RICERCA ITALIANA     

European Criteria for the drafting of Codes of Civil Procedure (towards a unified European Code of Civil Procedure)

Università degli Studi di Padova

Abstract

The Research Program consists of two sub-phases.

First phase
In an initial phase, therefore, the aims of this Research will focus on the analysis of principal historical, philosophical, political and structural issues which are on the basis of the codification of the procedural civil law and, at the same time, on the analysis of the different national disciplines regarding the examination of the case and evidence, the interim enforceability, the garnishment, the jurisdictional summary procedures (interim and provisional) and arbitration and other instruments of resolution or composition of the controversies alternative to jurisdiction.
To this end, this Research will focus first of all on the recognition and eventual translation and cataloguing of the material (normative, doctrinal, jurisdictional, internal and community sources) considered useful towards fulfilling the objectives of the Research.
The results of this first part of the job will be collected in a data bank that will be realize with the material acquired
and selected from everyone Research-Unit .
Second phase
In the second phase, the Research will focus on identify and elaborate those “European criteria” which can serve as a basis towards a true harmonisation of European civil procedural discipline, and not the providing of a discipline articulated to be imposed on Member States and as such not easilly compatible with systems of common law.
The final objective of the Research is the recognition of those principles which, common to all systems, will be able to be welcomed by all Member States without fear of refusal, as well as the identification of criteria that allow a lessening of major points of contrast, to pave the way for the realisation of a new legislative base for an eventual Community Directive.
Primary objective of the job in this second phase, therefore, is to characterize the possible solutions to the problems that emerge in judicial cooperation between Member States of European Union, with specific reference:
a) to the harmonization of the civil procedural discipline existing in Member States;
b) to the determination of fundamental procedural aspects that guarantee the harmonization and that will be disciplines in a legislative instrument, regulations or directive;
c) to the participation and the collaboration in the European legislative procedures in course or in that will emerge during the development of the Research.
Nonetheless, the global frame of the judicial cooperation in civil matters will not be overviewed: not only will the research units cooperate with each other and join in one or several related actions; but all of them will proceed together towards the achievement of a common goal: a collection of European legislation in civil procedure, both in paper and in web version, that will be basis of future “European Code of Civil Procedure”.
This work of systematic re-organisation of law materials will be assisted by a wide and detailed index of content, in order to make as easy as possible the use of the "Code".
Finally, for publicizing the results of Research, the Research Projects aims also to organize a national and international Conference (probably in Autumn-Winter 2008), in order to present the research results will take place and to evaluate the further possibilities of harmonizing or unifying the civil procedure laws of the Member States in the fields which will have been studied by the several research units. <<<

Principal Investigator

Claudio Consolo Università degli Studi di PADOVA

Research Objectives

Within the framework of the general research program directed to individuate common principles and criteria in the draft of the procedural rules with modalities which allow a mutual comprehension among the UE Member States, the research program’s objectives are:

a) to explore the “path” of the codification of the procedural civil law on historical, philosophical, political and structural issues which are on the basis of the codification of the procedural civil law, which is closed to the draft of a single civil law code in the European States similar to Italy;

b) to examine some themes of procedural codification and to emerge common profiles and criteria for harmonization of the procedural law and for introduction of new European Code of civil procedure. The research will be dedicated, in particular:

b1) to analyze the possible patterns of examination of the case and evidence in the light of historical experience that must guide the predisposition of a new code of civil procedure;

b2) to the interim enforceability. In reference to this argument, the recent developments of the European civil procedure impose one deep reflection time to exceed the traditional dismissal to the lex fori and the consequent disparities of treatment that are come true second that the judgment comes from one rather than from another State member;

b3) to the garnishment. It represents the field in which reruns in more frequently way the necessity than an execution to the foreign country and in which, therefore, the necessity of uniform procedure rules is introduced with greater urgency, to concur an equal efficiency of the enforcement procedures (do not give last to protection of the principle of treatment parity);

