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7719 results in Intersentia

Page 171 of 386

  • EU Civil Justice at the Harmonisation Crossroads?

    • By Eva Storskrubb, Associate Professor (docent) of Procedural Law and researcher at Uppsala University, Sweden.
  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp 11-34

  • Summary

    INTRODUCTION

    At a conference in 2016, Professor Marcel Storme looked back at the plea he had made over 30 years ago, in 1986, in favour of the unification of civil procedural rules within the EU. He noted that the project that he later headed and that resulted in the so-called Storme Report of 1993 had removed a taboo and opened the doors to civil procedural harmonisation at the EU level. However, despite the time that has passed since Professor Storme's plea and the Storme Report, we have yet to see a comprehensive civil procedural harmonisation project in the EU. At the same conference, Professor Storme eloquently referred to Erasmus of Rotterdam in stating that, ‘Indeed, only fools can dream of such a simple approach.’ I will in this chapter argue that there are several current developments that indicate we may be closer than ever before to the harmonisation crossroads of EU civil justice.

    First, it is pertinent to set out some of the background and context to these current developments in EU civil justice, taking the institutional perspective into account. In depicting the state of play, the various strands of civil justice will first be briefly presented (section 2.1). Next, the results of the institutional positions and regulatory choices made so far will be analysed (section 2.2). These practices and choices have led to the fragmented landscape of EU civil justice that we have today. This fragmentation in itself may be a trigger factor that occasionally calls for further harmonisation. However, there are additional ostensible pressure and trigger factors for harmonisation that will be presented (section 3), namely: (i) mutual trust, (ii) the rule of law, and (iii) soft law. Against this backdrop it will be possible to analyse whether any institutional and regulatory changes are likely to emerge at the potential harmonisation crossroads (section 4).

    STATE OF PLAY

    STRANDS OF PROCEDURAL DEVELOPMENT

    Traditionally, the EU was not considered to have competence in the field of procedural law, and the Member States were considered to have autonomy over national civil procedure. The awareness that the Member States ‘procedural autonomy is de facto limited has emerged gradually, and various developments mean that today the traditional perception is no longer correct.

  • Ex Officio Application of the Unfair Terms Directive Cases against Consumers: A Swedish Perspective

  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp 153-170

  • Summary

    INTRODUCTION

    This chapter deals with the ex officio application before Swedish courts of the Unfair Terms Directive. The Directive contains two related, but different, means of providing consumer protection before domestic courts and other public enforcement mechanisms (in the wide sense). One of the means concerns consumer protection in individual cases and the other aims at consumer protection as a public interest. The former draws on the traditional tools and objectives of civil procedure (individual compensation with a retrospective focus on the circumstances in the individual case), while the latter is designed to allow for public interference with sellers and suppliers for the prospective objective of correcting individual abusers, but primarily to clarify the law and deter future abuses.

    The following will be limited not only to one aspect of the general subject but also to one part of that aspect: the obligation on Swedish courts to act of their own motion to safeguard consumer interests in individual cases where consumers are defendants. First, the public enforcement of consumer protection will be dealt with only insofar as it concerns individual disputes where unfair terms in consumer relations are of relevance. Second, situations where consumer protection emerges in cases where the consumer acts as claimant will be left out. This delimitation may be surprising since recently the EU legislature has been particularly active in relation to public enforcement and devising mechanisms for conflict resolution where consumers are initiators. Still, I would say that the most frequent way in which an unfair term under a consumer contract comes to be tried before a court or a quasi-court (or to be settled without the involvement of the judiciary) is where the seller/supplier directs a claim for payment against the consumer. Hence, I have considered it relevant to use that angle in a discussion on the practical implementation in Sweden of the requirements of consumer protection before the courts.

    The focus will be on the requirements of the Directive, as revealed through the case law of the European Court of Justice (ECJ), in relation to the obligation on national courts to protect consumer interests ex officio.

  • The EU's Influence on Norwegian Civil Procedure through National Substantive Law

    • By Maria Astrup Hjort, Associate Professor at the University of Oslo where she holds the Chair for Civil Procedure.
  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp 111-124

  • Summary

    INTRODUCTION

    European Union Member States are said to have procedural autonomy as long as national civil procedure rules comply with the principles of equivalent and efficient enforcement of EU law. However, over the years, the EU has increased its influence over national civil procedure on the pretext of adopting measures to establish and improve the functioning of the internal market.

