National Procedural Rules Research Articles

National Procedural Rules and the New Boundaries of ECJ’s Control in the Light of Directive 93/13

National Procedural Rules and the New Boundaries of ECJ’s Control in the Light of Directive 93/13

Multiple sources of right to an effective remedy in EU migration and asylum law: Towards common standards on judicial protection?

Along with the progressive insertion of the right to an effective remedy in instruments of secondary legislation in different sub-areas of EU migration and asylum law, the question of interplay between the right to an effective remedy guaranteed at the level of primary law (Article 47 of the EU Charter of Fundamental Rights) and secondary law has been gaining more and more importance for the determination of boundaries between matters covered by EU law and those governed by national legislation. The present contribution will seek to examine the interactions between Article 47 of the Charter and the relevant provisions of secondary law in the field of migration and asylum. It will demonstrate that despite dense codification of the right to an effective remedy in different instruments of secondary law, Article 47 of the Charter continues to play a significant role in the case law of the Court of Justice of the EU concerning procedural guarantees conferred upon migrants and asylum seekers. A particular emphasis will be put on the analysis of recent case law developments that reveal the potential of Article 47 of the Charter to serve as a main tool for readjustment of national procedural rules.

State Liability for Judicial Decisions Infringing EU Law – the Polish Experience

The liability of Member States for damages caused by the issuance of a judicial decision in breach of EU law has been shaped in the jurisprudence of the CJEU, as a mechanism to ensure effective legal protection of EU citizens. Its primary purpose is to ensure that in a situation where a court of a Member State causes damage to a citizen by violating EU laws by its ruling, the citizen has a legal remedy to obtain compensation for such a violation. Based on the principle of procedural autonomy of the Member States, such claims can be asserted on the grounds of national procedural rules under the substantive legal grounds laid down by the CJEU in its case law.Research conducted by the authors of the article indicates that despite more than 18 years of Poland’s presence in the European Union, it is extremely difficult to find rulings on liability for damages for breach of EU law by Polish courts. It seems that such a state of affairs may be caused by ambiguities and interpretative doubts that arise on the grounds of Polish procedure in the case of claims for damages for breach of EU law by the courts. Both in the doctrine and case law there are far-reaching divergences as to whether the pre-judgment provided for in the Polish Civil Code should apply to claims for breach of EU law, and if so, when it should be applied. These doubts are reflected in the scant judicial case law on the issue in question. It seems that the indicated procedural doubts and lack of clarity as to the proper procedure in pursuing such claims may deter parties from more frequent initiation of proceedings to obtain compensation for breach of EU law by a national courts in the Polish context.

EU Action in the Field of Small claims Procedures and the Limits Resulting from its Implementatiob in the National Legal Systems

This article aims to illustrate, in the first part, the reasons that led the Union to adopt a regulation on small claims, focusing on the objectives set by the EU legislator in 2007 and 2015, through the amending regulation. In the second part, the effects that such an instrument is intended to have on internal legal systems will be examined, highlighting in a critical light the limits that derive from the need to integrate the EU mechanism with national procedural rules.

To intervene or not to intervene: intervention before the court of justice of the european union in environmental and migration law

ABSTRACT Little is known about the (legal) possibilities and practice of intervention before the Court of Justice of the EU, despite a seeming growth in strategic litigation by NGOs, especially in areas such as migration and the environment. This article fills this gap by looking at the legal framework as well as conducting empirical research. It also compares the practice of intervention before the CJEU with its counterpart in Strasbourg, the European Court of Human Rights. The findings show that intervention before the CJEU is difficult and hence limited. The more welcoming approach of the ECtHR can be a source of inspiration for the CJEU to relax its restrictive approach. The latter is justified on the basis of reducing differences between national procedural rules on intervention as well as the potential of interventions to improve the quality and reasoning of CJEU judgments.

