Quo vadis, Europe? What’s at stake for Europe’s ability to act?

Europe faces a singular constellation of geopolitical, regulatory and societal challenges, pushing the boundaries of its dense apparatus. The current situation can be viewed as an important stepping stone for Europe, one in which regulatory and governing innovation can guide Europe to peaceful and successful solutions.

In this year’s edition of “Quo Vadis, Europa“, researchers at the Luxembourg Centre for European Law (LCEL) address the ability of Europe to act in specific areas.

Read Aritz Castro Landazuri’s guest editorial on EU core values under pressure in German in Tageblatt.

Read Maria Ana Pocas Lourenços’ guest editorial on EU competitiveness and fundamental rights in Paperjam (French or English).

Read Mark Konstantinidis‘ guest editorial on European trade and strategic autonomy, in Paperjam (French or English).

Read the editorial by David Althoff:

What’s at stake for Europe’s ability to act in civil procedural law?

“A topic that is less obvious when reflecting on ‘what is at stake for Europe’s ability to act’ is civil procedural law. Civil procedural law is about how private obligations and rights can be effectuated. It concerns the rules that apply to court proceedings and to the enforcement of judgments. It expresses which steps need to be taken in order to deem the procedure and its following judgment fair. These steps are mainly technical in nature, making civil procedural law a technical subject.

At the same time, a court belongs to the judicial branch of the government of a country. Procedural law is dependent on how the judicial system of a country, its administration of justice, is set up. How a court functions, how it can be applied to and how remedies can be enforced is part of the institutional structure of a country. This gives civil procedural law an additional fundamental nature that is connected to the way a country is institutionally organised. Therefore, it is not surprising that each country has its own civil procedural law. Civil procedural law is in the first place, national law. This is also the case for the Member States of the EU, subject to EU law being effective and the fundamental right to a fair trial.

In the context of the Area of Freedom, Security and Justice (AFSJ) and the internal market that the EU establishes, there is EU civil procedural law. This exists mainly for cross-border situations between the EU Member States to strengthen judicial cooperation and the internal market. In addition, some EU civil procedural law also applies to domestic situations, but these are limited to certain specific topics regarding the internal market. For these matters, the EU has competence. European civil procedural law is a prominent topic in legal academic literature. What is at stake for Europe’s ability to act in the realm of civil procedural law concerns its harmonisation.

A 2017 resolution from the European Parliament that deals with this and proposes ‘common minimum standards of civil procedure’. It is limited in scope to ‘cross-border implications’, because of the competence it is based on, including the matter falling within the context of Union Law. It aims to improve ‘trust’ in the ‘civil justice systems’ of the EU Member States, but at the same time does not completely replace the national procedural systems (p. 46). In 2020, the European Law Institute (ELI) and the International Institute for the Unification of Private Law (UNIDROIT) adopted the ‘Model European Rules of Civil Procedure (PDF file)’. These rules provide for ‘best practices’ (p. 5) and can be used to harmonise parts of domestic and cross-border procedural law in civil and commercial matters. Such rules are neither EU law nor national law, but are called ‘soft law’ and serve as a model that can be adopted by both national legislators and the EU. Instead of dealing with all areas of civil procedural law, the Model Rules focus on those where harmonisation is likely to be possible, considering the differences in the civil procedural law of countries (p. 5).

Both these approaches to harmonisation show that civil procedural law in Europe is dependent on the competence of the EU and the feasibility of harmonisation of the different procedural laws of the Member States. This can be related to the previously mentioned fundamental institutional nature of civil procedural law. For Europe’s ability to harmonise civil procedural law, it is necessary to find a balance between the national institutional structures of the Member States and the need to uphold EU law to serve its purpose and safeguard its principles and values. “