    Not being part of the EU, it might seem like Norway has been largely a spectator to this development. However, Norway is a party to the Agreement on the European Economic Area (EEA), which extends the single market and free movement of goods, persons, services and capital between EU Member States and non-EU EEA Member States. The Agreement, which is between the EU and European Free Trade Association (EFTA), came into force in 1994. National courts interpret the EEA Agreement in national proceedings. When interpretation of EEA law is unclear, the national court may request an advisory opinion from the EFTA Court.

    The EEA Agreement does not include any procedural regulation, but according to Article 3 of the agreement, ‘[t]he Contracting Parties shall take all appropriate measures … to ensure fulfilment of the obligations arising out of this Agreement’. To reach the goal of the EEA Agreement – legal homogeneity and effectiveness in the EEA region – effective application of substantive law oft en requires changes to the national civil justice system.

    The EU/EEA principles of homogeneity and effectiveness were recognised in the preparatory works to the Norwegian Dispute Act, which was draft ed in 2001, but the EU influence on Norwegian civil procedure was presented as being only modest. The law commission that draft ed the Dispute Act highlighted Article 3 of the EEA agreement, mentioned above, which is almost identical to Article 4(3) of the Treaty on European Union (TEU). It stated that being an EEA Member State had not led to a similar development to the one found in the EU, in terms of harmonisation or specific procedural rules. On the other hand, the law commission underlined that ongoing reforms in the EU could mean a greater impact on the national civil procedure rules of EEA Member States.

  • The ELI-UNIDROIT Project: An Introduction and an English Perspective

    • By John Sorabji, Senior Teaching Fellow at University College London and the principal Legal Adviser to the Lord Chief Justice of England and Wales and the Master of the Rolls.
  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp 35-60

  • Summary

    There is a long tradition of civil procedural reform in Europe. In England and Wales (England), for instance, a fetish is made of reform. It is embarked upon approximately every ten years. Equally, there is a long tradition – although perhaps not one that has always been carried out consciously – which has seen national civil procedural systems across Europe converge. As Stürner noted in 2004,

    England is the motherland of the common law and common law procedure, but the [Woolf reforms of 1999] bring English civil procedure closer to the Continent and indicate a remarkable convergence between the different systems.

    To a common lawyer, the view from England would be much the same. Convergence across systems has been a feature of the recent procedural past. Notwithstanding such convergence as there has been, there have been few conscious attempts to produce common principles of European civil procedure, unlike, for instance, attempts to articulate common principles of European contract law. There have been equally few attempts to produce a common code of civil procedure for Europe. In this chapter, one such attempt, the most recent one, to develop a common code of civil procedure for Europe is examined. That attempt is the project, entitled ‘From Transnational Principles to European Rules of Civil Procedure’ (hereafter referred to as ‘the project’), being carried out jointly by the European Law Institute (the ELI) and the International Institute for the Unification of Private Law (UNIDROIT). In particular, the project's background, methodology and early influence is examined. Finally, its potential future effect on both national and European Union civil procedure is considered.

    BACKGROUND TO THE PROJECT

    The project formally began in October 2013 via an initial exploratory workshop. Three factors lay behind its inception. The first was the lack of any principled progress, noted above, in the development of a common European Code of Civil Procedure. There is a suggestion – and it can be put no higher than that – that Sir Jack Jacob, England's leading civil procedural scholar from the 1960s until the end of the 1990s, attempted to devise a ‘uniform procedural code’ for the then European Common Market in the 1970s.

  • Family Maintenance and Multi-Speed Integration: A Norwegian Perspective

    • By Anna Nylund, Professor of Law and Head of the Research group for procedural law and dispute resolution at the University of Tromsø – Th e Arctic University of Norway.
  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp 209-230

  • Summary

    FAMILY MAINTENANCE AND MULTI-LEVEL REGULATION

    Globalisation, free movement of labour and migration affect regulations on judicial co-operation and cross-border proceedings in family matters, including family maintenance. Since the turn of the millennium, EU (procedural) family law has emerged as a field of law. The EU Maintenance Regulation was draft ed concurrently with the 2007 Hague Convention on maintenance, creating a direct link between EU law and international law. Before then, the Brussels regime on the jurisdiction and the recognition and enforcement of civil and commercial matters had a few provisions regulating family mediation. So did its parallel instrument, the Lugano Convention, which extends the free movement rulings to the entire single market, including European Free Trade Association (EFTA) states. Despite the fact that the Agreement on the European Economic Area (EEA) widens the single market and the four freedoms to states outside the EU, the development of family law in the EEA or EFTA has stagnated. International law and EU law on family maintenance have taken a leap forward and formed a connection. Simultaneously, the connection between EU law and EFTA law has weakened: the Treaty of Amsterdam has developed the competences of the EU, whereas EFTA law has maintained the status quo.

