National Procedural Law Research Articles

Modifying Procedural Autonomy: Better Protection for Community Rights

The author highlights the conflicting demands for certainty and fairness within Member State systems of procedural law. The obstacles to effective implementation of European law are particularly difficult to overcome when the need to maintain certainty in the law has high priority, as in the case of procedural laws. Nevertheless, differences in procedural laws are severely undermining the uniform application of European law in the Member States. The European Court has adopted the approach that national legal systems should have procedural autonomy to a large extent — limited by the need to ensure that Community law rights are not subject to less favourable procedural conditions than those applying in the case of domestic law rights and that it does not become "virtually impossible" for a litigant to assert his or her Community law rights. This approach is unsatisfactory. It does not adequately promote the effectiveness of Community law rights. An alternative theory has emerged in recent ECJ case law, in which the purpose of the national law rule is investigated to determine whether it is compatible with Community law. This approach is also problematic, however. It leads to a high degree of uncertaintyover the validity of national procedural laws. The ECJ should retain its approach based on procedural autonomy, but identify more precisely the particular problems that the case law is trying to resolve. In particular, the key cases are concerned with the inadequate transposition of Directives into national law. Rules specific to this problems should be put in place. The obstacles caused by procedural laws should then be monitored to allow further intervention by way of harmonisation to meet identifiable needs.

Le Rapprochement des Procédures Civiles dans l'Union Européenne

The great flow of transactions permitted by the suppression of borders gives rise day after day to a large number of disputes. Seventeen different sets of procedural rules are put into action to deal with them, one for each Member State, but with the United Kindom having three of them. Procedures which differ from each other in their content, their speed and their cost, in the effectiveness of the measures they place at the disposal of litigants, and in their suitability for ensuring the enforcement of those measures. These differences constitute, in many respects, a serious obstacle to the establishment and functioning of the internal market. They obscure the rules of the game for the litigant who must bring or defend and action away from the state of his domicile. They find expression in very unequal procedural costs from one country to the next. The means of action put at the disposal of individuals are, in fact, of very variable efficacy. In order to remedy that state of affairs, a first attempt to tackle the issue was made on the basis of Article 100 A of the Treaty of Rome. Under the direction of Professor Marcel Storme, with the support of the European Commission, these efforts resulted in a draft directive which tried to eradicate the differences whose undesirable effects seemed to be the most serious. Being mainly technical in character, these proposals would have led to amendments of varying extent in the national procedural laws concerned. In the light of the Treaty of Amsterdam, which "communitarises" civil judicial cooperation, the Commission has recently addressed a Communication to the Council and the Parliament which outlines a certain number of "avenues to be explored for an improvement in the administration of justice in the European Union". The matters particularly addressed are the wider use and harmonisation of summary procedures for the payment of money, the availability for all individuals of a comparable armoury of procedures in relation to the availability of information about a debtor's assets, and the harmonisation of the rules on garnishment of bank accounts. The first two issues are directly inspired by the proposals made by the Storme Working Group. At the same time, several paths have opened up which are relevant to the international aspects of litigation. The are all intended to remove the undersirable effects which the remaining vestiges of national borders produce. This applies to the Brussels Convention of 26 May 1997, relating to the service of documents between EU Member States, and to the search for provisions adapted to facilitate the free movement and enforcement of judgments (simplification of the procedure for exequatur, creation of a "European enforceable instrument"), passing by way of the organisation of an exchange of information between the enforcement authorities in the various Member States to avoid the possibility that a clever exploitation of national borders may permit debtors evade pursuit by their creditors. To these must be added the draft directive on injunctions for the protection of consumers' interests. The entities entitled to defend the consumers' interests in one Member State should also have the legal capacity to do so beyond their national borders when the occasion arises.

The New German Arbitration Act - A User's Perspective

WITH THE New German Arbitration Act, the UNCITRAL Model Law has been adopted in German arbitral law. Germany is consequently taking up the recommendation expressed by the General Assembly of the United Nations in the Resolution of 11 December 1985. The significant text of the Resolution reads: The General Assembly recommends that all States give due consideration to the Model Law on International Commercial Arbitration, in view of the desirability of uniformity of the law of arbitral procedures and the specific needs of international commercial arbitration practice. The recommendation therefore has two objectives: one is harmonization and the second is modernization of national procedural law for international arbitration proceedings. The harmonization aim is at the forefront, although comments on the Model Law have often in a rather misleading way emphasized the goal of modernization. With both objectives, the originators of the Model Law have...