The above analysis has shown the width and depth of an apparently ‘innocent’
provision, that of Article 47 CFREU. It should be underscored that the categories of procedural guarantees identified and analysed above are not watertight, and many issues and themes falling under one heading on one occasion, may be associated with another category at a different instance.177 What is more, there are various limitations to the scope and level of protection guaranteed by Article 47 CFREU. A balanced analysis shows that these limitations can only marginally affect a broad understanding of Article 47 CFREU, especially taking into account the existing EU competence on civil justice
173 Belgium, Slovenia, and Spain: technical experts’ fees; Bulgaria, Estonia, Latvia, Lithuania, and UK-Scotland: costs for the preparation of documents for the filing of a case; Greece: cost of other legal professionals such as notaries, bailiffs. On the costs of civil proceedings see inter alia, C Hodges, S Vogenauer, and M Tulibacka, The Costs and Funding of Civil Litigation. A Comparative Perspective (Hart Publishing 2010) 11-20.
174 This is the exceptional case of France.
175 Airey v. Ireland (n 79).
176 For more information on these alternative measures see, inter alia: C Hodges et al, The Costs and Funding of Civil Litigation. A Comparative Perspective (n 173) 20-28.
177 For example, legislative intervention in the administration of justice that can affect the judicial determination of a particular case, affecting the balance between the parties, can be dealt within the ambit of the equality of arms principle for a fair trial, as well as under the right to a court, or even to an
independent court. See, C Rozakis ‘The Right to a Fair Trial in Civil Cases’ (2004) 4 J.S.I.J. 96, 102.
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cooperation that directly impacts the right to effective access to justice (Article 81(2)(e) TFEU).178
I have thus argued that EU institutions may adopt legislative measures in order to reduce obstacles and difficulties that individuals face when resolving their disputes, enforcing their EU law rights before national courts. In the remaining chapters, I will investigate further the main argument, namely that access to justice may be used as a yardstick for the future development of EU civil procedure measures. Therefore, I will look at various examples of EU intervention in national procedural regimes examining whether they can realistically promote access to justice in the EU. Specifically, I will look at the creation of civil procedure law in the CJEU case law on national procedural autonomy (Chapter 4), as well as at examples of sectoral and horizontal secondary instruments of EU civil procedure law (Chapter 5) from an access to justice perspective.
Before embarking on this investigation though, I will address another preliminary question: when should EU institutions provide civil procedure rules that promote the application of the right of access to justice? In other words, which are the policy parameters that render such proactive stance on the part of the EU institutions both desirable and feasible? EU institutions will have to answer this question for every legislative proposal in the area of civil justice. Therefore, the next chapter offers the broad lines along which such in concreto justification for legislative action in civil justice will have to take place.
178 See, Maduro (n 11) 286, 289.
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3 Civil procedure law in the EU: unravelling the policy considerations
3.1 Introduction
‘Civil procedure […] challenges regulators. Its importance for the Internal Market may indicate the need for uniform rules and uniform approach, but its essence – the necessary balancing of different policy arguments […] – may require a more complex solution.’1
In the previous chapter, I examined the right of access to justice in the EU.
Using Article 47 CFREU as a departure point, I attempted to sketch the scope of a key right that is steadily gaining momentum in the supranational legal order. I argued that this is a broad right, capable of affecting many facets of a civil procedure regime in the process of facilitating the enforcement of EU law rights and obligations before national courts and tribunals, safeguarding the rule of law in the EU legal order. I suggested that this right be linked to the legal basis of Article 81(2)(e) TFEU, guiding EU institutions’
legislative activities in the area of EU civil procedure law. This tactic has the potential to promote a fundamental goal. That is, to facilitate the enforcement of EU law rights and obligations, by adopting solutions that consider all interests involved, mainly those of the defendant and of the good administration of justice, and preventing a situation of over-enforcement of EU law regardless of any countervailing considerations.2
This chapter seeks to shed some more light on the desirability and feasibility of civil procedure harmonisation for the promotion of access to justice in the supranational legal order. I will address this preliminary question before moving on with the examination of my main research question, namely the appropriate legal basis for civil procedure harmonisation. As a result, this chapter will offer a basis for the analysis of
1 M Tulibacka, ‘Europeanisation of Civil Procedures: In Search of a Coherent Approach’ (2009) 46 CML Rev. 1555.
2 On the involvement of these interests in remedial and procedural CJEU case law see: C M G Himsworth, ‘Things Fall Apart: the Harmonisation of Community Judicial Procedural Protection Revisited’ (1997) 22(4) ELR 291, 310-311.
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the broader research project. I will argue that civil procedure law constitutes a broad area, with cultural, economic, social, and historical overtones, which need to be given due regard to achieve a coherent approach.3 In this highly controversial environment, the fundamental right to effective remedy and fair trial should tie all policy parameters together.
Specifically, I will explore the premises of EU intervention in national civil procedural regimes in two steps. At an initial level, I will identify and analyse the ways in which effective dispute resolution and enforcement of law – as the primary functions of civil procedure law – are of particular interest to the EU, to justify the harmonisation of national procedural regimes. To this end, I will look at the traditional arguments put forward by scholars in favour of EU intervention in national legal systems, namely, the functioning of the Internal Market, economic benefits, and limitation of forum shopping. At a second level, I will endeavour to detect feasibility considerations that may limit the scope of EU intervention into national procedural regimes. In order to offer an overview of the stakes involved in the process of civil procedure law convergence in the EU, I will revisit arguments stemming from the economic theory of regulatory competition, the particularities of national legal traditions, as well as public choice theory and political failures. As usual, I will offer a summary of the main findings in the final part of the chapter.