Brussels, 22/07/2011 (Agence Europe) - On Friday 22 July, the European Commission announced it had sent letters of formal notice to nine countries (Czech Republic, Cyprus, France, Finland, Luxembourg, Netherlands, Slovakia, Spain and the United Kingdom). The countries in question have not notified all national measures required for complete transposition of Directive 2008/52/EC on certain aspects of mediation in civil and commercial matters.
The European directive on certain aspects of mediation, adopted on 23 April 2008 and in force since 21 May 2011, applies when two parties involved in crossborder litigation voluntarily agree to settle their dispute using unbiased mediation. All member states should by now have adopted measures for the transposition of the EU directive, but nine states have failed to notify all national measures required for full transposition of the legislative text.
The Commission points out that judicial settlement of disputes and differences is often costly and time-consuming. Settlement of cross-border affairs is particularly complex due to the different national laws involved and differences in practical aspects such as costs or language.
Viviane Reding, Vice-President and Justice Commissioner, said: “Access to justice is a cornerstone of the European area of justice.” She went on to assert in a press release: “Mediation is an important alternative to going to court in cross-border disputes and can help parties find an amicable settlement. It saves time, money and spares parties involved in already emotional family cases the additional trauma of going to court. I call on the remaining nine member states to urgently finalise transposition so that citizens and businesses can fully enjoy their rights.”
The Commission specifies that member states must ensure that agreements resulting from mediation may be implemented. According to a study financed by the EU, time lost when not resorting to mediation is estimated on average at between 331 and 446 days, to which must be added additional judicial costs of between €12,471 and €13,738 per case.
Mediation can resolve problems between businesses, between employers and employees, owners and tenants, or between families, so that they maintain or even strengthen their relations in a constructive manner. Such a result cannot always be reached by judicial proceedings. The extraordinary settlement of disputes saves the resources of the legal system and is likely to reduce court costs. Confidence in the procedure is an essential element of any mediation especially when the parties involved are from different countries. EU rules therefore stipulate that member states must ensure quality controls, ensure codes of conduct and provide mediators with information so that the mediation system in place is effective.
From now on, these European regulations will be in place in 17 member states while Denmark has chosen not to be part of their adoption process, a prerogative that it has given itself under a protocol annexed to the Treaties of the Union.
The Commission is able to take legal action against member states that do not correctly transpose EU law or that fail to notify that they have passed national measures to implement EU rules. Infringement proceedings begin with a request for information (letter of formal notice) to the member state concerned, which must be answered within a specified period, usually two months. If the Commission is not convinced by information received and concludes that the member state in question fails to comply with obligations incumbent upon it under EU law, then it can formally invite it (by issuing a reasoned opinion) to comply with EU law, calling on it to notify within a usual two-month period all measures taken to ensure compliance.
If a member state does not comply with EU law, the Commission may then decide to refer it to the European Union Court of Justice. In over 90% of infringement cases, however, member states come into line with obligations incumbent upon them under EU law before referral to court. If the Court rules against a member state, then the latter must take measures to comply with the ruling. (L.C./transl.jl)