Europejski charakter sądu krajowego

The aim of this article is to demonstrate the European character of a national court which, by ruling on the basis of EU law, becomes an EU court. The following premises confirm it. Firstly, it is an element of the EU justice system and, together with the CJEU, is obligated to guarantee the effectiveness of EU law. In carrying out the entrusted task, it follows the principles defining the EU legal system: the principle of primacy and the principle of direct effect and direct application, which serve to implement the meta-principle of effectiveness of EU law. However, they do apply to acts that have direct effect. In other cases, the domestic court uses a pro-EU interpretation, i.e. reinterprets the norms of national law in the light of the purpose and effect of EU law. In de facto transferring the indicated obligations to the national ground, the national court applies national procedural rules, and at the same time adjusts their effectiveness to the needs of EU law. In performing the above-mentioned duties, national courts were granted the right to refer questions for preliminary ruling to the CJEU.

The Interrelation between Public Participation and Access to Justice in the eia Context in the Face of the Increasing Use of Digital Technologies: Comment on the cjeu Judgment in the A.Flausch et al Case (C-280/18)

Abstract The article analyzes the cjeu Judgment in the A. Flausch et al case, which concerns the compatibility of the Greek procedural rules relating to specific aspects of the public participation in the eia context and to a specific aspect of access to justice (time limit) with the respective EU Law provisions in the face of the increasing use of digital technologies in the public participation procedures. This ruling is important, because it sets limits to the procedural autonomy of ms when it comes to the rules that are applied to the eia-related disputes and those that concern the public participation arrangements. It demonstrates, though, the lack of a steady line in the Court’s jurisprudence concerning the standards for assessing the national procedural rules and the role of Article 47 cfr. Moreover, the Court did not lay the ground for an interpretation of the ΕU public participation provisions in a way that an obligation for taking measures could be established, with the aim to ensure equal participation opportunities.

Admissibility of a National Limitation Period Under the Principle of Effectiveness in EU Law

Like most of the central legal questions in the field of civil law, the question when a debt becomes time-barred is not harmonized within the EU, but is governed by rules at national level. This applies normally even in situations where the grounds of the claim itself are based on EU legislation. In this situation the applicable national rules must meet the requirements of equivalence and effectiveness. The requirement of effectiveness provides that national procedural rules must not render the exercise of rights conferred by EU law virtually impossible or excessively difficult. This article analyses under what circumstances national limitation rules may become inconsistent with the principle of effectiveness. The finding is that in this assessment the most influential criterion is whether commencement of the limitation period is postponed until the creditor has or should have had the possibility to enforce their claim, or if the creditor has in any case had a real possibility to present a claim prior to expiry of the period. If the answer is negative, the question must then be asked whether this outcome, namely the creditor’s claim becoming time-barred, is justifiable by the objectives of the prescription regime, and whether the norms that led to this outcome are similar to corresponding norms in other legal systems. Perhaps the most important factor here is the length of the applicable ‒ expired ‒ limitation period. If it is seen as sufficiently long in proportion to its objectives and not particularly short in international comparison, the prescription regime should most likely be held as admissible in the light of the principle of effectiveness. Law of obligations, European Union law, prescription, limitation of actions, the principle of effectiveness

Towards a new EU regulatory law on residential mortgage lending

The measures enacted so far at European level to address the global financial crisis are likely to have limited effects as they are still market efficiency oriented. Accordingly, this study aims to explore how the EU Charter on Fundamental Rights may be useful to achieve a more human right dimension in EU regulatory law.,The work departs from the current commodification of housing worldwide and the limited capacity of EU to tackle new housing challenges. The work takes the link already established by the CJEU between EU consumer law and the EU Charter on Fundamental Rights one step further and addresses the potential implications concerning residential mortgage lending.,The main finding is the potential influence that the EU Charter of Fundamental Rights may have on EU regulatory mortgage lending, as there are indicators of a bifurcation of mortgage law regimes at the EU level, separating home loans from other mortgages.,The influence of the Charter of Fundamental Rights on EU regulatory law, mainly consumer law treated in a human rights dimension, could be a first step to treat housing as a social good and not as a commodity in the EU. This could lead to a completely new approach concerning the traditional rules governing residential mortgage loans.,The potential constitutionalisation of consumer law and the impact of the CJEU cases on national procedural rules have already been addressed by scholarship. The present work goes one step further as it addresses the potential implications of the EU Charter of Fundamental Rights on EU regulatory law in terms of the potential bifurcation of EU rules on mortgage lending.

