Directive of the European Parliament and of the Council of May 21, 2008 No. 2008/52

 

EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

 

Based on the Treaty establishing the European Community, in particular on Art. 61 (c) and the second section of Art. 67 (5) of the said Agreement,

Based on the proposal of the Commission,

 

Based on the views of the European Committee on Economic and Social Affairs1,

 

Acting in accordance with the procedure defined in Art. 251 Treaties 2,

 

Considering the following circumstances:

 

(1) The community seeks to maintain and develop the legal space of freedom, security and justice, in which the free movement of citizens is guaranteed. In this regard, the Community should, in particular, take measures in the field of judicial cooperation in civil matters necessary to ensure the proper functioning of the domestic market.

 

(2) The principle of accessibility of justice is one of the fundamental principles, in connection with which the Council of Europe, at its meeting in Tampere on October 15 and 16, 1999, called on the EU member states to create alternative, non-judicial procedures to ensure better access to justice in Europe.

 

(3) In May 2000, the Council approved the findings regarding alternative dispute resolution methods in accordance with civil and commercial law, stating that the adoption of basic principles in this area is an important step towards ensuring the proper development and functioning of non-judicial dispute resolution procedures for civil and commercial matters and thus simplifying and improving access to justice.

 

(4) The European Commission presented in 2002 " Green Paper » (Green Paper), summarizing the current situation with regard to alternative methods of dispute resolution in Europe and initiated a wide-ranging consultations with Member States and interested parties on possible measures to promote the use of mediation .

 

(5) The goal of ensuring better access to justice as part of the European Union’s policy aimed at creating a legal space for freedom, security and justice should include access to both judicial and non-judicial methods of dispute resolution. The directive is intended to contribute to the proper functioning of the domestic market, in particular with regard to the provision and use of mediation services.

 

(6) Mediation can provide cost-effective and quick out-of-court settlement of disputes in civil and commercial matters through procedures that meet the needs of the parties. With regard to the agreements reached through mediation, there is a high probability that they will be executed voluntarily, as well as a high probability that they will ensure the maintenance of friendly and stable relations between the parties. These advantages are most clearly confirmed in situations involving international elements.

 

(7) In this regard, in order to develop further use of mediation and provide parties resorting to mediation with the opportunity to rely on a predictable legal framework, it is necessary to have framework legislation that defines, in particular, the main aspects of civil procedures.

 

(8) The provisions of this Directive should deal exclusively with mediation in disputes of an international nature, but there are no obstacles to the use by Member States of such provisions in relation to mediation at the national level.

 

(9) This Directive should in no way impede the use of modern communication technologies in the mediation process.

 

(10) This Directive should concern procedures in which two or more parties to a dispute at the international level try independently, on the basis of voluntariness, the Directive should apply to civil and commercial matters. However, this Directive should not apply to rights and obligations for which the parties are not entitled to make independent decisions, taking into account current legislation. Such rights and obligations often occur under family law and labor law.

 

(11) This Directive does not apply to pre-contract negotiations or to judicial or arbitral proceedings, such as certain judicial reconciliation schemes, consumer complaint schemes, arbitration or expert opinions, as well as procedures carried out by institutions issuing formal recommendations, whether whether legally binding or not, to resolve disputes.

 

(12) This Directive should apply to situations in which the court directs the parties to mediation or in which national law requires mediation. In addition, in cases where a judge, in accordance with national law, can act as a mediator, this Directive should also apply to mediation carried out by a judge who is not involved in any legal proceedings in relation to the subject or subjects of the dispute. This Directive, however, should not apply to attempts made by a court or judge to resolve a dispute in the context of legal procedures relating to the dispute in question, or in cases in which a court or judge seeks help or advice from a competent person.

 

(13) The mediation considered in this Directive should be a voluntary procedure in the sense that the parties themselves are responsible for carrying out this procedure and can organize it in accordance with their own wishes, as well as interrupt it at any time. However, courts, in accordance with national laws, should be able to set a time limit for the mediation process. In addition, the courts should be able to draw the attention of the parties to the possibility of mediation in all cases where it seems appropriate.

 

(14) No provision of this Directive shall prevent national legislation from making mediation mandatory or subject to encouragement or sanctions, provided that such legislation does not create an obstacle for the parties to exercise their right to access the justice system. Similarly, no provision of this Directive should give rise to prejudice regarding existing self-regulatory mediation systems if they address issues that are not the subject of consideration in this Directive.