b4) analysis of the profiles or criteria that emerge from the European procedural law with reference to the jurisdictional summary procedures (interim and provisional). Task of the research, therefore, will be to individualize and to put in evidence the aspects of the jurisdictional summary procedures, emerged from the legislations of the Members States in the European judicial space, distinguishing - in the widest category of the summary relief - those with structure and function provisional and "protective" from that are not;

b5) an analysis of the modalities with which the different European States have disciplined arbitration and other non-jurisdictional forms of resolution or prevention of controversies, in order to identify different and common elements. The aim of the research is to identify, on the one hand, common elements in national legislative discipline and, on the other hand, in the context of those principles and norms which prove different, verify whether, and in what measure, there is a degree of compatibility between them which could lead to the forming of a concrete point of contact between statuary norms;

In relation to these objectives, the research - in coordination with all Research-Units - will articulate its research along four fundamental lines:

a) to analyze the “path” of the codification of the procedural civil law on historical, philosophical, political and structural issues, which are on the basis of the codification of the procedural civil law;

b) the deepening of the main existing procedural models in the European judicial space, with reference to the examination of the case and evidence, to the interim enforceability, to the garnishment, to the arbitration and other non-jurisdictional forms of resolution or prevention of controversies, to the jurisdictional summary procedures (interim and provisional);

c) the study of the common procedural profiles and criteria for the harmonization of the European procedural legislation and for the drafting of European Code of civil procedure;

c) the articulation of legislatives proposals in order to drafting of “European Code of Civil Procedure” and in order to perspectives of harmonization of the various European procedural legislations.

The Research Program consists of two sub-phases.

First phase
In an initial phase the aims of this Research will focus on the analysis of principal historical, philosophical, political and structural issues which are on the basis of the codification of the procedural civil law and, at the same time, on the analysis of the different national disciplines regarding the examination of the case and evidence, the interim enforceability, the garnishment, the jurisdictional summary procedures (interim and provisional) and arbitration and other instruments of resolution or composition of the controversies alternative to jurisdiction. The results of this first part of the job will be collected in a data bank that will be realize with the material acquired
and selected from everyone Research-Unit .
Second phase
In the second phase, the Research will focus on identify and elaborate those “European criteria” which can serve as a basis towards a true harmonisation of European civil procedural discipline, and not the providing of a discipline articulated to be imposed on Member States and as such not easilly compatible with systems of common law.
The final objective of the Research is the recognition of those principles which, common to all systems, will be able to be welcomed by all Member States without fear of refusal, as well as the identification of criteria that allow a lessening of major points of contrast, to pave the way for the realisation of a new legislative base for an eventual Community Directive.
Primary objective of the job in this second phase, therefore, is to characterize the possible solutions to the problems that emerge in judicial cooperation between Member States of European Union, with specific reference:

a) to the harmonization of the civil procedural discipline existing in Member States;
b) to the determination of fundamental procedural aspects that guarantee the harmonization and that will be disciplines in a legislative instrument, regulations or directive;
c) to the participation and the collaboration in the European legislative procedures in course or in that will emerge during the development of the Research.
Nonetheless, the global frame of the judicial cooperation in civil matters will not be overviewed: not only will the research units cooperate with each other and join in one or several related actions; but all of them will proceed together towards the achievement of a common goal: a collection of European legislation in civil procedure, both in paper and in web version, that will be basis of future “European Code of Civil Procedure”.
This work of systematic re-organisation of law materials will be assisted by a wide and detailed index of content, in order to make as easy as possible the use of the "Code".
Finally, for publicizing the results of Research, the Research Projects aims also to organize a national and international Conference (probably in Autumn-Winter 2008), in order to present the research results will take place and to evaluate the further possibilities of harmonizing or unifying the civil procedure laws of the Member States in the fields which will have been studied by the several research units. <<<

