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The principle of effectiveness and EU competences
The EU has traditionally had a narrowly circumscribed remit for legislative provisions regarding civil procedure. In turn, the Member States are relatively autonomous in determining their civil justice systems. The principle of national procedural autonomy was highlighted in the ECJ’s early jurisprudence. In Rewe-Zentralfinanz the ECJ held that it is the role of the Member States ‘to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of community law’. However, the ECJ also imposed two basic requirements on national procedural rules: they should be non-discriminatory and they should not make the exercise of a right impossible in practice.
Subsequently, the ECJ intervened in national civil procedures applying, among other things, effective protection as a guiding principle. In von Colson the ECJ ruled that Member States have to guarantee real and effective judicial protection of remedies, emphasizing the importance of the principle of effectiveness.  This approach was reiterated in the ECJ decisions that followed, including Johnston. As a consequence it was argued by some scholars that ‘the EU has a combination of national procedural competences and European procedural primacy’.
The principle of effectiveness was eventually integrated into the Lisbon Treaty in Article 19(1) TEU, which states that ‘Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law’.
The Lisbon Treaty broadens the competences of the EU in the field of civil procedure and may serve as a general basis for cross-border measures. While the pre-Lisbon Treaty Article 65 EC stated that measures with cross-border implications could be taken ‘in so far as necessary for the proper functioning of the internal market’, the new Article 81(2) TFEU on judicial cooperation in civil matters provides the possibility for the EU to adopt civil procedure measures without requiring a market-making objective. These measures can be on, inter alia:
For consumer dispute resolution, Article 81(2)(e) and (g) TFEU is particularly relevant. On this basis the EU may adopt measures that facilitate collective and alternative redress mechanisms in order to promote ‘effective access to justice’. This competence is nonetheless generally restricted to cross-border matters, so that Member States’ procedures may remain unaffected. However, the EU may adopt broader measures by relying on the specific consumer protection provision of the Lisbon Treaty. Article 169(1) TFEU (ex 153(1) EC) states that ‘to ensure a high level of consumer protection, the Union shall contribute ( . . . ) to promoting their right to information, education and to organize themselves in order to safeguard their interests’.
Collective redress procedures, in or out of court, would be one way to guarantee a high level of consumer protection and facilitate consumer associations to organize themselves. In particular, Article 169(2)(b) TFEU is of relevance for collective and alternative dispute resolution, because it allows the EU to adopt consumer measures ‘which support, supplement and monitor the policy pursued by the Member States’.
As a large number of Member States have already introduced collective and alternative redress mechanisms for consumers into their national systems, the EU can support or complement the national redress schemes upon the basis of Article 169(2)(b) TFEU. Such a measure may allow a more coherent dispute resolution system across the EU and provide an inspiration for Member States without collective redress mechanisms.
Alternatively, Article 169(2)(a) TFEU and Article 114 TFEU (ex Article 95 EC) could be an additional basis for EU access to justice legislation. The majority of consumer protection measures have traditionally been developed on the sole basis of these provisions. However, they require a market integration objective. Thus, in order to evaluate whether Article 114 TFEU can also be applied, we have to consider whether diverging dispute resolution mechanisms in the European Member States pose a barrier to trade, and whether a relevant EU measure would improve market integration. The fact that different redress mechanisms for consumers exist in the Member States may lead to disparities and obstacles to trade, so this provision may become a potential basis for EU action.
In conclusion, since the introduction of the Lisbon Treaty the EU has broader powers to adopt civil procedure measures. In particular, Article 169 TFEU in conjunction with Article 81 TFEU can be considered as a potential basis for an EU access to justice measure for consumers. The following sections explore how these EU competences may be applied to boost affordable and effective consumer dispute resolution.
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