 

(15) In order to ensure legal certainty, this Directive is intended to determine the date applicable to the decision on whether a dispute that the parties are trying to resolve through mediation is international. In the absence of a written agreement, it is advisable for the parties to agree on the use of mediation at the time when they begin to take specific actions to organize the mediation process.

 

(16) In order to ensure the necessary mutual trust in respect of confidentiality, statutes of limitations and validity periods of rights, as well as recognition and implementation of agreements reached as a result of mediation, EU Member States should, by whatever means they consider acceptable, promote the training of mediators and the implementation of effective mechanisms for controlling the quality of mediation services.

 

(17) EU Member States need to identify mechanisms that include the use of market-based solutions and do not require any funding. Such mechanisms should serve to ensure the flexibility of the mediation process and the autonomy of the parties, as well as to conduct mediation in an effective, objective and competent manner. Mediators should be informed of the existence of the European Code of Conduct for Mediators, which should also be accessible to the general public via the Internet.

 

(18) In the field of consumer protection, the Commission in 2001 adopted recommendations3 establishing minimum quality criteria that non-judicial bodies involved in consensus resolution of consumers should make available to their customers. It is advisable that all mediators or organizations to which this recommendation is addressed adhere to its principles. In order to ensure the dissemination of information about such bodies of the Commission, it is necessary to create a database of extra-judicial schemes, which EU Member States consider as consistent with the principles of these recommendations.

 

(19) Mediation should not be considered a less valuable alternative to litigation in the sense that the implementation of the agreements reached depends on the goodwill of the parties. In this regard, all EU Member States must guarantee the parties a written agreement on the results of mediation, the ability to enforce the content of their agreement. An EU Member State should be able to refuse to enforce an agreement only if its content is contrary to its law, including its private international law, or if the law does not enforce the content of a specific agreement. This may be the case if the obligation specified in the agreement is by its nature not feasible.

 

(20) The content of the mediation agreement to be executed in one of the EU Member States shall be recognized and considered to be enforced in other EU Member States in accordance with applicable EU law or national law. This can be achieved, for example, on the basis of Council Regulation (EC) No. 44/2001 of December 22, 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters4 or Council Regulation (EC) No. 2201/2003 of November 27, 2003 on matters of jurisdiction and recognition and enforcement of judgments in family matters and matters relating to parental responsibility5.

 

(21) Regulation (EC) No. 2201/2003 stipulates that in order to be enforceable in another Member State, agreements between the parties must be enforceable in the Member State in which they were concluded. Accordingly, if the content of the agreement on the results of mediation in the field of family law is not enforceable in the Member State where the agreement was concluded and where the application for its execution was filed, this directive should not serve as an excuse for the parties to try to circumvent the legislation of that state - Member States through Enforcement of their agreement in another Member State.

 

(22) This Directive shall not affect the rules of the Member States regarding the implementation of agreements reached as a result of mediation.

 

(23) Confidentiality is an extremely important aspect of mediation, therefore this Directive should provide a certain minimum level of compatibility of civil procedural rules in order to ensure confidentiality of mediation in any subsequent civil and commercial judicial or arbitration procedures.

 

(24) In order to motivate the parties with regard to the use of mediation, it is necessary for EU Member States to ensure that their norms for applying statutes of limitations will not create obstacles for the parties to apply to court or arbitration in the event of unsuccessful attempts to resolve the dispute through mediation. Member States should ensure that such a result is achieved, although this directive is not intended to harmonize national standards for the application of statutes of limitations. This Directive is not intended to affect the provisions on the application of statutes of limitations in international treaties existing in EU Member States, for example, in the field of transport legislation.

 

(25) Member States should facilitate the provision of information to the general public on how to contact mediators and mediation service providers. They also need to encourage practicing lawyers to inform their clients of the possibility of using mediation.

 

(26) In accordance with paragraph 34 of the Interdepartmental Agreement on the Improvement of Activities in the Field of Jurisprudence6, EU Member States must develop their own tables, as well as in the interests of the Community, to illustrate, as far as possible, the relationship between this directive and its measures implementation, and make them available to the public.

 

(27) This Directive is aimed at ensuring fundamental rights and takes into account the principles recognized in particular by the Charter of Fundamental Rights of the European Union.

