery, “Reinforcing neoliberalism: crisis and austerity in the UK”, in S. Lehndorff (ed), A triumph of failed ideas: European models of capital‐ ism in the crisis, 2012; Centre for Local Economic Strategies, Austerity Uncov‐ ered, 2014,