Timescale

24 months

National and international background

a) The rumors about the introduction of a new code of civil procedure law highly increase the interest on historical, philosophical, political and structural issues which are on the basis of the codification of the procedural civil law, which is closed to the draft of a single civil law code in the European States similar to Italy. Within the framework of the general research program directed to individuate common principles in the draft of the procedural rules with modalities which allow a mutual comprehension among the UE Member States, the Padova Unit research program’s objective is to examine two important topics: enforceability of judgments and third party attachment.
As the first matter is concerned, actual developments of European law drive to abandon the traditional reference to the lex fori and the consequential differences of treatment on the ground of the judgments’ provenience. This goal has been recently achieved, for decisions about visit and kidnapping of minors, by Regulation 2201/2003, whose articles 41 and 42 recognize enforceability to the judgment certified as European Enforcement Order even if not enforceable in the state where it has been issued. If with that we have the confirmation that the interim enforceability of the judgments is perfectly in compliance with the European criteria of the “fair trial”, the distance towards the EEO, beyond rendering the exequatur superfluous, reduces the same principle (art. 31 Brussels Conv., art. 38 Reg."Brussels I") for which the exequatur presupposes the enforceability of the judgment in the State of origin.
The second topic is worth deepening because debts attachment represents the field where enforcement abroad urges more frequently and where need for uniform rules becomes more manifest on account of the diversity of attachment models existing in the various European state laws. These models have all in common the necessity of an “arrest” of the credit at the first moment of the procedure, but they present different modalities of enforcement, especially as to whether and when the allocation of the credit in payment has to be determined.
The frequency with which it is rerun to the garnishment on the international plan – which elective instruments for the satisfaction of the creditor pretensions – suggests an appraisal in order to improve the harmonization of such procedures: these perspectives are also shared by European reformers, whose most recent studies have concerned attachment of banking accounts.
b) The European procedural systems use various summary relief (protective and interim remedies), that are specifically dedicated – the first - to preserve the ability to grant effective relief by final judgement or to maintain or otherwise regulate the status quo and – the second – for interim enforceability of order for payment.
Fundamental examples of first type are – in addition to Italian provisional and urgent measures – the référé of French and Belgian procedural law, the Arrest and einstweilige Verfügungen of German procedural law and injunctions of Anglo-Saxon procedural law.
While, with reference to the second category (interim and interlocutory remedies), the examples more meant are the order for payment procedures, existing in numerous European States of civil law, and the summary relief and the interim payment of the Anglo-Saxon system.
To level of evolution of the harmonization of European procedural law, the entry into force of the Treaty of Amsterdam entailed the transfer of judicial co-operation in civil matters from the third pillar (Article K.1 (6) TEU) to the first pillar. According to Articles 61 (c) and 65 of the Treaty establishing the European Community, the Community adopts measures in the field of judicial co-operation in civil matters having cross-border implications and insofar as necessary for the proper functioning of the internal market. These measures include the elimination of obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Members States.
After the entry into force of the Treaty of Amsterdam, the European Council meeting in Tampere on 15 and 16 October 1999 endorsed the principle of mutual recognition of judgments and other decisions of judicial authorities as the cornerstone of judicial co-operation to be established within the Union. Under the heading “Greater convergence in civil law” it invited the Council and Commission to prepare new procedural legislation in cross-border cases. Orders for payment were explicitly mentioned as featuring among those crucial issues (Presidency Conclusions, point 38).
The European Council asked the Council and the Commission to adopt, by December 2000, a programme of measures to implement the principle of mutual recognition including the commencement of work on a European Enforcement Order.
The Commission has chosen a two-tiered strategy aiming both at the abolition of exequatur on the condition of the observance of certain minimum standards for all enforceable titles on uncontested claims regardless of the nature of the proceedings that have led to the decision or enforceable document and the creation of a specific harmonized procedure for the recovery of debts that are presumed to remain uncontested, namely the European order for payment.