    Currently, family maintenance is regulated on five levels: (1) on an international level through the Hague regime, (2) on an EU level, (3) on an EFTA level, (4) on a regional level, and finally (5) on a national level. The three first levels of law are interconnected and partially overlapping. However, a multi-level approach may be beneficial for regulating family maintenance in a multi-speed Europe. A multi-level, multi-speed approach may also increase complexity and opacity, creating an intricate web of regulation.

    This chapter examines the interplay between instruments at different levels and discusses whether the relationships are constructive or disruptive. The existence of several levels of regulation results in complexity, yet the levels are complementary, filling lacunae. This chapter explores how different levels of law could be used to enhance integration of civil procedure, including the advantages and disadvantages of each level. The focus is on managing multispeed integration, where some countries are part of, or closely tied to, the single market, but do not participate in judicial co-operation.

  • Europeanisation of Civil Procedure: Overcoming Follow-Up Fragmentation through Bottom-Up Harmonisation?

    • By Wolfgang Hau, Professor at the Ludwig-Maximilians-Universit ä t Munich, where he holds the Chair for Private Law and German, International and Comparative Civil Procedure.
  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp 61-76

  • Summary

    Starting from the well-known fact that the European law of civil procedure is fragmentary by nature, this chapter points to the unwanted phenomenon of follow-up fragmentation on the Member State level and considers whether and to what extent this could be overcome through bottom-up harmonisation, i.e. autonomous reception of European solutions into national law.

    STARTING POINT: LIMITED EUROPEAN COMPETENCE

    CROSS-BORDER CASES

    According to Article 81 of the Treaty on the Functioning of the European Union (TFEU), the European Union is competent to harmonise procedural rules for judicial co-operation in civil matters with cross-border implications. This explicitly includes the elimination of obstacles to the proper functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States (Article 81(2)(f) TFEU). Over the years, an impressive number of legal instruments (regulations and directives alike) have been based on Article 81 TFEU, providing the area of freedom, security and justice with a finely-meshed and mainly well-functioning legal framework for international civil litigation.

    Meanwhile, however, it seems as if the European legislative process is slowing down considerably, and the potential of Article 81 as a source for harmonisation in the field of civil procedure is almost exhausted. This is partly due to its express limitation to cross-border cases and partly due to the absence of political intent. But this is not a matter of course, as can be seen in the recent European Parliament resolution on common minimum standards of civil procedure in the EU. Seizing upon an opinion that has been expressed on many occasions in the past, most notably by the European Commission, the Parliament contended that the current interpretation of ‘cross-border implications’ is too narrow and should therefore be construed in a broader manner. As a consequence, the Parliament has made recommendations for a directive on common minimum standards of civil procedure that should be applicable even in cases in which both parties are domiciled in the same Member State as that of the court seized, provided either that enforcement of the judgment takes place in another Member State or that the matter in dispute falls within the scope of EU law.

  • Consumer Protection and EU-Driven Judicial Activism in the Netherlands

    • By Alain Ancery, Legal Counsel for a bank. He has previously worked as a Law Clerk at the Supreme Court of the Netherlands., Bart Krans, Professor at the University of Leiden, the Netherlands, where he holds the Chair of Private Law and Civil Procedure Law.
  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp 125-140

  • Summary

    EU-DRIVEN JUDICIAL ACTIVISM

    It is very likely that consumers are unaware of their rights in civil cases. Therefore, if a consumer is involved in a civil case before a court and is not represented by a legal professional, it is likely that he will not bring forward all the relevant legal aspects of the case. To take a simple example, say a company has delivered some form of good or service to a consumer and states aft erwards that it follows from its general terms that a consumer has to pay a certain additional amount. The consumer refuses to pay the additional amount. If the company starts civil proceedings and files a claim against the consumer before a civil court, it is far from certain that during these proceedings the consumer will raise the issue of whether the general term on which the claim is based is valid. The consumer may not be aware of his rights under the Unfair Terms Directive. The court may be aware of the fact that the claim is perhaps based on an unfair term, but that issue is not brought forward in court by one of the parties. Will the court apply national rules that are based on the Directive on unfair terms ex officio? If so, the court will decide ex officio whether the general term at issue is unfair or not.

