Draft report with recommendations to the Commission on common minimum standards of civil procedure in the EU

By Béatrice Deshayes
EEEI’s Member

On 10 February 2017, the Committee on Legal Affairs of the European Parliament issued a "draft report with recommendations to the Commission on common minimum standards of civil procedure in the EU" (2015/2084 INL). This report can be downloaded here.

The report calls on the Commission to adopt, by 30 June 2018, a proposal for a legislative act on common minimum standards for civil proceedings, a first draft is appended to the report.

The proposed Directive is not intended to replace national procedures but to establish a set of common rules on the conduct of civil proceedings in all matters inside the scope of European Union law, while respecting national specificities.
Nothing, however, would prevent Member States from applying these rules also to civil disputes in strictly national scope, which, according to Parliament, would lead to efficiency benefits.

Judicial expertise (expertise near a Court) is explicitly mentioned twice in this report:
On the one hand, in point 11 of the preamble, it is pointed out that:

  • “Judges in one Member State should be able to appoint experts to conduct investigations in another Member State without any prior authorisation being necessary for their conduct”.
  • To facilitate judicial expertise and taking into account limitations in appointing sufficiently qualified experts in one Member State’s jurisdiction, for instance due to the technical sophistication of the case or the existence of direct or indirect links between the expert and the parties, a European directory of all national lists of experts should be created and kept up to date as part of the European e-justice portal”.

On the other hand, one of the minimum rules provided in article 11 is the following:

Court experts
1.Without prejudice to the possibility for the parties to produce expert evidence, Member States shall ensure that the court may at any time appoint court experts in order to provide expertise for specific aspects of the case. The court shall provide such expert with all information necessary for the provision of the expert advice.

2.In cross-border disputes, save where coercive measures are needed or where an investigation is carried out in places connected to the exercise of powers of a Member State or in places to which access or other action is, under the law of the Member State in which the investigation is carried out, prohibited or restricted to certain persons, Member States shall ensure that a court may appoint a judicial expert to conduct investigations outside of the court’s jurisdiction without the submission of any prior request to that effect to the relevant authority of the other Member State being needed.

3.For the purposes of paragraphs 1 and 2, a European directory of experts shall be drawn up by the Commission by bringing together existing national lists of experts and shall be made available via the European e-justice portal.

4.The court experts shall guarantee independence and impartiality in accordance with provisions applicable to judges provided for in Article 22.

5.Expert advice given to the court by court experts shall be made available to the parties which shall have the possibility to comment on it”.

This disposition thus recognizes the principle of judicial expertise requested by the judge, without, however, preventing the possibility for the parties to produce expert reports which they themselves have mandated.
If this principle is adopted, each Member State will have to ensure that this possibility is provided by the Code of Civil Procedure.

On the other hand, in accordance with the jurisprudence of the CJEU, it will be expressly agreed that, except in exceptional cases, an expert appointed by a court may carry out the operations necessary for the performance of its mission in the territory any other Member States, without going through the pre-application procedure currently provided for in Regulation 1206/2001.
Member States should ensure that experts "near  the  courts" respect the principles of independence and impartiality in the same way as judges, and respect, as a minimum, - the adversarial hearing in the form of observations by the parties on the Opinion of the expert.

Finally, this project recognizes, so that these principles are applyed, the importance of setting up a "European repertory of experts", to be published on the European e-Justice portal, by bringing together the national lists of experts.
This is precisely the purpose of the project presented by the EEEI to the European Commission in January 2017 (FIND AN EXPERT), on which we hope to have an answer before the summer.