The Section
for the Single Market, Production and Consumption, which was responsible for
preparing the Committee's work on the subject, adopted its opinion on 23 May
2005. The rapporteur was Ms Sánchez Miguel.
At its 418th
plenary session, held on 8 and 9 June 2005 (meeting of 9 June), the European
Economic and Social Committee adopted the following opinion by 157 votes to 1
with 1 abstention.
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1.
Introduction
1.1 Since the Tampere
Council of 15 and 16 October 1999, the European Commission has embarked upon a
process to create and harmonise legal instruments making it possible to develop
an area of freedom, security and justice, in which the free movement of persons
is ensured, within the limits of the European Union. Previously,
the Council had presented relevant provisions to facilitate the service of
judicial and extrajudicial documents between Member States, enhancing this
measure by ensuring improved information for citizens.
1.2 As a result of the
Tampere Council, the Commission has called on Member States to implement
procedures to recognise and enforce the resolutions, along with alternative,
out-of-court procedures for resolving disputes in civil and commercial matters,
in order to improve the operation of judicial systems in every Member State,
while European data-gathering systems and information networks are strengthened
by means of the new technologies made available to the European public.
1.3 With regard to the
first topic, the Council Regulation on jurisdiction and the recognition and
enforcement of judgements in civil and commercial matters
was submitted. Among other things, this provides for the simplification of the
exequatur procedure, adaptations
to the protective measures which will facilitate the enforcement of the
resolutions, and the recognition of a writ of enforcement effective in Europe.
1.4 In a similar vein,
the Commission presented a proposal for a Decision relating to the creation of a
European Judicial Network in civil and commercial matters.
This aims to set up a European instrument for judicial cooperation in order to
inform private individuals, professionals, institutions and administrations
about the laws and procedures applicable in each State, in civil and commercial
matters, which would be particularly useful in settling cross-border disputes.
1.5 Following the
Commission's submission, in 2002, of the Green Paper examining an alternative
approach to settling disputes in the EU, in which both Member States and
interested parties were extensively consulted, the proposal for a directive now
under discussion has been drawn up as a useful instrument designed to achieve
effective results, while safeguarding the inherent characteristics of national
law on dispute settlement in civil and commercial matters.
1.6 With regard to the
above point, the practice of mediation in consumer matters
is a useful precedent; over time it has proved very practical, partly due to its
incorporation into consumer protection laws. This system has successfully
adapted to new consumer habits, so that it can be applied to various areas
involving services as well as goods.
1.7 Mediation in civil
and commercial matters by means of judicial proceedings has certain
characteristic features that make it quite distinct from other forms of
mediation. Each State has sole responsibility for its judicial system and
mediation is a valuable method for settling disputes only if the litigant
parties consent to it. Both of these characteristic features impose constraints
on the Commission’s powers to flesh out a proposal for a Directive.
Nevertheless, the aim is to provide alternative dispute-settlement practices,
but, as the Commission points out, Member States must guarantee and maintain an
"effective and fair legal system" that meets the basic requirements for
protection of human rights.
2.
Substance of the proposal
2.1 The aim of this
proposal for a directive is to facilitate, through mediation, the settlement of
disputes in the field of civil and commercial law that may arise in the internal
market. This involves defining the concept of mediation – and mediator – whilst
leaving it to Member States to lay down the detailed judicial arrangements and,
in particular, the characteristics required of mediators.
2.2 Mediation can be
carried out voluntarily, at the request of the parties, or be initiated as a
result of the legal proceedings. The request may therefore be made by the
parties or by the courts. In both cases, the parties submit to mediation as a
means of avoiding legal proceedings or, once these have begun, of simplifying
them by complying with the results of the mediation. In both cases, the parties
can call for the enforcement of the settlement reached by means of a judgment,
decision or authentic instrument.
2.3 The content of the
acts of mediation may not be used as evidence in the judicial proceedings in the
cases set out in Article 6(1), thus protecting the confidentiality of the
parties and those involved in the mediation process. However, it may be used if
the parties and the mediator agree and, especially, if this is to protect minors
or prevent harm to the physical or psychological integrity of a person.
2.4 Periods of
prescription or limitation applicable to actions resulting from the proceedings
brought are suspended during mediation from the moment the parties or courts
request it.
3.
Comments on the proposal for a directive
3.1 The EESC believes
that this initiative by the Commission is a useful instrument, which will
further the actions undertaken at the Tampere Council to increase legal
certainty in the EU. A European legal framework for civil and commercial
mediation involves incorporating an instrument already in use in some Member
States – albeit mainly in the private dispute settlement sphere - into judicial
proceedings. This will provide a system enabling courts to propose a mediator
external to the proceedings, thus making it easier to settle disputes by
agreement between the parties.
3.2 The proposal for a
directive aims to increase the use of mediation in judicial proceedings within
the EU. This will bring advantages both in economic terms, by reducing the cost
of proceedings, and in social terms, by shortening otherwise lengthy civil
proceedings, which can have damaging consequences for the parties (particularly
family law cases), with the ensuing social problems that litigants often face.