 

(28) Since the objectives of this Directive cannot be sufficiently ensured by the efforts of individual EU Member States, and, for reasons related to the range of consequences of this action, can be better realized at the Community level, the Community can take measures in accordance with the principles of subsidiarity formulated in Art. 5 of the Agreement. In accordance with the principles of proportionality defined in this article, this directive does not go beyond what is necessary to achieve these goals.

 

(29) In accordance with Art. 3 of the Protocol on the Position of the United Kingdom and Ireland, annexed to the Treaty establishing the European Union and the Treaty establishing the European Community, the United Kingdom and Ireland expressed their desire to participate in the adoption and application of this Directive.

 

(30) In accordance with Art. 1 and 2 of the Protocol on the Position of Denmark, annexed to the Treaty on the Establishment of the European Union and the Treaty on the Establishment of the European Community, Denmark does not participate in the adoption of this Directive and, therefore, it is not binding and enforceable for it.

 

 

ADOPTED THE FOLLOWING DIRECTIVE:

 

Article 1. Objectives and scope

 

1. The purpose of this directive is to facilitate access to dispute resolution by promoting the use of mediation and ensuring a balanced relationship between mediation and judicial procedures.

 

2. This directive should apply to disputes at the international level in civil and commercial matters, with the exception of rights and obligations, decisions on which the parties are not entitled to decide independently in accordance with the applicable law. This applies, in particular, to taxation, customs and administrative matters, as well as to issues of state responsibility for actions and omissions in the exercise of state power (acta iure imperii).

 

3. In this directive, the term " member states " means EU member states with the exception of Denmark.

 

Article 2. Disputes at the international level

 

1. For the purposes of this directive, a dispute is considered to be a dispute at the international level, at least one of whose parties has a place of registration or place of usual residence as an EU Member State other than any other party on the date when:

 

(a) the parties agree to use mediation in connection with a dispute;

 

(b) mediation is ordered by a court;

 

(c) the obligation to use mediation arises in accordance with national law; or

 

(d) an invitation has been sent to the parties in accordance with the provisions of Article 5.

 

2. Regardless of section 1 for the purposes of Art. 7 and 8, disputes are also considered as disputes at the international level, in which judicial or arbitration procedures following mediation between the parties are initiated in a Member State other than the state that the parties had as a place of registration or usual residence at the time time according to sections 1 (a), (b) or (c).

 

3. For the purposes of sections 1 and 2, the place of registration is determined in accordance with Art. 59 and 60 of Regulation (EC) No 44/2001.

 

Article 3. Definitions

 

For the purposes of this directive, the following definitions are used:

 

(a) “ Mediation ” means any process, regardless of its designation, in which two or more parties to the dispute seek the assistance of a third party to reach an agreement to resolve their dispute, and whether or not the process has been initiated by the parties, has been proposed either appointed by a court or prescribed by national law of a Member State ..

 

This definition includes mediation conducted by a judge who is not involved in any legal proceedings in connection with the relevant dispute. This definition does not include efforts made by a court or judge seeking to resolve a dispute in court proceedings affecting the dispute.

 

(b) “ Mediator ” means any third party involved in mediation in an effective, objective and competent manner, regardless of the name or profession of that third party in the relevant EU Member State and regardless of how this third party was involved or requested for mediation.

 

Article 4. Ensuring the quality of mediation

 

1. Member States should, in whatever manner they consider appropriate, promote and encourage the development and implementation of voluntary codes of conduct by mediators and mediation service providers, as well as other effective monitoring mechanisms in the provision of mediation services.

 

2. Member States should facilitate the initial training and professional development of mediators in order to ensure that mediation is carried out in an effective, objective and competent manner with respect to the parties.

 

Article 5. Appeal to mediation

 

1. The court considering the lawsuit may, if it seems appropriate and taking into account all the circumstances of the case, invite the parties to resort to mediation to resolve their dispute. The court may also invite parties to participate in an information session on the use of mediation, if such sessions are held and are easily accessible.

 

2. This directive does not prejudice national law, according to which the use of mediation is mandatory or subject to encouragement or sanctions, whether before or after the start of the trial, provided that such legislation does not impede the right of the parties to access the judicial system.

 

Article 6. Enforcement of agreements reached as a result of mediation

 

1. Member States shall guarantee to the parties or one of the parties, with the full consent of the other parties, the ability to demand the execution of the contents of the written agreement reached as a result of mediation.