The Collective Private Enforcement of Data Protection Rights in the EU

Article 80 of the General Data Protection Regulation (GDPR) requires Member States to introduce collective redress – under the form of representative actions – in their procedural legal order, with the aim of fostering private enforcement. Accordingly, certain entities, such as consumer associations, can litigate on behalf of data subjects. In principle, European regulations do not need to be implemented by Member States. However, the GDPR created a special situation by enacting about fifty open clauses, thereby allocating some free room to national legislators. Additionally, in light of the principle of procedural autonomy, the protection of data subjects’ rights can only be ensured with the assistance of adequate national procedural rules. In light of this, the present paper examines the procedural aspects of representative actions and analyses the recent legislative measures adopted in France, Belgium, Spain and Germany in order to comply with Article 80 GDPR. Since cross-border cases are likely to arise, the second part of this research project tackles private international law questions regarding international jurisdiction, inasmuch as it directly impacts access to justice. Lastly, concluding remarks are provided.

Analyse Comparative / Comparative Perspectives

Over the years, a number of regulations have been adopted at EU level in an attempt to facilitate and simplify access to justice in cross-border litigation. Despite the various actions undertaken by the European legislator to establish a uniform procedural framework with regard to certain types of cross-border claims, numerous differences continue to exist. The recent efforts to digitalise cross-border procedures through the e-CODEX project in order to allow electronic filing of European uniform procedures claims between Member States have raised awareness of the complexity and the impact of national procedural rules on the application of the European uniform procedures. Empirical data on the service of documents rules applicable in the European Order for Payments claims as well as domestic procedures used for equivalent purposes was collected in 16 EU jurisdictions. This paper investigates the way in which the implementation and coordination between the national service of documents rules and the service standards set by the Regulation impact on the application of the European Order for Payment and, subsequently, on the parties’ access to justice. To conclude, the paper focuses on the possible solutions and actions that could mitigate the difficulties encountered in the present legal framework.

The EU General Principle of Effectiveness and Judicial Federalism in the EU: Theorising EU Judicial Protection from a Federalist Perspective

This paper explores the impact of the EU principle of effectiveness on the EU and national judicial systems from a federalist perspective. Legal scholarship has devoted significant attention to this principle, being an element of the “national procedural autonomy test” jointly with the principle of equivalence. It is established ECJ case law that national courts are required to apply procedural rules which comply with these principles when enforcing EU law. In particular, the principle of effectiveness is applied in order to ensure that EU-derived rights are effectively enforced at national level. This paper argues that the principle of effectiveness enhances judicial federalism in the EU. As a matter of fact, while federalist political reforms are strongly contrasted in the EU, the EU judicial system presents federalist features. Notably, the application of the principle of effectiveness by the ECJ has furthered the federalist relationship between EU and national courts by granting discretion to national courts in the enforcement of EU rights, which become subject to national procedural standards. At the same time, notwithstanding the principle of effectiveness is used in this context of an area of competence left to the Member States, such as procedural rules, through this principle the ECJ has influenced national judicial practices when enforcing EU rights. For instance, the principle of effectiveness may be applied to partially limit national courts’ decisional powers through the imposition of interpretation obligations aimed at granting EU law with full effectiveness, or to require disapplication of national procedural rules undermining the achievement of EU policies. In this sense, by allocating judicial powers between the EU and the national jurisdictions, the principle of effectiveness leads to a hybridisation of the EU and national judicial tools.

Article 47 of the Charter precludes national procedural rules that allow decisions to be taken in environmental matters pending litigation on participation in that decision-making

Article 47 of the Charter precludes national procedural rules that allow decisions to be taken in environmental matters pending litigation on participation in that decision-making

European civil procedure: current status within the legal system of the European Union and its member states

