106 Lex ET Scientia. Juridical Series
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by and the scope of the Directive3 and identifies its principal dispositions governing the relationship
between mediation and judicial proceedings.4 As to the regulation of such relationship, the Directive
does not exclude the possibility for an individual State to provide cases in which the mediation
attempt is compulsory (compulsory mediation).5 In the second part of the essay (Sections 6-9, infra),
the authors examine the relationship between mediation and the right to access to justice.6 The
regulation of such relationship falls within the scope of procedural matters. For this reason, reference
is made to the principle of “procedural autonomy” of the individual States,7 which is subject to
certain limits, amongst which the principle of effective judicial protection assumes a priority role.8
Thus, the question that arises is whether compulsory mediation always contrasts with the principle of
effective judicial protection.9 To answer to this question, it is necessary to take into account, on the
one hand, the non-absolute nature of the above-mentioned principle10 and, on the other hand, some
requisites that the EU Court of Justice in the 2010 Alassini judgment has indicated are necessary in
order that a compulsory attempt to reach an out-of-court dispute settlement does not violate the
principle of effective judicial protection.11
2. The path of European institutions towards the promotion and development of
alternative dispute resolution in the European Union
Following the entry into force of the Treaty of Amsterdam, the necessity to assure the proper
functioning of civil proceedings in the area of judicial cooperation in civil matters having a cross-
border nature has become a priority under European Union law.12 According to ex Article 65 of the
Treaty establishing the European Community, as introduced by the Treaty of Amsterdam, this a im
was to be pursued through the improvement and the simplification of the recognition and
enforcement of decisions in civil and commercial cases, as well as decisions in extrajudicial cases,
and through 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 Member States”.13 It
is, however, following the entry into force of the Treaty of Lisbon14 that the importanc e of alternative
dispute resolution has been for the first time affirmed by a primary source of European Union law. In
particular, Article 81 of the Treaty of the Functioning of the European Union -which has replaced
Article 65 of Treaty establishing the European Community- provides that, in the context of judicial
cooperation in civil matters, the European Parliament and the Council, according to the ordinary
3 See Sections 4, 4.1, infra.
4 See Section 5, infra.
6 See Section 6, infra.
7 See Section 7, infra.
8 See Section 7.1, infra.
9 See Section 8, infra.
11 See Sections 8.1, 8.2, infra.
12 1997 Treaty of Amsterdam, OJ C 340, 10.11.1997.
13 Art. 65, Treaty Establishing the European Community, OJ C 325, 24.12.2002; see also ibid., art. 61(c).
14 2007 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European
Community, OJ C 306, 17.12.2007, which entered into force on December 1, 2009. As noted by an eminent
scholar, the Treaty of Lisbon extends the European Union’s capacity to act (“amplia la capacità di azione
dell’Unione”) in a number of areas such as public health, energy, civil protection, environment and climate changes:
G. Ziccardi Capaldo, Diritto Globale. Il Nuovo Diritto Internazionale (2010), p. 18.