 

The content of such an agreement shall be recognized as enforceable, unless, in the framework of the case under review, the content of such an agreement is contrary to the legislation of the Member State in which the corresponding requirement was made, or the legislation of that Member State does not provide for the execution of such an agreement.

 

2. The agreement may be recognized as enforceable by a court or other authorized body through a verdict, or by a decision or application of another authentic instrument in accordance with the laws of the EU Member State in which the relevant requirement has been advanced.

 

3. Member States shall inform the Commission of those vessels or other bodies authorized to accept claims in accordance with sections 1 and 2.

 

4. No provision of this Directive shall affect the rules regarding the recognition and enforcement in another Member State of an agreement recognized as enforceable in accordance with section 1.

 

Article 7. Confidentiality of mediation

 

1. Based on the fact that mediation is supposed to ensure confidentiality, EU Member States must ensure that, unless the parties determine otherwise, neither mediators nor persons involved in organizing and conducting mediation will be involved in giving evidence in civil and commercial litigation or arbitration proceedings in relation to information received by them during or in connection with the mediation process, unless:

 

(a) this is necessary to take into account the public policy considerations of the respective EU Member State, in particular when it is necessary to protect the vital interests of children or to prevent damage to the physical or psychological integrity of the person; or

 

(b) disclosure of the content of the agreement reached as a result of mediation is necessary for the execution of this agreement.

 

2. The content of section 1 should in no way be an obstacle for Member States to implement stricter measures to ensure confidentiality of mediation.

 

Article 8. The effect of mediation on the limitation period

 

1. Member States shall ensure that parties resorting to mediation in an attempt to resolve their dispute will not be prevented from initiating judicial or arbitration proceedings in relation to their conflict due to the expiration of the limitation period during the mediation process.

 

2. Section 1 does not affect the rules for the application of limitation periods in international agreements to which the Member States are parties.

 

Article 9. Public Information

 

Member States should, by whatever means they deem acceptable, make available to the general public, in particular via the Internet, information on how to contact mediators and organizations providing mediation services.

 

Article 10. Information on authorized courts and state bodies

 

The Commission shall, by all appropriate means, ensure the provision of information on authorized courts or government bodies received from EU Member States in accordance with Art. 6 (3).

 

Article 11. Evaluation of implementation

 

No later than May 21, 2016, the Commission shall submit to the European Parliament, the Council of Europe and the European Economic and Social Committee a report on the application of% D of this Directive. The report should reflect the development of mediation within the European Union and the impact of this Directive on the situation in EU Member States. If necessary, the Report should be accompanied by proposals for the implementation of the Directive.

 

Article 12. Implementation

 

1. Member States shall bring into force the laws, regulations and administrative rules necessary to ensure compliance with this Directive by 21 May 2011, with the exception of Article 10, for which the compliance deadline is defined as 21 November 2010 States should inform the Commission accordingly.

 

As adopted by the Member States, these measures must contain a reference to this Directive or must be accompanied by such links when they are officially published. The methods for making such links should be determined by the EU Member States themselves.

 

2. Member States shall submit to the Commission the text of the main provisions of national law adopted by them in the field covered by this Directive.

 

Article 13. Entry into force

 

The directive shall enter into force on the 20th day after publication in the Official Journal of the European Union.

 

Section 14. Addresses

 

The directive is addressed to EU member states.

 

Performed in Strasbourg, May 21, 2008.

 

 

For the European Union ______ Chairman __________ H.-G. Pettering

 

 

For the Council _________________ Chairman ___________ I. Lenarchich

 

 

 

Footnotes:

 

1. OJ C 286, 11.17.2005, p. one.

 

2. Opinion of the European Parliament of March 29, 2007 (OJ C 27 E, 31.1.2008, p. 129). Council Common Position of February 28, 2008 (not yet published in the Official Journal) and Position of the European Parliament of April 23, 2008 (not yet published in the Official Journal).

 

3. Commission Recommendation 2001/310 / EC of 4 April 2001 on the principles for out-of-court bodies involved in the consensual resolution of consumer disputes (OJ L 109, 19.4.2001, p. 56).

 

4. OJ L 12, 16.1.2001, p. 1. Regulation as last amended by Regulation (EC) No 1791/2006 (OJ L 363, 12.20.2006, p. 1).

 

5. OJ L 338, 12.23.2003, p. 1. Regulation as amended by Regulation (EC) No 2116/2004 (OJ L 367, 12/14/2004, p. 1).

 

6. OJ C 321, 12.31.2003, p. one