    The vast amount of case law of the European Court of Justice (ECJ) on ex officio application of EU law has not gone unnoticed by Dutch courts. On the contrary, the numerous decisions the ECJ has issued on this topic in the field of consumer protection are studied carefully and taken seriously by Dutch courts. Dutch courts try to comply with European case law on ex officio application of EU law, and there are many decisions on this topic by Dutch courts. Dutch courts are trying to fit this ECJ case law into the Dutch civil procedural system. The topic has several aspects and has led to several questions concerning the role of national (in this case Dutch) courts.

  • Conclusions on Civil Procedure and Harmonisation of Law

    • By Anna Nylund, Professor of Law and Head of the Research group for procedural law and dispute resolution at the University of Tromsø – Th e Arctic University of Norway., Magne Strandberg, Professor of Civil Procedural Law at the University of Bergen, Norway.
  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp 231-242

  • Summary

    INTRODUCTION

    As the book has provided us with a range of perspectives on the effect of European and international hard law, case law and soft law on national civil procedure law, it is now time to provide over-arching and comparative perspectives. Drawing on the earlier chapters, our aim is to shed light on some of the questions raised. Are some of the north-western European jurisdictions more affected by European rules than other jurisdictions? Are such effects also seen in national court practice? Are there discussions on the methods for implementing EU/EEA law in these jurisdictions?

    Although these questions are general in the sense that they concern all types of European and international influence on national civil procedure, we will structure our discussion along the same lines as the structure elsewhere in the book. Most of the discussion will focus on comparisons within the topics found in the previous parts of the book (sections 2 – 5), but we will also compare the impact of each type of law and discuss selected over-arching issues (section 6).

    HARD LAW INFLUENCE ON NATIONAL CIVIL PROCEDURE

    During the last two decades or so, the list of EU regulations and directives concerning civil procedure law has become long and rich. The list includes a number of regulations and directives that primarily concern matters of civil procedure, especially for cross-border cases, and those that primarily concern a certain branch of substantive law but nonetheless include certain procedural rules for that law. A characteristic feature of these directives and regulations is their fragmented nature – they either apply only to cross-border cases or only to certain substantive cases. Hence, the EU approach to civil procedure differs from the national approach, where civil procedure law is typically regulated in general codes providing rules for all sorts of civil cases.

    As is noted by several authors in their chapters, it is challenging to incorporate fragmented EU hard law into a general national civil procedure law system. Incorporation is discussed in particular by Wolfgang Hau, who lists three possible kinds of voluntary over-implementation of EU hard law for the purpose of maintaining a coherent national regulation of procedural matters in general.

  • The Role of the Judge in Consumer Cases – A German Perspective

    • By Ivo Bach, Professor of Civil Law, Medical Law, and European and International Private Law
  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp 141-152

  • Summary

    INTRODUCTION

    DICHOTOMY OF INTERESTS: IMPARTIALITY VS. CONSUMER PROTECTION

    The position of judges in consumer cases is oft en inconvenient: they are torn in two different directions by two different sets of legal rules. On the one hand, procedural law requires them to be impartial: they must not grant any support to either one of the parties. On the other hand, substantive law itself is not impartial, but clearly sides with the consumer. The reason for this partiality is quite evident: it is an attempt to compensate for the at least potential imbalance in power and knowledge between a consumer and a professional.

    It is not my intention in this chapter to question the premise that there is, normally, indeed such an imbalance in power. Instead, I focus on the question of what it means for the judges ‘role in consumer cases if we accept that premise. Is it sufficient for the substantive law to try to compensate for the imbalance so that the judge can stick to his role as an impartial entity? Or must the judge contribute to the goal of consumer protection and support the consumer in the proceedings, and if so, to what extent?

