MEP Emil Radev is the author of a key working document on establishing common minimum standards for civil procedure in the European Union (see https://europeanciviljustice.wordpress.com/2015/12/21/establishing-common-minimum-standards-for-civil-procedure-in-the-eu-the-legal-basis/). He has very kindly agreed to answer a few questions regarding the process of harmonizing Civil Procedure throughout Europe, a task which has never been done before on this scale. Even the Roman Empire did not stretch that far, and a federal country such as Switzerland only has a Code of Civil Procedure since 2011…
1. The working document states that “The free movement of judicial decisions is associated with the need to create a sufficient level of mutual trust between judicial authorities of different Member States” (p. 2). Should one understand that the state of the EU in terms of mutual trust is no as ideal as previously assumed by the EU institutions when advocating for the abolition of the exequatur?
MEP Emil Radev: As you say, it is the free movement of judicial decisions that is associated with the creation of a sufficiently high level of trust between judicial authorities of the Member States. The abolition of exequatur invokes precisely that trust. It is already a reality. However, we can always work to further improve cooperation and trust between judicial authorities. The title of the report – common minimum standards of civil procedure, and the possibility to implement a set of common principles to be followed in the process, would be another step towards improving that trust. The application of general principles will ensure equal protection of the rights and obligations of the parties in the process, which will help to facilitate the free movement and the recognition of judicial decisions in the Union.
2. The EU gave birth to European Civil Procedure with the European Order for Payment 10 years ago. Several instruments have followed, notably the European Small Claims Procedure. Both the EOP and ESCP were amended last month. The rationale is that these procedures are, sadly, not used to the maximum of their capacity in most countries. The working document seems to recognise the inherent limitations of optional instruments (“In contrast to optional instruments”, p. 7). Are we now talking of harmonisation because, assuming that a (near) complete set of civil procedure rules is adopted by the European Parliament and the Council within the next decade or so, the EU institutions want them to avoid the same fate as the EOP in the UK or the ESCP in France (i.e. being barely used)? In other words, is it the solution to the underuse of European instruments to make compulsory what the EU citizens and companies have not chosen voluntarily (for, at times, lack of awareness)?
MEP Emil Radev: It is true that these procedures are not used much in the Member States. In my opinion, this is due to the lack of knowledge rather than unwillingness of the parties to use them. A good information campaign and the training of lawyers in these non-binding instruments would significantly contribute to increase the rate of their use. It is also true that these instruments are scattered among various procedures. A single set of common rules would be useful to citizens and lawyers. More studies will be prepared that will help us take the final decision regarding the need of harmonization and to what extent the system of procedural rules in the EU would be harmonized.
3. The European Parliament has, at times, fought the (very) extensive interpretation of the legal basis by the European Commission, even if it was not as hostile to it as the Council. The EOP is a good example of that since the European Commission wanted originally to apply it to domestic matters despite the legal basis being Article 65 EC (now 81 TFEU). Should the fact that the working document refers to the “limitations” (p.3) of the existing legal basis be understood as a change of heart?
MEP Emil Radev: Not necessarily; this word is used to delineate the actual regulatory scope of the provision, which is limited to matters with cross-border implications. That being said, there is considerable literature on the possibility for a wider understanding of the cross-border limitation and this has also been extensively addressed in the context of the discussions on minimum standards of criminal procedure at EU level.
4. The working document states that “the time has come for a legislative proposal setting out common minimum standards of civil procedure law » (p. 2). One could note that common minimum standards of civil procedure in the EU already exist in the form of Article 6 ECHR and its extensive interpretation by the European Court of Human Rights. Why is the existing harmonisation on the basis of the ECHR not sufficient?
MEP Emil Radev: It is true that the European Convention establishes the right to a fair trial in Article 6. However, Article 13 on effective remedies applies only to the Convention rights and, more importantly, the basic principles stemming from these provisions, as rightly pointed out, are judge-made. This suggests that there is no systematic instrument where these principles can be found, which also limits the extent of harmonisation of national procedural regimes. Finally, the issue of enforcement of the case law of the ECtHR should also be taken into account, as well as the fact that the harmonisation of civil procedures should be left to the legislature, rather than the judiciary.
5. In the hypothetical event that the Treaties are amended in order to accommodate the British Prime Minister’s ‘ultimatum’ ahead of the EU Referendum in his country, would the European Parliament take this opportunity to advocate for an enlargement of the legal basis in civil procedure, as the working document gives the feeling that the choice is between a lack of ambition (the requirement for a cross-border element in Article 81 TFEU) or a lack of consistency (the piecemeal approach of 114 TFEU)?
MEP Emil Radev: My understanding from all discussions on BREXIT is that there will be no large scale revision of the Treaties, which only entered into force in 2009 and which function satisfactorily for the time being.
6. The working document states that the European Commission raised the issue of common minimum standards of civil procedure in the EU in 2013 (p. 2). I have personally compared this objective with ‘Destination Moon’, in homage to another leading figure of Brussels, Hergé (Objectif Lune, 1953). Hergé had Tintin reached the Moon just one year later, in 1954 (On a marché sur la lune). Clearly, we need more time! How long do you think till we truly reach the Moon, i.e. the harmonisation of civil procedure in the EU?
MEP Emil Radev: The process has just begun. Of course, the result and the length will depend first on the decision of the Commission to make a legislative proposal in this regard. Second, the position of the Member States will also be crucial. I think it will take quite some time before we have an active set of common principles in civil proceedings, but I am optimistic and I am sure that we will make progress.
Thank you very much for answering these questions
Biography of MEP Emil Radev:
Born in 1971 in Varna, Bulgaria. Graduated in Law at the University of Economics-Varna in 1997 and in Public and Regional Administration at the Varna Free University in 2006. Currently doing a Ph.D. in Civil and Family Law at the New Bulgarian University. Lawyer since 1999. Member of Varna City Council where he chaired the GERB Group and the Legal Affairs Committee from 2007-2009.
Member of the 41st and 42nd National Assembly (Legal Affairs Committee, Committee on European Affairs and Oversight of European Funds, Anti-Corruption and Conflict of Interests Committee) from 2009-2014.
Member of the European Parliament since 2014. Member of JURI committee in the European parliament.
Official webpage: see here