Pros and Cons of European Civil Procedure

Abstract

European civil procedure is a conditional term that represents a supranational sphere of cooperation and harmonization of civil procedural law rules of the European Union Member States. Harmonization of civil procedural rules has not only positive, but also a number of negative aspects. Thus, European civil procedure is deprived of any internal structure and cannot be called a complex institution. European Union law rules mainly concern cooperation between States, they are deprived of such basic concepts as purposes, goals and principles of a branch of law, and do not regulate the procedure of proving and litigation. European civil procedure has developed through adoption of independent acts concerning relevant issues, which made it possible to resolve immediate problems, but when such acts become numerous, lack of systematization inhibits further development. Both the adoption of the Code and the adoption of more specific acts could help solve the problem. The scope of application of European civil procedure rules is limited to transboundary cases. A situation may arise when there is no any analogue of the relevant "unified" procedure at the national level. Thus, the advantages of the European civil procedure cannot be used to resolve a domestic case. It is impossible to use them with regard to third countries, moreover, the European project of procedural unification is opposed to the worldwide efforts on unification and harmonization of procedural law. Parties to the cooperation differ depending upon the sphere of cooperation, but the list of these States is exhaustive, none of the Sates intending to join the European Union can obtain such a status. However, given that the European civil procedure is not codified, this situation still undermines the unity of "a genuine European space of justice." There is no unified legal basis for the adoption of procedural rules: The competence of the European Union is limited by the principles of subsidiarity and proportionality, which makes it possible to adopt only such legal acts that have a clearly established legal "basis" in constituent agreements. Another notable problem is optionality of some requirements of European civil procedure. The current European procedural regulations are not only autonomous, but also optional, which means that the applicant is granted the right to choose whether European or national procedures will be applied to deal with the case.