The EU directive on mediation in civil and commercial matters and the principle of effective judicial protection

Author:Antonio Maria Marzocco - Michele Nino
Position::Michele Nino, Ph.D., Researcher in International Law, Lecturer of International Law of Armed Conflicts, Faculty of Law, University of Salerno (Italy)
Pages:105-127
SUMMARY

The essay concerns the implications of EU Directive 2008/52/EC regarding mediation in civil and commercial matters on the right of effective judicial protection. After having underlined the importance assumed in the European Union by alternative dispute resolution, the essay examines the stages that led European institutions to the adoption of the Directive on mediation in civil and commercial... (see full summary)

 
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Antonio Maria Marzocco, Michele Nino
105
LESIJ NO. XIX, VOL. 2/2012
THE EU DIRECTIVE ON MEDIATION IN CIVIL AND COMMERCIAL
MATTERS AND THE PRINCIPLE OF EFFECTIVE JUDICIAL
PROTECTION
Antonio Maria MARZOCCO
Michele NINO
Abstract
The essay concerns the implications of EU Directive 2008/52/EC regarding mediation in civil
and commercial matters on the right of effective judicial protection. After having underlined the
importance assumed in the European Union by alternative dispute resolution, the essay examines the
stages that led European institutions to the adoption of the Directive on mediation in civil and
commercial matters. The article addresses the aims and the scope of the Directive and subsequently
focuses its attention on Directive dispositions regulating the “key aspects” of civil procedure. The
essay emphasizes that the Directive, in substance, allows both optional mediation and compulsory
mediation. However, compulsory mediation can contrast with the principle of effective judicial
protection. Furthermore, the essay deals with the relationship between compulsory mediation and
the principle of effective judicial protection, and identifies, examining a recent pronouncement of the
EU Court of Justice, the needed requisites to be respected in order that such contrast does not occur.
Keywords: ADR; mediation; judicial proceedings; access to justice; compulsory mediation;
principle of effective judicial protection
1. Introduction
By means of Directive 2008/52/EC of the European Parliament and of the Council of 21 May
2008, the European Union (EU) has provided the criteria for the regulation of mediation in civil and
commercial matters in EU Member States. This important intervention has the aim to improve access
to justice and to “facilitate access to alternative dispute resolution and to promote the amicable
settlement of disputes by encouraging the use of mediation and by ensuring a balanced relationship
between mediation and judicial proceedings”.1 Therefore, the present essay deals with the issue of
the relationship between mediation and judicial proceedings. In particular, it concerns the respect to
be afforded to the principle of effective judicial protection. In the first part (Sections 2-5, infra), the
essay reconstructs the road that led the European Union to adopt Directive 2008/52, classifies
mediation as an alternative extrajudicial method of dispute settlement,2 underlines the aims pursued

Michele Nino, Ph.D., Researcher in International Law, Lecturer of International Law of Armed Conflicts,
Faculty of Law, University of Salerno (Italy). Professional address: University of Salerno, Faculty of Law, Department
of International Studies, of Law and Ethic of Markets, Via Ponte don Melillo 1, 84084 Fisciano (SA), Italy; email:
mnino@unisa.it. Michele Nino wrote sections 1 to 5. Antonio Maria Marzocco, Ph.D., Researcher in Civil Procedural
Law, Lecturer of Civil Procedural Law, Faculty of Law, Second University of Naples (Italy). Professional address:
Second University of Naples, Department of Law, Via Mazzocchi, 5 (Palazzo Melzi), 81055, Santa Maria Capua
Vetere (CE), Italy; email: antonio.marzocco@unina2.it. Antonio Maria Marzocco wrote sections 6 to 9.
1 Art. 1(1), Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain
aspects of mediation in civil and commercial matters, OJ L 136, 24.5.2008, p. 3.
2 See Sections 2, 3, 3.1, infra.
106 Lex ET Scientia. Juridical Series
LESIJ NO. XIX, VOL. 2/2012
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
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3 See Sections 4, 4.1, infra.
4 See Section 5, infra.
5 Ibid.
6 See Section 6, infra.
7 See Section 7, infra.
8 See Section 7.1, infra.
9 See Section 8, infra.
10 Ibid.
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.

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