For attaining the first objective the Commission has introduced Reg. CE n. 805/2004, that it institutes the European Enforcement Order for the uncontested credits.
For attaining the second objective, instead, the European Parliament and the Council set off on the adoption of Regulations on European Order for Payment Procedure for uncontested credits (see the proposal of Commission COM(2004)0173 and the legislative Resolution of the European Parliament of 13 December 2005).
Leaving from this state of things, the research fixes to selection - in the within of the jurisdictional summary remedies (provisional protective and interim relief) - the common profiles or criteria that show the possibility of harmonization of the procedural law and the possibility of introduction of new European summary procedures, for solving the problems of the circulation of these provisional measures in the European judicial space in application of the art. 31 of Regulations CE n. 44/2001.
In other words, in the perspective of the necessary harmonization of the various European procedural legislations and for the drafting of Code of civil procedure, the research of the Unit of Macerata has objective to make to emerge – from the analysis of the models of summary procedures in the Members States – the criteria that can inspire the future European unified legislation on "European provisional and protective procedure" and European summary procedures for enforcement order.
c) In the context of the most general program than search face to characterize of the canoni common for the writing of the trial-like norms with such modalities to render a better mutual understanding between operating of the States the members of the Union possible, the program of search of the Unit of Parma first of all resolves to do to analyze the various models of "trattazione" (written, oral and other intermediate outlines) and of probative instruction (based on the inquisitorial model or on the principle of party disposition). The more and more insistent voices that substain the cause of the introduction of a new code of civil render in fact of maximum interest surveying approximately the conception of the test, of which today we have one so to speak instinctive conception: we think, that is to the test as to an instrument it rations them and rationally controlable based on which they come the reconstructed facts specifically it characterizes to you and whose importance is predetermined from the ordering. This conception is the final outcome of a slow and twisted historical vicissitude, that it has seen a continuous one to run after itself of callbacks to the reason and pushes to the irrazionalità; tasks to the still recent experiences that exalt the confession like most acceptable of the tests and that, on such base have admitted whichever means in order to obtain it. Going behind hardly some century, tasks to conceptions still resistant of "globality of test", where it wanted that the test did not have to regard single facts, but the way to be and of behave of the persons; tasks to the tendency that continually comes up to make oneself to prevail the force of the reasonings and, therefore, the rhetorical to the language of the facts (a danger from which it seems threatened the probative tradition of the Anglo-Saxon world, all based on the ability of the parts and, above all, the defenders to supply to the jury, composed by common people, not necessarily acculturated, and, one evocative "scenic" performance). Students put into effect them of the right on the tests are orient to you to think that this discipline must be all collection in the procedure code and that it must much be limited for giving space to the requirement that the judge can use according to its prudent given appreciation whichever suitable element to fornirgli useful for the formation of its convincement. He thinks himself, in fact, that only in such a way he comes guaranteed in the higher way the search of the material truth and al same time comes given full performance to the right to the test of the part in the process, like expression of the right of defense constitutionally guaranteed (ex art. 24).
d) The project of study of Roma Tre Unity moves from the increasing interest, both international and domestic, for dispute resolution methods alternative to jurisdiction. The reasons of this interest are, beyond the necessity to reduce the burden of the jurisdictional courts, also the need of a faster definition of the legal action with reasonable costs, the opportunity of more elastic proceedings, easily customized according to the peculiarities of situations, and, last but not least, the natural confidentiality of the arbitral solution. Moreover, for the transnational trade relationship, it is essential the possibility to find an arbitral tribunal close to both parties, that it is not expression of the national jurisdiction of one party or the other.
