European civil procedure: current status within the legal system of the European Union and its member states

• Main Author: V. Terekhov
• Format: Article
• Language: Russian
• Published: Dostoevsky Omsk State University 2017-06-01
• Series: Pravoprimenenie
• Subjects: european civil procedure; standards of court proceedings; european area of justice; eu regulations; eu directives; harmonization of legislation; europeanization; cross-border effect; approximation of national rules; recognition and enforcement of judgments
• Online Access: https://enforcement.omsu.ru/jour/article/view/84

УДК 347.9The purpose of the article is to provide a critical analysis of different approaches towards the notion of “European Civil Procedure”, to substantiate by means of legal and judicial practice, research papers a true essence and legal nature of the European Civil Procedure.The methodological basis for the study: general scientific methods (analysis, synthesis, comparison); private and academic (interpretation, comparison, formal-legal).Problems and basic scientific results: the notion of “European Civil Procedure”, which describes the process of EU Member States judicial cooperation, bears largely a conventional character. It is not used officially by the organs and institutions of the EU, or its Member States. Moreover, it assumes an unjustified monopolization of the European discourse on the side of EU’s initiatives, although Europe is not limited to that association neither in geographical, nor in a legal sense. However, the given notion has become quite colloquial and does not cause any difficulties to the beneficiaries, and thus we may use the terms “European Civil Procedure” (ECP) and “Civil Procedure of the EU” (CP EU) as synonyms.Different approaches towards the nature of the European Civil Procedure claim that it may be regarded as: (1) a separate (communitary) regime of Private International Law (or, otherwise, International Civil Procedure); (2) means to approximate national rules of Civil Pro-cedure; 3) a particular system of judicial decisions recognition; (4) an independent area of supranational law; 5) an aggregate of all or part of the qualities mentioned above.The system of EU Civil Procedure constitutes “federal” procedural law of the Union that functions side-by-side national procedural rules. It governs those relations that go beyond the borders of one Member State, but not the EU itself. Relations between Member States and third nations are still generally out of the federal competence.We need not to forget, however, that a genuine federal center does not only introduce centralized procedures, but also approves mandatory standards for all of the levels of the regulatory system (in other words, pursues approximation). A right of any federal state to exercise such competence does not find any questions due to supremacy of its authority. Still in the EU legal order the principle of its supremacy has a limited application and it is not obvious that the introduction of general norms for the Civil Procedure come within it. The existence of different standards of justice (28 national ones and one supranational) has a negative effect on the unity of the “area of justice”, making it illusory. In order to guarantee an equal level of judicial protection everywhere in the EU a procedural “bill of rights” is required, and it needs to be adopted at the “highest level” of the system.Conclusions. The EU Civil Procedure has a dual nature. In its own (narrow) sense it is a body of federal procedural law of the EU that is applied when a cross-border situation of intracommunity character comes into being. In a broader sense, it is also a combination of norms, rules and principles of justice that are adopted by the EU as a federal center for both community-wide and national levels of the judicial system in order to guarantee the unity to the area of justice. In the ideal case, the European area of justice has to be a coherent, unified and internally consistent system. Reality is, however, far from that image, since there are multiple problems of both legal and political nature that hinder the implementa-tion of these brave ideas.