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Procedural Autonomy and Belgian Civil Procedure Law: A Turbulent Cohabitation
- Edited by Bart Krans, Anna Nylund
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- Book:
- Procedural Autonomy Across Europe
- Published by:
- Intersentia
- Published online:
- 30 April 2020
- Print publication:
- 30 January 2020, pp 13-36
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Summary
INTRODUCTION
A thorough knowledge of and familiarity with each other are prerequisites for any well-balanced relationship. Cohabitation in a multi-layered legal system, with complex interrelations between its different layers, is not always a walk in the park. Member States have to learn to live with their shrinking procedural autonomy and the way this affects their national legal system, due to the varying impact of EU (case) law, fundamental legal principles and even soft law instruments.
Against this background of procedural autonomy, two topics are analysed which are particularly relevant from a Belgian viewpoint. The first reveals, in the wake of a recent CJEU judgment, the urgent need to rethink profoundly and deliberate the Belgian rules on litigation costs. The second topic confronts us with the phenomenon of spontaneous harmonisation. Transposing a rule written for cross-border litigation in the domestic context has to be applauded. But the transposition could have been done in a much more effective way.
THE RECOVERABILITY OF COSTS OF LAWYERS’ FEES AND COSTS OF TECHNICAL ADVISERS AFTER UNITED VIDEO PROPERTIES INC. v. TELENET NV (C-57/15)
RECOVERABILITY OF LAWYERS’ FEES AND EXPENSES IN BELGIUM: ANTECEDENTS OF THE CASE
EU regulations and directives have repercussions on a vast list of procedural topics. Litigation costs is one of them. Recent Belgian case law offers an example of serious friction with national rules, caused by Article 14 of the IP Rights Enforcement Directive. This provision states:
Member States shall ensure that reasonable and proportionate legal costs and other expenses incurred by the successful party shall, as a general rule, be borne by the unsuccessful party, unless equity does not allow this.
In its Realchemie judgment the CJEU reminded that this provision aims to strengthen the level of protection of intellectual property, by avoiding the situation in which an injured party is deterred from bringing legal proceedings in order to protect his rights.
Although some have argued that also Article 14 of the Directive required implementation because of the nature of IP cases, especially the complexity of the legal and technical issues at stake which makes, e.g. patent litigation quite expensive, the Belgian legislator did not transpose this provision.
Some European Challenges for Belgian Civil Procedure
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- By Piet Taelman, senior full professor at Ghent University Law School (Belgium)
- Edited by Anna Nylund, H. B. Krans
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- Book:
- The European Union and National Civil Procedure
- Published by:
- Intersentia
- Published online:
- 19 December 2017
- Print publication:
- 29 July 2016, pp 5-16
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Summary
The Invisible Pillar Raises Serious Compatibility Issues between EU (Case) Law and Belgian Civil Procedure Law
The European influence on national civil procedural law is multi-dimensional. As has been described by Bart Krans, a large part of the Europeanisation of national procedural law derives from what he has called the ‘invisible pillar’. Krans showed us not only the existence of such a type of European influence, but also demonstrated how vast this area is and that it covers a wide variety of topics. The invisible pillar differs from two other pillars of Europeanisation described by Krans because it is much less visible. It offers an intriguing interplay between European rules and decisions at one hand and national rules and court judgements at the other hand, due to the rather sneaky way in which it affects rules and procedural behaviour of judges and parties. Its impact is far-reaching and may not be underestimated as will be illustrated below.
The invisible pillar is two-headed. The first part of this pillar follows from the role of national civil procedure law in enforcing EU law. The European Court of Justice stressed at several occasions the principle of procedural autonomy of Member States. which implies that the national legal system of each Member State has to regulate the procedural rules governing the actions which are to ensure respect for the rights which individuals derive from EU law. As a consequence, EU law (oft en) needs national civil procedure law to find its way to European citizens. National courts have the duty to apply their procedural law in accordance with the so-called Rewe/Comet rule, i.e. in compliance with the principles of equivalence and effectiveness.
An example of this first area of the invisible pillar highlighted by Krans concerns the ex officio (of own motion of a judge or a court) application of EU Law in the field of consumer protection. Article 6 (1) of the Directive on unfair terms in consumer contracts provides: ‘Member States shall lay down that unfair terms used in a contract concluded with a consumer by a seller or supplier shall, as provided for under their national law, not be binding on the consumer and that the contract shall continue to bind the parties upon those terms if it is capable of continuing in existence without the unfair terms.’
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