Who Determines What Civil Courts Decide? Private Rights, Public Policy and EU
Law

Simon Whittaker 

University of Oxford - Faculty of Law
July 27, 2012

D.Leczykiewicz and S. Weatherill (eds) The Involvement of EU Law in Private Relationships, Richard Hart Publishing, (2012) (Forthcoming)
Oxford Legal Studies Research Paper 
Abstract:      
Over the last decades EU legislation and decisions of the Court of Justice have empowered and sometimes required the courts of Member States to address certain EU legal issues of their own motion. Where they do so in the context of civil litigation, this cuts across existing national patterns of the relative roles of the parties and of courts in determining the subject-matter of the case. The purpose of this paper is to consider how this EU law relates to established national European approaches to the relative role of the parties and the courts in determining the questions which courts address and to national conceptions of the civil process: is civil justice seen as requiring the court to apply the law to the claims brought before them, it being the role of courts to do justice by upholding the parties’ substantive rights deriving from private law? or is the fundamental purpose of the civil process the resolution of an agreed dispute, this dispute being identified and delineated by the parties through their pleadings and submissions? The paper first looks at three national law examples (English law, French law and German law) and then considers in turn the explicit rules of the EU private international legislative acquis which impose on national courts a duty to raise issues of civil jurisdiction of their own motion, the general approach of the Court of Justice to the question whether national courts must raise issues of EU law of their own motion under Van Schinjdel and the important (and apparently distinct) line of case-law of the Court of Justice following Océano Grupo Editorial as regards the role of courts in EU consumer protection. The paper explores the difficulties facing the CJEU in determining the relative roles of national courts and parties in relation to EU law issues and explains how the CJEU has to balance the desirability of supporting the effectiveness of EU legislation against the radical effect of requiring judicial intervention not merely on national rules of civil procedure but also on national conceptions of the civil process. For this purpose, the CJEU is likely to continue to recognise very general principles of civil procedure common to the civil law of Member States, such as the principle of party initiative and its main exception in cases involving the public interest and, in doing so, brings these principles within the fold of EU law itself and develops its own European conception of the civil process.

Number of Pages in PDF File: 50

Keywords: European Union, European Court of Justice, civil process, consumer law, private international law

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2118433