    DICHOTOMY OF LEGAL SOURCES: EUROPEAN LAW AND NATIONAL LAW

    In large part, these questions cannot be answered solely from a German perspective. This is simply because the German perspective is not crucial. Europe has taken over: consumer law is one of the core areas of EU legislative competence. Whenever substantive law is penned by the European legislator, the perspective of national procedural law suffers a certain decline in relevance. It must adhere to the targets set in Brussels (or in Luxembourg, where relevant). However, since my intention is to discuss not the European perspective but rather the German one, I have primarily restricted myself to the question of whether German rules of civil procedure actually meet European targets. Having answered this question, however, I turn to those remaining areas of law that are not shaped by European targets (yet) and in which the domestic German perspective therefore remains crucial.

  • Maintenance and Multi-Level Harmonisation: A European Union Perspective

    • By Volker Lipp, Professor of Civil Law, Civil Procedure, Medical Law and Comparative Law at the Faculty of Law at Georgia Augusta University G ö ttingen, Germany.
  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp 193-208

  • Summary

    CROSS-BORDER MAINTENANCE CASES WITHIN AND OUTSIDE THE EU

    Family law issues are oft en seen as being culturally more sensitive than other areas of the law and, therefore, less apt for harmonisation either within the EU or on an international level outside of it. However, family law cases in general, and maintenance cases in particular, are becoming more and more transnational due to the increasing mobility of people. Despite the diversity of national laws on family maintenance and its cultural sensitivity, the need for coherent rules in cross-border maintenance cases and international co-operation has been recognised since the 1950s by the UN and the Hague Conference on Private International Law (Hague Conference).

    The EU, on the other hand, did not pay much attention, generally speaking, to the field of family law, or to family maintenance in particular, for a long time, even where it had the power to legislate, namely in relation to cross-border cases in the field of international civil procedure and private international law. The old Brussels I regime and most of its accompanying instruments, as well as the Lugano Conventions, do cover maintenance cases, but apart from a special rule on jurisdiction, these instruments do not take into account the vulnerable situation of the maintenance creditor and the ‘need for speed’ in these cases. Moreover, they do not address international co-operation as a means to provide support, but instead leave this completely to the 1956 New York Convention.

    This old system is now being replaced by a new system. The EU, with its Tampere program of 1999, set out to simplify and accelerate, inter alia, maintenance proceedings. As the Hague Conference also planned to overhaul their conventions on maintenance, both projects were being worked on in a co-ordinated manner. It helped that the EU as such had become a member of the Hague Conference. The EU now is a party to the two new Hague instruments of 2007 dealing with international maintenance cases, and enacted the EU Maintenance Regulation in 2009 for maintenance cases inside the EU. Together, these instruments make up a new system for cross-border maintenance cases within and outside of the EU. Consequently, the new Brussels I bis Regulation, by virtue of its Article 1 (2) (e), does not cover maintenance cases anymore.

Civil Procedure and Harmonisation of Law
  • The Dynamics of EU and International Treaties
  • Edited by Anna Nylund, Magne Strandberg
  • Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019
  • A range of international and European Union legal instruments exert influence on the national civil procedure rules of European Union member states. Some specifically aim for the harmonisation of national procedural law across Europe, while others primarily focus on facilitating cross-border litigation, enforcing rights or setting minimum standards. However, often the same time instruments cause fragmentation, reduce coherence and challenge prevailing concepts and doctrines of national civil procedure law. With a view to carefully selected North Western jurisdiction (EU and EEA member states) this book explores how EU, EEA, and international legislation, judicial activism on EU and national level, and new soft law instruments affect national civil procedure law and how, in turn, national rules may impact the development of international instruments. How are the respective countries affected by a particular (EU) regulation? Has the regulation generated changes of the national law? Are European rules, or national rules following from them, applied in court practice? Are there differences in the approach towards implementation and application of EU law, and if so why and with what consequences? Do international influences serve as an impetus for national reforms, or are they implemented mechanically? Do hard law approaches produce more harmonisation or convergence than soft law approaches? Anna Nylund is Professor of Law at the University of Tromsø - The Arctic University of Norway, where she leads the Research Group for Procedural Law and Dispute Resolution. She is a member of the board of the Nordic Association of Procedural Law. Magne Strandberg is Professor of Law at the University of Bergen where he leads the Research Group for Civil Procedure Law. He also is a member of the ELI-UNIDROIT working groups on 'From Transnational Principles to European Rules of Civil Procedure'.