УДК 347.9 The purpose of the article is to provide a critical analysis of different approaches towards the notion of “European Civil Procedure”, to substantiate by means of legal and judicial practice, research papers a true essence and legal nature of the European Civil Procedure. The methodological basis for the study: general scientific methods (analysis, synthesis, comparison); private and academic (interpretation, comparison, formal-legal). Problems and basic scientific results: the notion of “European Civil Procedure”, which describes the process of EU Member States judicial cooperation, bears largely a conventional character. It is not used officially by the organs and institutions of the EU, or its Member States. Moreover, it assumes an unjustified monopolization of the European discourse on the side of EU’s initiatives, although Europe is not limited to that association neither in geographical, nor in a legal sense. However, the given notion has become quite colloquial and does not cause any difficulties to the beneficiaries, and thus we may use the terms “European Civil Procedure” (ECP) and “Civil Procedure of the EU” (CP EU) as synonyms. Different approaches towards the nature of the European Civil Procedure claim that it may be regarded as: (1) a separate (communitary) regime of Private International Law (or, otherwise, International Civil Procedure); (2) means to approximate national rules of Civil Pro-cedure; 3) a particular system of judicial decisions recognition; (4) an independent area of supranational law; 5) an aggregate of all or part of the qualities mentioned above. The system of EU Civil Procedure constitutes “federal” procedural law of the Union that functions side-by-side national procedural rules. It governs those relations that go beyond the borders of one Member State, but not the EU itself. Relations between Member States and third nations are still generally out of the federal competence. We need not to forget, however, that a genuine federal center does not only introduce centralized procedures, but also approves mandatory standards for all of the levels of the regulatory system (in other words, pursues approximation). A right of any federal state to exercise such competence does not find any questions due to supremacy of its authority. Still in the EU legal order the principle of its supremacy has a limited application and it is not obvious that the introduction of general norms for the Civil Procedure come within it. The existence of different standards of justice (28 national ones and one supranational) has a negative effect on the unity of the “area of justice”, making it illusory. In order to guarantee an equal level of judicial protection everywhere in the EU a procedural “bill of rights” is required, and it needs to be adopted at the “highest level” of the system. Conclusions. The EU Civil Procedure has a dual nature. In its own (narrow) sense it is a body of federal procedural law of the EU that is applied when a cross-border situation of intracommunity character comes into being. In a broader sense, it is also a combination of norms, rules and principles of justice that are adopted by the EU as a federal center for both community-wide and national levels of the judicial system in order to guarantee the unity to the area of justice. In the ideal case, the European area of justice has to be a coherent, unified and internally consistent system. Reality is, however, far from that image, since there are multiple problems of both legal and political nature that hinder the implementa-tion of these brave ideas.

Passing-on of Overcharges and the Implementation of the Damages Directive in CEE Countries

The article focuses on the concept of passing-on of overcharges and the peculiarities of its regulation by the Damages Directive. The Damages Directive obliges Member States to ensure that the defendant in an action for damages may invoke the passing-on defence. Moreover, the Directive establishes the new framework and the main principles that govern the application of the passing-on defence. The national case law on passing-on is very insignificant in Central and Eastern European countries and many questions are expected to be raised in the courts of the CEE Member States. While discussing the concept of passing-on in the Damages Directive, a lot of emphasis should be paid to the issue of causation. Causation will definitely be the subject of most of the questions in cases when an indirect purchaser will bring a claim for damages. Causation may be tricky when an indirect purchaser claims it suffered an ‘overcharge harm’ because of passing-on. In most cases, the issue of causation will be decided mainly by national courts based on national procedural rules. Depending on the situation, passing-on may be used as a basis for the claim (as a ‘sword’) or as a defence (as a ‘shield’). It could be used as a basis for the claim by an indirect purchaser, in case s/he has suffered any harm because of the illegal actions of a cartelist or a dominant company. At the same time, it could be used as a defence by the infringer against a claim for damages. The article also analyses the specifics of the implementation of the Directive into the national laws of CEE Member States.

The Influence of EU Law on National Civil Procedural Law: Towards the Adoption of Common Minimum Standards?

Abstract: The impact of European Union law on the national procedural rules applicable in civil matters was initially very limited despite the fact that in recent years civil judicial cooperation has become a constantly evolving daily reality within an enlarged market which has called for greater protection for citizens of the Union and not only. On the other hand Union Institutions in recent years and especially after the Treaty of Lisbon have sought as we have seen both through solid jurisprudence and through continuous, precise and concrete interventions by the Community legislator to give a new context of harmonization and evolution in the field of European civil procedural law and as a consequence a necessary impact in the national context of Member States.

Business Judgment Rule: A Generally Applicable Principle?