At all events, mediation should not be confused with the conciliation procedures
commonly used in most Member States before legal proceedings begin, as it is the
parties and their lawyers, under the auspices of the judge, who will try to
reach agreement in order to avoid proceedings.
3.3 The mediator is an
important factor in achieving a good result. The trustworthiness and fairness of
his or her handling of the matter and, most particularly, his or her
independence in relation to the litigant parties, as well as his or her duty of
professional secrecy during mediation, improve the mediation’s effectiveness and
make a positive outcome more likely. However, in Article 4 of the proposal, the
conditions and requirements are left up to the Member States, with the emphasis
on self-regulation at Community level, and particularly European codes of
conduct. Although the proposal for a directive is not exclusively geared to
mediation in cross-border disputes, there will be a need to train those
appointed as mediators in Community law and, above all, to create a legal
framework that ensures the availability of this service in all Member States.
3.4 In mediation, it
is essential to guarantee the quality of the service rendered. Therefore, the
proposal should contain guidelines for a basic harmonisation of requirements for
practising as a mediator. The requirement for mediators to be competent and
independent, in line with the recommendations for mediation in consumer matters
would be one such prerequisite, and could be achieved through greater European
cooperation aimed at more uniform mediator training and appointment systems.
3.5 Matters covered by
mediation in civil and commercial law are defined in negative terms. Thus the
eighth recital excludes "processes of an adjudicatory nature such as
arbitration, ombudsmen schemes, consumer complaint schemes, expert determination
or processes administered by bodies issuing a formal recommendation, be it
legally binding or not, as to the resolution of the dispute". This is presumably
because there is a specific mediation procedure for each of the cases mentioned.
However, we should not rule out the possibility of mediation in civil actions
deriving from criminal or tax cases
which, although originally excluded, could help these civil actions to be
resolved.
3.6 The EESC agrees
with the rule preserving the highest level of confidentiality of data, both
civil and commercial, handled during the mediation process (Article 6(1)), as
regards both personal data and those aspects concerning the confidentiality of
relations; however, under no circumstances may the exclusion of such data as
evidence be invoked if the rights of minors or the physical or psychological
integrity of persons involved in the dispute are thereby threatened.
4.
Specific comments
Given that
mediation is a voluntary dispute settlement procedure which can only work if
both parties agree to participate and to accept the outcome, the future
Directive should clarify some extremely important aspects, to ensure that this
is a workable instrument and that it inspires confidence in the European public.
To this end, the EESC considers that account should be taken of some of the
following observations.
4.1 The proposed legal
framework for mediation has limited power in civil and commercial matters
but, despite the enormous volume of case law on matters covered by civil and
commercial law, Article 1(2) should establish the framework’s scope and should
not adopt the negative formula set out in recital (8). Furthermore, account
should be taken of civil and commercial actions resulting from other areas, such
as tax and administrative matters and even of civil actions resulting from
criminal actions.
4.1.1 In the future,
in the light of the experience of mediation carried out in accordance with the
proposal, the possibility could be considered of extending its scope to cover
administrative and tax powers.
4.2 One potential
problem arises from the differences between the various language versions of the
proposal, which could complicate its transposition.
Account must be taken of the fact that the organisation of the judicial system
falls within the sole competence of each Member State and that legal practices
may thus vary from one State to another. It would have to be made clear that it
is not only law courts that can recommend mediation but also judicial bodies and
also that these should not be the only bodies with the right to ensure
compliance with the mediation agreement. Any public body entitled under national
legislation to carry out such action has the right to do so.
4.3 The EESC wishes to
insist on the importance of the mediator throughout the process, in order to
ensure that the proceedings are carried through and are effective. The Committee
therefore considers that the Commission should propose guidelines that will
guarantee both a degree of harmonisation between Member States and the authority
and quality of mediators. The minimum requirements for mediators to be included
under Article 4 should include the following:
§
suitable qualification and training in the subjects of the
mediation;
§
independence and impartiality in relation to the litigant parties;
§
transparency and accountability
in their actions.
In particular, the freedom to
provide services should be guaranteed in all Member States, which would, in
smaller countries, ensure the independence of the mediator with regard to the
parties involved.
4.3.1 The Committee
broadly welcomes the option of a European code of conduct as a means of setting
the rules for mediators, although for this code to be valid, the Commission –
the relevant body in this case - would have to consider the fact that the
professionalism, independence and accountability of persons, both natural and
legal, practising as mediators should always be guaranteed as proposed in
relation to Article 4.
4.4 Depending on the
specific judicial characteristics of each State, the problem posed by the cost
of mediation cannot simply be solved by including this in the general court
costs. There should be a requirement either for tariffs in proportion to the
issue in question and its scale or, alternatively, a mandatory advance payment
that would enable the parties to decide whether or not it was worthwhile
proceeding. In any event, the procedure should never be more costly to the
parties than judicial proceedings.
Brussels, 9 June 2005.
|
The President |
The Secretary
-General |
|
of the
European
Economic and Social Committee
Anne-Marie Sigmund |
of the
European
Economic and Social Committee
Patrick Venturini |
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