  • Preface

  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp v-vi

  • Summary

    This book presents the results of a research project that looks at the interplay between national and international civil procedure law. While the project covers many kinds of international law – both soft law and hard law from a number of international institutions – the influence of European Union civil procedure law on national civil procedure forms the heart of the project. The editors of this book, together with Professor Halvard Haukeland Fredriksen, had previously conducted research on the interplay between Norwegian civil procedure and EU law. The interest in EU law in Norway may appear somewhat surprising at first, since Norway is not a member of the Union. However, Norway is part of the single market through its participation in the European Economic Area Agreement. Accordingly, EU law exerts an influence on national civil procedure through the EEA Agreement, voluntary harmonisation, hard law and soft law.

    Our previous engagements in comparative projects sparked our curiosity, as we noticed divergent attitudes, practices, policies and outcomes in countries in our geographical neighbourhood. As a result, in 2016, we initiated a research project, drawing on our networks and discussions with Professor Volker Lipp, that focused on the interplay between national and international civil procedure law in north-western Europe. A research workshop was organised in Tromsø in late August and early September 2017, where experts from Germany, the Netherlands, the United Kingdom and the Nordic countries took part. Most of the papers contained in this book are based on the discussions that took place during that workshop.

    We would like to express our gratitude to the Faculty of Law at the University of Tromsø – The Arctic University of Norway for its financial contribution, which made both the workshop and the book possible. We also wish to thank Satu Svahn for her review of the English language of the contributions. Harald Hofgaard, a student in Tromsø, provided valuable assistance in preparing the papers for publication. Finally, we are grateful to all of the authors for their participation.

  • Harmonisation or Fragmentation of National Law? An East Nordic Perspective

    • By Laura Ervo, Professor and Excellent Teaching Practitioner at Ö rebro University School of Law
  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp 77-98

  • Summary

    TREATY-BASED STARTING POINT

    Judicial co-operation in civil matters simply means closer co-operation between Member States in order to minimise obstacles arising from the existence of varying legal systems. The current definition and objectives of judicial co-operation in civil matters are, however, a result of historical development. Judicial co-operation was not one of the objectives of the European Community when the founding treaty was adopted. It was first officially included within the EU's sphere of activity by the Treaty of Maastricht. Then, the Treaty of Amsterdam brought judicial co-operation in civil matters within the Community sphere, transferring it from the Treaty on European Union to the Treaty establishing the European Community.

    Initially, governed by international conventions, judicial co-operation in civil matters was included in the Maastricht Treaty as a ‘matter of common interest’, and subsequently in the Treaty of Amsterdam, which places judicial co-operation in civil matters on the Community level by associating it with the free movement of persons, which is a milestone in this development. In theory and in practice, this constitutes a great leap from the common interest to free movement. As a matter of fact, free movement requires far greater harmonisation and co-ordination than that dictated by a common interest. Therefore, the change between the Maastricht Treaty and the Treaty of Amsterdam was a very significant one in terms of harmonisation, and meant that even procedural law has come to be covered by common EU law. The free movement of persons is a core principle of EU law, and is also the one with which the general public is most familiar. To introduce co-operation in civil matters into the principle of free movement is not only radical, but revolutionary. Let's see how successful this introduction has been, especially in the East Nordic countries, namely Finland and Sweden.

    East Nordic countries are comparable because of their common history and similar codes for judicial procedure. Finland was a part of the Kingdom of Sweden from the thirteenth century until 1809, when the vast majority of the Finnish-speaking areas of Sweden were ceded to the Russian Empire (excluding the areas of modern-day northern Sweden), making this area autonomous.

