Background and research questions
The book Procedural Autonomy Across Europe, Bart Krans and Anna Nylund (eds.), Intersentia 2020) draws on insights from a previous research project on the interaction between EU law and national civil procedural law (The European Union and National Civil Procedure, Anna Nylund and Bart Krans (eds.), Intersentia 2016). While a body of research on the growing body of EU civil procedural law has emerged, the perspective has mostly been top-down, one that seeks to systematise EU law, we believe that the perspective of the Member States, a bottom-up approach, has been explored to a limited extent.
Procedural autonomy of the EU Member States refers to the doctrine that in absence of EU law, the Member States can design their civil justice systems in the manner they find appropriate as long as the system renders EU law effective and equivalent protection. In the 1970s when the doctrine of procedural autonomy was first coined, EU rules on civil procedural were very scarce. The contemporary civil procedural landscape is very different. Nowadays there is a substantial body of EU law with direct or indirect implications for national civil procedural law, and hence, the context of procedural autonomy is very different. One may ask whether the term ‘procedural autonomy’ is still adequate.
We wished to explore how Member States perceive their room to design the civil justice system and procedural rules considering the increasing density of EU civil procedural law, and whether the term ‘procedural autonomy’ might be – perhaps at least slightly – misleading. Does the perception of the room to manoeuvre differ among the Member States? Does a specific directive or regulation, a line of case law or soft law pose a particular challenge for one or several Member States, and if so, what could the source of the tension be? Is there too little, or perhaps too much, room to manoeuvre? Is the procedural autonomy of Member States that do not participate fully in the Area of Freedom, Security and Justice and associated states substantially larger than that of Member States that participate in all aspects of judicial cooperation?
We decided to employ the same methodological approach in this book as in our book on The European Union and National Civil Procedure. We invited selected colleagues from representative EU Member States and associated countries (Belgium, England and Wales, Finland, Germany, the Netherlands, Norway, Poland, Slovenia, Spain and Sweden) to write on procedural autonomy in their respective country. We deliberately did not draft a questionnaire. We provided the authors with a short list of very general questions as a source of inspiration and asked them to write on the topic(s) they found interesting for their own country.
We chose this approach, because we wanted to explore this new territory in-depth. By giving the authors freedom to choose their perspective, we received contributions with various views on procedural autonomy. Some authors chose a specific rule or set of rules as their starting point: rules on legal costs or evidence, or the obligation of courts to enforce EU consumer law on their own motion. Other authors chose to explore the legal cultural aspects of procedural autonomy, or the impact of different types of EU law (hard law, case law and soft law). This way, we could explore traditional legal (doctrinal) and comparative legal aspects of procedural autonomy as well as structural, institutional and legal-cultural aspects. Furthermore, the authors selected different aspects of EU law. As a result, the book covers many topics related to procedural autonomy for civil cases. Thus, the texts in combination provide an in-depth analysis of a variety of legal instruments and doctrines. Most importantly, the authors provided us with insights we would never have thought of ourselves.
Of course, this approach entails some drawbacks compared to using a questionnaire. The findings are not directly comparable, since the authors are not all covering the same topics. Moreover, the authors use different approaches. Thus, we cannot know whether the issues raised are specific for ‘only’ that Member State or more general across the EU Member States. Moreover, the topic and approach might reflect the research interests of the author and other researchers from the same Member State could consider other topics more interesting. The issues raised are therefore not necessarily representative for what is going on in the Member States.
Nevertheless, we are happy with the approach we chose for this book, because it turned out to be a highly fruitful way for exploring new terrain. One reason is that many of the observations regarding both EU law and its implementation in national law are congruent across the contributions in the book. Another reason is that problems related to the general approach of EU law and weaknesses in the method of regulation are likely to entail problems for many Member States. Combining the insights of the contributions reveals patterns across the field and different approaches to procedural autonomy results in rich, multi-layered analyses.
We will not go into all our finding in this blog. The concluding and comparative chapter in the book consists of more than 25 pages, divided over 7 parts. Let us just mention here some key findings. The first key finding is not surprising: there is no consensus among the authors on the extent and nature of procedural autonomy, or even on whether procedural autonomy is still an adequate term. However, a far more important finding is that the original research question – whether Member States still have ‘room to manoeuvre’ – turn out to be misguided. It is more important to question whether the quality of EU civil procedural law is sufficiently high and whether the quality of implementation of these rules in the national law of the Member States is satisfactory. The authors identify plenty of weaknesses in EU civil procedure law, for instance the fact that the highly fragmentary character of EU civil procedure law results in inconsistent EU law, and the fact that EU law often piggybacks on national rules results in significant divergence in the application of the rules, instead of the harmonisation the rules were intended to produce. The knowledge of EU law is often less than optimal in the Member States and the method of implementation is oftentimes not the result of careful deliberation.
The main source of friction between EU law and national civil procedure law is the difference in approach to regulation of the civil justice system: the EU seeks primarily to ensure effective enforcement of selected policies, such as consumer protection, intellectual property rights and competition law, whereas national law seeks to create and maintain the coherence of procedural law. In this context, case law-based rules, some of which are limited to specific types of cases such as consumer cases, and sectoral hard law (i.e, rules regulating for instance cross-border cases or intellectual property rights only), are highly problematic for some Member States. The fact that Member States do not always appear to carefully consider how to implement the EU rules, results in increasing fragmentation of national law, and sometimes also less harmonisation than intended.
Based on our study, it is exceedingly difficult to assess the variation in the perception of the room of manoeuvre across the EU Member States and associated countries. Sometimes Member States over-implement rules, sometimes the opposite is true: Member States erroneously do not implement rules or fail to recognise the potential to improve their legal systems by benchmarking current rules with EU law. The varying quality of EU law and the lack of knowledge of EU law in some cases may be a problem in this respect. Furthermore, the intimate interconnections between procedural rules and substantive law necessitates voluntary implementation of EU law in Norway. Hence, Britain might need to align some of its procedural rules with EU law even after Brexit.
In the end, improving the quality of civil procedure law is a matter of cross-fertilisation and collaboration between national law and EU law: a continuing dialogue.
Posted by Professor Anna Nylund (UiT – The Arctic University of Norway) and Professor Bart Krans (University of Leiden).