Harmonization of European Civil Procedure - Policy Perspectives

Abstract

European Civil Procedure is a rapidly growing field, judged by the numbers of directives and regulations churned out by the European Commission over the past decade. However, the practical impact of legislative acts passed under the powers of Art. 81 TFEU remains very limited. These measures of “horizontal harmonization” create uniform rules for disputes of any kind, yet they remain confined to cross-border cases. As the Commission moved beyond the issues of international jurisdiction and enforcement of foreign judgments, it placed European institutions alongside the national ones, which continued to govern domestic disputes. This results in duplicative sets of procedural rules which place a heavy burden on the judges who have to work with them. Another thread of European legislation does not bear the label of civil procedure at all, but purports to harmonize the domestic system of law enforcement and protection of subjective rights in selected substantive areas, such as intellectual property rights, competition law, and consumer law. Such measures of “vertical harmonization” remain confined to specific kinds of disputes, but they apply regardless of whether the dispute is international or domestic. In doing so, their practical impact is much greater than the one of horizontal measures. For European lawmakers, it is essential to keep in mind that the policies of law enforcement and protection of property rights deeply involve principles of civil procedure and that account must be made for this in drafting pertinent legislation.