INTRODUCTION: EU PROCEDURAL LAW BETWEEN FRAGMENTATION AND COHERENCE

The current framework for cross-border enforcement within the European Judicial Area is fragmented. Although some basic rules are found in the Brussels Ibis Regulation, which signifies the instrument of main reference in the EU judicial cooperation in civil and commercial matters, most instruments of the so-called ‘second generation’ of EU procedural law provide for more or less self-standing regimes. This fragmentation is an impediment to the practical application of the instruments: cross-border cases seldom occur in the practice of civil courts and the lack of familiarity with the EU framework is an additional impediment to the instruments’ practical implementation. Lack of familiarity with the pertinent instruments is a standard situation in and the biggest deficiency of EU procedural law.

Legislative fragmentation at the EU level may be overcome at the domestic level when the EU Member States adopt implementing legislation. Implementing laws may operate as ‘door openers’, guiding the legal practice to the applicable EU instrument in the case at hand. Different forms of implementing legislation are found in the EU Member States. Some national procedural laws have placed implementing legislation for the EU Order for Payment (EOP) procedure in the systematic context of national payment order procedures – the same solution applies to the European Account Preservation Order (EAPO) in some Member States. Other EU Member States opted for a solution that concentrates all (or most of the) implementing provisions of the EU instruments in one systematic segment within the national procedural code. This approach does not necessarily increase the coherence of the EU instruments inter se, as the latter are simply listed according to the moment of their enactment. Finally, there are Member States where no implementing legislation has been enacted with regard to the EU instruments – even with regard to instruments such as the EAPO Regulation, which expressly requires the designation of the national competent authorities. Recently, the EU Commission started infringement proceedings under Arts. 258 et seq. TFEU against Romania for having failed to adopt legislation implementing the EAPO. Regarding the situation at the national level, one must conclude that all EU Member States have not sufficiently used the different avenues to increase the visibility and accessibility of the EU instruments via implementing legislation.