A NEW CHANCE FOR JUDICIAL MEDIATION REFORM
The Court of Justice of the European Union: "Directive 2008/52 does not in principle preclude national legislation from making recourse to mediation compulsory or subjecting it to incentives and sanctions"
Two months after the Bulgarian Constitutional Court struck down the reform requiring parties in certain categories of civil cases to participate in a first mediation meeting, declaring the relevant provisions unconstitutional, the Court of Justice of the European Union, in its ruling of 3 September 2024 in case C-658/23, ruled:
„(1) Article 5(2) of Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters, read in conjunction with the principle of the primacy of EU law,
must be interpreted as meaning that:
it does not preclude the courts of a Member State from disenforcing a decision of the Constitutional Court of that Member State invalidating national legislation under which the admissibility of certain actions which may fall within the scope of that directive is subject to the applicant's compliance with the obligation to participate in an information meeting on the benefits of mediation, since such a decision does not fall within the scope of that provision and cannot therefore be contrary to it.“
The case has been initiated by a request for a preliminary ruling submitted by the Court of First Instance of the 3rd District of Bucharest in connection with the doubts of the referring court about the contradiction of the judgments of the Constitutional Court of Romania of May 2014 and September 2018 (which declared unconstitutional national provisions requiring the participation of the parties in certain cases in an information meeting about the advantages of mediation as a prerequisite for hearing the case, as well as the obligation for the judge to refer the parties in certain disputes to mediation) with the provisions of the European Union law, Article 5, Paragraph 2 of The Directive EU/2008/52, in particular.
According to this provision (Article 5(2) of Directive EU/2008/52/), “This Directive shall apply without prejudice to any national legislation making the use of mediation compulsory or subject to incentives or sanctions, whether before or after the start of the judicial proceedings, provided that such legislation does not prevent the parties from exercising their right of access to the judicial system. “
The CJEU held in its ruling that it follows from the very wording of that provision that, as regards disputes falling within its scope, Directive 2008/52 does not in principle preclude national legislation from making recourse to mediation compulsory or subjecting it to incentives and penalties, and that national legislation under which, in certain types of cases, the parties are obliged to participate in an information meeting on the benefits of mediation is in principle compatible with Article 5(2) of the Directive, provided that such legislation does not preclude the parties from exercising their rights to access to justice.
The ruling is significant and extremely topical for Bulgaria, where the Constitutional Court, in its decision of July 1, 2024, defeated the envisaged judicial reform introducing a requirement for parties in certain categories of civil cases to participate in a first mediation meeting, arguing that such a requirement does not prevent the exercise of the right of access to justice but makes it more difficult. It should be noted that, unlike the Romanian legislation, in Bulgaria the mandatory participation in the first mediation meeting was provided for as part of the court proceedings, and the refusal to participate in such a meeting did not lead to the inadmissibility of the claim but only to the possibility for the refusing party to bear the costs of organizing the mediation meeting if it lost the case. In fact, it was the provisions on the costs in relation to the refusal to participate in mediation that proved to be the bone of contention, but instead of declaring only these provisions unconstitutional, the Constitutional Court struck down the reform entirely and declared unconstitutional the entire package of norms that introduced it.
In the light of the CJEU ruling quoted above, this ruling may not be applied. Will a courageous judge be found to ignore it or should the legislature intervene again?
Author -Lyubka Vasileva