  • Introduction

    • By Anna Nylund, Professor of Law and Head of the Research group for procedural law and dispute resolution at the University of Tromsø – Th e Arctic University of Norway., Magne Strandberg, Professor of Civil Procedural Law at the University of Bergen, Norway.
  • Edited by Anna Nylund, Magne Strandberg
  • Book:
    Civil Procedure and Harmonisation of Law
    Published by:
    Intersentia
    Published online:
    30 March 2019
    Print publication:
    08 February 2019, pp 1-10

  • Summary

    MULTIPLE LEVELS OF INTERNATIONAL RULES ON CIVIL PROCEDURE

    Although civil procedure law has been traditionally considered to be deeply embedded in national (legal) culture and thus resistant to harmonisation, legislative efforts over the last few decades have given rise to a growing international influence on national civil procedure. While civil procedure law in the nineteenth and twentieth centuries was not free from foreign influences, ideas were mainly transferred from one country to another and not from international law to national law. Although the Brussels Convention of 1968 and the European Convention on Human Rights of 1950 marked the early emergence of supranational law of civil procedure, the momentum for extensive regulation was gained only at the turn of the millennium. Today, supranational and international influence on national civil procedure emanates from multiple sources, both binding and non-binding.

    During the last couple of decades, a body of international instruments concerning civil procedure has emerged. Most of these emanate from the European Union (EU), but other institutions, such as the United Nations, the European Council, The Hague Conference on Private International Law and UNIDROIT, are also of importance. The current situation regarding international legal sources on civil procedure is rather complex and not easily comprehensible, but we can identify a number of categories or levels into which most of the international rules on civil procedure law should fit:

  • – basic human rights;

  • – general principles of EU law;

  • – EU secondary law;

  • – international conventions or treaties on legal co-operation; and

  • – soft law.

    • As the first category, at both an overarching and a deep level, we find basic human rights. From the perspective of civil procedure law, the most important human rights are the right to a fair and public hearing found in Article 6 of the European Convention on Human Rights (ECHR), Article 14 of the UN Covenant on Civil and Political Rights, and Article 47 of the European Charter of Fundamental Rights. However, civil procedure law is also infl uenced by other human rights, such as the right to respect for privacy and family life found in Article 8 ECHR and the right to an effective remedy found in Article 13 ECHR.

  • Chapter 21 - Enforcement of Intellectual Property Rights in the Netherlands

  • Edited by Flip Petillion
  • Book:
    Enforcement of Intellectual Property Rights in the EU Member States
    Published by:
    Intersentia
    Published online:
    12 April 2019
    Print publication:
    31 January 2019, pp 859-898

  • Summary

    NATIONAL LAW IMPLEMENTING THE ENFORCEMENT DIRECTIVE

    A. PRIMARY AND SECONDARY LAW

    Directive 2004/48/EC of 29 April 2004 on the enforcement of intellectual property rights (the “Enforcement Directive”) was implemented on 1 May 2007 when the Enforcement Directive Implementation Act of 8 March 20071 came into force. The following acts were amended:

  • – a new title 15 with Articles 1019 to 1019i was added to book 3 of the Dutch Code of Civil Procedure. These provisions concern the major body of the implementation;

  • – new Articles 26d and 26e are added to the Copyright Act (Auteurswet) and several provisions were amended;

  • – new Articles 1a, 15e and 15f were added to the Neighbouring Rights Act (Wet op de naburige rechten) and several provisions were amended;

  • – new Articles 1a, 5d and 5e were added to the Database Act (Databankenwet) and several provisions were amended;

  • – Articles 6a and 6b were added to the Trade Name Act (Handelsnaamwet);

  • – a new Articles 18a, was added to the Topographies of Semiconductor Products Act (Wet houdende regelen inzake de bescherming van oorspronkelijke topografieën van halfgeleiderprodukten) and several provisions were amended;

  • – two provisions of the Plant Variety Act (Zaaizaad- en Plantgoedwet 2005) and several provisions were amended; and

  • – Article 13a was added to the Agricultural Quality Act (Landbouwkwaliteitswet) and the fi rst Article was amended to provide the necessary defi nitions to offer protection to designations of origin and geographical indications.

    • B. TRANSPOSITION ISSUES

    According to Article 20 of the Enforcement Directive, national legalisation complying with the Enforcement Directive should have been enacted no later than 29 April 2006. The Dutch legislator did not meet this date and the implementation of the act only entered into force on 1 May 2007. According to Article IX of the Enforcement Directive Implementation Act, it does not apply in cases which were started on or before 1 May 2007. For all other matters, the Act had immediate effect.

    The transitional law notwithstanding, in most cases, the lower courts had already interpreted the Code of Civil Procedure in accordance with the Enforcement Directive, more notably with respect to Article 14 which requires that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party in the period between 29 April 2006 and 1 May 2017.

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