Such alternative dispute resolution methods, usually known with the acronym ADR, refers to a heterogeneous phenomena nevertheless characterized by the fact that all of them are finalized to resolution or prevention of the claims without the resource of national jurisdiction. In particular, European legal operators have to face with a legislative regulation, often experimental, and with the difficulty to link in a systematic way the new means of dispute resolution with the traditional ones: this connection takes place with a lot of problems, because also the "classics" alternative methods elude a clear systematic organization.
With specific reference to ADR, the first complexity is given by the definition and description of category itself: an important attempt to define it can be found in the Green Book published in 2002 by the European Commission (Com (2002) 196) with the aim "to start a wide meeting of people interested on legal issues related to alternative dispute resolution in civil and commercial claims", and also in the related opinion of European economic and social Committee, published in 2003. Sub 1.1,2 of Green Book mentioned above, it is written that "alternative dispute resolutions, according to the present Green Book, will designate... the not jurisdictional procedures of dispute resolution governed by a neutral third part, with the exclusion of arbitration", and, sub 1.1 of the opinion mentioned above that "the so-called... ADR... constitute a friendly procedure by which a third party, neutral and independent, tries to find an agreement between the parts and to reach to a solution that composes their controversy".
Regarding the arbitration (that, among the alternative dispute resolution methods, is the most popular and more studied), in a comparative perspective, continue to persist, at least apparently, aspects of ambivalence and oscillation, approximately about its nature and the enforcement of the relative dictum, in particular respect to other alternative dispute resolutions and to jurisdiction.
It is therefore comprehensible, considering its importance among international conflict resolutions, the requirement of harmonization or, at least, of normative coordination among national disciplines; those needs had found partial satisfaction in some international conventions.
It is known the success, at least considering the number of adhesions, of Convention of New York of 1958 regarding the acknowledgment and the execution of the foreign arbitral awards; similarly, it is famous the attempt to create a uniform discipline for the commercial arbitration through the European Convention of Geneva in 1961. It is also known the fundamental role of arbitration rules performed by the permanent Institutions of Arbitration created within the Chambers of Commerce, at first the International Arbitration Court of the International Chamber of Commerce of Paris: such rules, disciplining in a complete and exhaustive way the arbitral proceedings, take place of the more and more pressing necessity of harmonization that is found, above all, in the field of the transnational trade.
With regard to the single country, in the last few decades we have been assisted to the development of arbitration legislation, with numerous reforms in different countries. As examples, in Italy, in the last 20 years, we had three laws of reform that have deeply modified the most important aspects of the institute; in Spain, the arbitration law had been reformed in 1988 and again in 2003; in United Kingdom, it has been issued the Arbitration Act in1996.
Actually in Europe, despite of the interest for normative coordination is very high, there is no project of legislative harmonization of arbitration, whilst the most important tools of coordination across countries derive from adhesion to and enforcement of international Conventions of world-wide matrix. In other words, every national legislation had provided to uniform to the conventional principles but, for the rest, it has operated in unilateral direction.
We lack of any attempt or plan of the European Community regarding the normative harmonization of arbitration and the other alternative dispute resolution methods, like it has happened for the executive protection of the credit, for the notification and for the acknowledgment and the execution of the judicial sentences. The negative outcome of the attempt, pursued by the Convention of Strasburg in 1966 promoted by the Council of Europe, is sadly famous.
The greater obstacle to the predisposition of a common normative regards the resistance of the single European countries to accept dispositions remote from its institutes. The differences are known: for example, in such countries (i.e. Italy and Spain) there are some limits for the choice and the composition of arbitral tribunals, while analogous limits seem to be unfamiliar in the rest of European community.
Beyond the diversity, it is without a doubt that also exist some common elements or that the same differences, as result of a deep analysis, may disclose a possible convergence.
The hugeness of the legal experiences of the European countries, and their scientific tradition, shows how much arduous can be an effort of coordination and harmonization. Nevertheless, the enforcement of alternative dispute resolution methods (at first, arbitration) seems to be an area that, sooner or later, will need an intervention at communitarian level, at least to complete the harmonization of different jurisdictional protection, that are functional for the best development of European market. <<<