Consideration of draft report on the implementation of Directive 2008/52/EU on certain aspects of mediation in civil and commercial matters
It is clear that the principle of access to justice is fundamental and its realisation is one of the main objectives of the EU-policy in the field of civil justice cooperation. Effective and efficient justice systems are of great importance, inter alia, to the proper functioning of the internal market, to economic stability, to investment and to competitiveness. In line with this principle, mediation could be seen as a means to improve the efficiency of justice system and to reduce the hurdles that lengthy and costly judicial procedures create for citizens and businesses. It can therefore contribute to economic growth. Mediation may also contribute to maintaining good relationship between the parties as, contrary to judicial proceedings, there is no ‘winning’ or ‘losing’ party, which is particularly important, e.g. in family law cases.
For these reasons the european legislator introduced the Mediation Directive (2008/52/EC). Its central objective is the facilitation of access to alternative dispute resolution and the promotion of amicable settlement of disputes, as well as a balanced relationship between mediation and judicial proceedings. Although compulsory mediation would promote the use of mediation as an alternative to in-court-dispute resolution, such a development could be viewed as being contrary to the voluntary nature of mediation. As the European Court of Justice has already held , prior implementation of an out-of-court settlement procedure for specific disputes would not be problematic. However a series of safeguards would need to be put in place to ensure that effective judicial protection is not hampered.
As a result adequate safeguards need to be put in place in mediation processes to limit the risk that weaker parties, such as consumers and unrepresented litigants, are being deprived of their right to an independent judicial determination or have the perception that they are being deprived of it. It is therefore of utmost importance that mediations ensure that weaker parties do not settle a dispute without understanding their proper legal rights and that more powerful parties do not use speedy dispute resolution procedures, including mediation, as a means of avoiding their legal obligations or improving improperly their legal position against other parties.
Throughout the last years the implementation of this Directive was assessed by several studies and reports. Some of the main findings of these studies are the following:
Almost all Member States opted to extend the Directive’s requirements transposing measures to domestic cases too. However the objectives of the mediation directive towards encouraging the use of mediation and especially achieving a “balanced relationship between mediation and judicial proceedings” have not been achieved. Mediation is used in less than 1% of the cases in court on average in the majority of Member States.
A number of Member States allow the use of mediation in civil and commercial matters, including family and employment matters, while not explicitly excluding mediation for revenue, customs or administrative matters or for the liability of the State for acts and omissions in the exercise of State authority.
All Member States foresee the possibility for courts to invite the parties to use mediation, with fifteen Member States introducing the possibility for courts to invite parties to information sessions on mediation.
Less than half of the Member States have introduced an obligation in their national laws to spread information about mediation.
Eighteen Member States introduced binding quality control mechanisms.
Nineteen Member States require the development of and adherence to codes of conduct.
Seventeen Member States encourage training or regulate it in their national legislation.
In this regard it shall be also highlighted that at present there is no reliable and comprehensive statistical data on mediation. Furthermore there is a lack of information regarding mediation and its advantages in most Member States. That is why data collection and information on mediation matters shall be efficiently improved (for example through well organised information campaigns and through the obligatory creation of national registers of mediated proceedings) to further promote mediation and increase public trust in its effectiveness, as well as to achieve improved cooperation between legal professionals.
In this perspective I would like to recommend the competent authorities to assess the need to develop EU-wide quality standards for the provision of mediation services, especially in the form of minimum standards ensuring consistency, while taking into account the fundamental right of access to justice as well as local differences in mediation cultures.
Moreover the Commission shall undertake a detailed study on the obstacles to the free circulation of foreign mediation agreements in the Union, as well as to provide financial incentives for the parties, in order to use mediation as an affordable and effective way to solve conflicts in internal and cross-border disputes in the EU. In any case the rule of law and ongoing international developments shall be taken into account also in this field.
Thank you for your attention
(deadline for tabling amendments is 08.04.2017 AT 12:00 ...)
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We want a Europe with growth, social cohesion and solidarity, without everlasting austerity
We are fighting for a Europe that puts people above markets and money
We need a Europe with stable labour conditions for all
We need a Europe that respects and takes care of the environment
A Europe of workers welfare
A Europe where agreements and Treaties will apply to all
We need equal treatment for all Member States, not a multi-speed EU
We need a Europe of more democracy and respect for people’s decisions
We want a Europe that embraces refugees and immigrants
We want a Europe where EU Parliament’s voice will be more powerful
We demand a Europe of equality without discrimination based on gender or sexual orientation
We need a Europe that has at its core equality and respect for the citizens
At Rome we go with the triptych: Democracy, Labour and Growth
CONSIDERATION OF AMENDMENTS REGARDING THE DRAFT REPORT ON MONITORING THE APPLICATION OF EU LAW 2015
I would like to warmly thank all colleagues, who in total tabled 72 amendments regarding the draft report on monitoring the application of EU Law 2015. Your important contribution may improve and enrich the content of this report, where possible. Given that the appropriate application of the european law may lead to a fair, solid and inclusive Europe, I can confirm that I will take into account especially the amendments which in my opinion seek to safeguard the above mentioned crucial aim. Same applies for amendments which stress the need to effectively protect the fundamental european values and rights enshrined in the Treaties and the Charter of the Fundamental Rights, as well for amendments that contribute to further clarifications of this report. Though I fear that it will be difficult to draft enough comprehensive compromise amendments, as the most of the tabled amendments are self-contained. As a result they can not easily be covered by compromise amendments.
On the other hand I would also like to express my regret for some amendments that delete parts of my report, which intend to stress the negative effects of the implementation austerity measures in Member States on european legal institutions and on european citizens. In my view it is indispensable especially in times of economic and political crisis to highlight for example the fact that all EU institutions even when they act as members of groups of international lenders, are bound by the EU Treaties and the Charter of the Fundamental Rights of the European Union. It is also necessary for a just and appropriate application of the EU-law to stress that EU institutions should refrain from signing and implementing agreements or memoranda whose consistency with EU law but also their effectiveness is highly disputed, as they negatively affect the rights and lives of many european citizens; and in fact it is almost impossible for individual and Member States, within the existing legal framework of the EU to litigate succesfully against such infringements.
It takes strength and courage to admit the present deficiencies regarding the application of the EU but it is absolutely worthy. Because the acceptance of crucial real facts may open the way for a fairer and better european construct.
 For example Amendment 11 of Mr. Cavada that stresses the need to establish a new mechanism, providing a single and coherent framework, building on existing instruments and mechanisms, which should be applied in a uniform manner to all EU institutions and all its Member States;