This article examines the reach and applicability of the business judgment rule as developed by US case law to civil law countries – especially countries from the European judicial area – that hold for an objective standard of due care and a wide margin of discretion for managers in making business decisions. The economic crisis and the awareness of the lack of predictability of all relevant economic parameters when making business decisions, make the applicability of the business judgment rule highly relevant. In light of this, the present article elaborates on the concrete functioning of the business judgment rule and focuses on its different components. Thereby, the business judgment rule is divided into a substantial and a procedural part. The paper’s findings are that only the substantial part of the business judgment rule may be applied in civil law countries that hold for an objective standard of due care for managers. However, the procedural part of the rule is likely to conflict with more specific national procedural rules that usually prevail.

LOS ELEMENTOS DE LA COMPETENCIA JURISDICCIONAL

This study deals with the elements that determine juris-diction of the Chilean legal courts. It addresses the explanations of legal scholars about those elements, considering then as insufficient. Exploring a comparative point of view and using the framework of our national procedural rules, it is presented other jurisdiction's criteria. Finally, this study discusses the traditional perspective used by national legal research that classifies competence between an absolute and a relative one.

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

Over the years, a number of regulations were adopted at EU level in an attempt to facilitate and simplify access to justice in cross-border litigation. Despite the various actions undertaken by the European legislator to establish a uniform procedural framework with regard to certain types of cross-border claims, numerous differences continue to exist. The recent efforts to digitalize cross-border procedures through the e-Codex project in order to allow an electronic filing of European uniform procedures claims between Member States have raised awareness as to the complexity and the impact of national procedural rules on the application of the European uniform procedures. Empirical data on the service of documents rules applicable in the European Order for Payments claims as well as domestic procedures used for equivalent purposes was collected in 16 EU jurisdictions. This paper investigates the way the implementation and coordination between the national service of documents rules and the service standards set by the Regulation impact on the application of the European Order for Payment and, subsequently, on the parties’ access to justice. To conclude, the paper focuses on the possible solutions and actions that could mitigate the difficulties encountered in the present legal framework.

Laikinosios apsaugos priemonės ‒ nacionalinės teisės netaikymas kaip veiksmingos teisminės gynybos Europos Sąjungoje sudetinė dalis

The principle of loyal cooperation established in the EU law obliges the courts of the Member States of the EU to ensure the effective judicial protection of rights of persons stemming from the EU law. In the absence of harmonized norms of the civil procedure at the EU level, national courts are procedurally autonomous in enforcing judicial protection of the above mentioned rights, however, in applying national laws they shall comply with principles of equivalence and effectiveness of the EU law. In cases concerning violation of rights stemming from the EU law, courts of the Member States are faced with applications for the indication of provisional measures necessary to ensure effective judicial protection. The European Court of Justice treats such provisional measures as an integral part of the right to effective judicial protection. Compliance with the principle of effective judicial protection of the EU law requires national laws to guarantee the right to obtain provisional measures before national courts. In the light of the case law of the European Court of Justice, two situations where application of provisional measures may be granted by national judges shall be distinguished: (i) the first case concerns the suspension of the application of national laws incompatible with EU law pending decision on such compatibility, and (ii) the second one deals with the suspension of application of national measures implementing EU legal acts pending the decision on validity of such EU legal act. Under the first type of situations, national courts shall apply procedural guarantees embodied in the national laws. Under the second one, the ECJ has spelled out minimum uniform conditions making judicial protection effective: national procedural rules shall satisfy the principle of equivalence and the principle of effectiveness. In practice, a problem is frequently faced when such kind of provisional measures in not expressis verbis embodied in the text of national law. This hinders the right of the parties concerned to make use of such provisional measures significantly. Such hindrances limit the right of the parties concerned to effective judicial protection and may lead to violation of the EU law. For instance, The Code of Civil Procedure of Lithuania does not provide for special rules concerning suspension of national legal provisions in the above-mentioned situations. However, bearing in mind that the Court of Justice recognized the right to obtain interim measures before national courts to be an integral part of the EU concept of direct, immediate and effective judicial protection, national court should have the right to grant such provisional measures. Therefore, it is submitted that it would be appropriate for the national legislator of Lithuania to resolve the question on filling this gap in national legal system.