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10 results

  • Ex Officio Application of EU Consumer Protection Law in Norwegian Courts

  • 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 171-192

  • Summary

    INTRODUCTION: THE STATUS OF EU CONSUMER PROTECTION LAW IN NORWAY

    On numerous occasions the Court of Justice of the European Union (ECJ) has concluded that national courts of European Union Member States have an obligation to protect EU consumer rights of their own motion (so-called ex officio). The starting point was Directive 93/13/EEC on unfair terms in consumer contracts, but over the years this obligation has been extended to other parts of EU consumer protection law, such as Directive 1999/44/EC on consumer sale contracts, and Directives 87/102/EEC and now 2008/48/EC on consumer credit contracts. The ECJ has justified these inroads into national procedural law primarily by the need to compensate for the imbalance that generally exists between the consumer and the seller or supplier.

    Through the Agreement on the European Economic Area (EEA Agreement), EU consumer protection law is also applicable in Norway. On the basis of Article 72 of the Main Part of the EEA Agreement, the EEA Joint Committee has incorporated the entire body of EU consumer contract law into the Agreement's Annex XIX. Among the EU legal acts found in this Annex are the abovementioned Directives on unfair terms in consumer contracts, consumer sale contracts and consumer credit contracts.

    The object and purpose of the EEA Agreement is to extend the EU internal market to the participating EFTA States (Iceland, Liechtenstein and Norway). The only way to achieve this is through uniform interpretation and application of the common rules of EU and EEA law. Based on this ‘principle of homogeneity‘, it may be safely assumed that the ECJ's deduction of procedural obligations from the consumer contract directives is also applicable in an EEA law context.

    The EFTA Court confirmed this is in Engilbertsson. Paraphrasing ECJ case law, the EFTA Court noted that:

    Given the nature and significance of the public interest which constitutes the basis of the protection guaranteed to consumers, who are in a weak position vis- a -vis sellers or suppliers, Directive 93/13/EEC requires EEA States to provide for adequate and effective means to prevent the continued use of unfair terms in contracts concluded with consumers by sellers or suppliers.

  • 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.

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.

  • 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.