DIRECTIVE 2008/52/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

DIRECTIVES
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
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,
Having regard to the Treaty establishing the European
Community, and in particular Article 61(c) and the second
indent of Article 67(5) thereof,
Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Economic and
Social Committee (1),
Acting in accordance with the procedure laid down in
Article 251 of the Treaty (2),
Whereas:
(1) The Community has set itself the objective of maintaining
and developing an area of freedom, security
and justice, in which the free movement of persons is
ensured. To that end, the Community has to adopt, inter
alia, measures in the field of judicial cooperation in civil
matters that are necessary for the proper functioning of
the internal market.
(2) The principle of access to justice is fundamental and,
with a view to facilitating better access to justice, the
European Council at its meeting in Tampere on 15 and
16 October 1999 called for alternative, extra-judicial
procedures to be created by the Member States.
(3) In May 2000 the Council adopted Conclusions on alternative
methods of settling disputes under civil and
commercial law, stating that the establishment of basic
principles in this area is an essential step towards
enabling the appropriate development and operation of
extrajudicial procedures for the settlement of disputes in
civil and commercial matters so as to simplify and
improve access to justice.
(4) In April 2002 the Commission presented a Green Paper
on alternative dispute resolution in civil and commercial
law, taking stock of the existing situation as concerns
alternative dispute resolution methods in the European
Union and initiating widespread consultations with
Member States and interested parties on possible
measures to promote the use of mediation.
(5) The objective of securing better access to justice, as part
of the policy of the European Union to establish an area
of freedom, security and justice, should encompass access
to judicial as well as extrajudicial dispute resolution
methods. This Directive should contribute to the proper
functioning of the internal market, in particular as
concerns the availability of mediation services.
(6) Mediation can provide a cost-effective and quick extrajudicial
resolution of disputes in civil and commercial
matters through processes tailored to the needs of the
parties. Agreements resulting from mediation are more
likely to be complied with voluntarily and are more likely
to preserve an amicable and sustainable relationship
between the parties. These benefits become even more
pronounced in situations displaying cross-border
elements.
(7) In order to promote further the use of mediation and
ensure that parties having recourse to mediation can rely
on a predictable legal framework, it is necessary to
introduce framework legislation addressing, in particular,
key aspects of civil procedure.
(8) The provisions of this Directive should apply only to
mediation in cross-border disputes, but nothing should
prevent Member States from applying such provisions
also to internal mediation processes.
(9) This Directive should not in any way prevent the use of
modern communication technologies in the mediation
process.
24.5.2008 EN Official Journal of the European Union L 136/3
(1) OJ C 286, 17.11.2005, p. 1.
(2) Opinion of the European Parliament of 29 March 2007 (OJ C 27 E,
31.1.2008, p. 129). Council Common Position of 28 February 2008
(not yet published in the Official Journal) and Position of the
European Parliament of 23 April 2008 (not yet published in the
Official Journal).
(10) This Directive should apply to processes whereby two or
more parties to a cross-border dispute attempt by themselves,
on a voluntary basis, to reach an amicable
agreement on the settlement of their dispute with the
assistance of a mediator. It should apply in civil and
commercial matters. However, it should not apply to
rights and obligations on which the parties are not free
to decide themselves under the relevant applicable law.
Such rights and obligations are particularly frequent in
family law and employment law.
(11) This Directive should not apply to pre-contractual negotiations
or to processes of an adjudicatory nature such as
certain judicial conciliation schemes, consumer complaint
schemes, arbitration and expert determination or to
processes administered by persons or bodies issuing a
formal recommendation, whether or not it be legally
binding as to the resolution of the dispute.
(12) This Directive should apply to cases where a court refers
parties to mediation or in which national law prescribes
mediation. Furthermore, in so far as a judge may act as a
mediator under national law, this Directive should also
apply to mediation conducted by a judge who is not
responsible for any judicial proceedings relating to the
matter or matters in dispute. This Directive should not,
however, extend to attempts made by the court or judge
seised to settle a dispute in the context of judicial
proceedings concerning the dispute in question or to
cases in which the court or judge seised requests
assistance or advice from a competent person.
(13) The mediation provided for in this Directive should be a
voluntary process in the sense that the parties are themselves
in charge of the process and may organise it as
they wish and terminate it at any time. However, it
should be possible under national law for the courts to
set time-limits for a mediation process. Moreover, the
courts should be able to draw the parties’ attention to
the possibility of mediation whenever this is appropriate.
(14) Nothing in this Directive should prejudice national legislation
making the use of mediation compulsory or
subject to incentives or sanctions provided that such
legislation does not prevent parties from exercising
their right of access to the judicial system. Nor should
anything in this Directive prejudice existing self-regulating
mediation systems in so far as these deal with
aspects which are not covered by this Directive.
(15) In order to provide legal certainty, this Directive should
indicate which date should be relevant for determining
whether or not a dispute which the parties attempt to
settle through mediation is a cross-border dispute. In the
absence of a written agreement, the parties should be
deemed to agree to use mediation at the point in time
when they take specific action to start the mediation
process.
(16) To ensure the necessary mutual trust with respect to
confidentiality, effect on limitation and prescription
periods, and recognition and enforcement of agreements
resulting from mediation, Member States should
encourage, by any means they consider appropriate, the
training of mediators and the introduction of effective
quality control mechanisms concerning the provision of
mediation services.
(17) Member States should define such mechanisms, which
may include having recourse to market-based solutions,
and should not be required to provide any funding in
that respect. The mechanisms should aim at preserving
the flexibility of the mediation process and the autonomy
of the parties, and at ensuring that mediation is
conducted in an effective, impartial and competent
way. Mediators should be made aware of the existence
of the European Code of Conduct for Mediators which
should also be made available to the general public on
the Internet.
(18) In the field of consumer protection, the Commission has
adopted a Recommendation (1) establishing minimum
quality criteria which out-of-court bodies involved in
the consensual resolution of consumer disputes should
offer to their users. Any mediators or organisations
coming within the scope of that Recommendation
should be encouraged to respect its principles. In order
to facilitate the dissemination of information concerning
such bodies, the Commission should set up a database of
out-of-court schemes which Member States consider as
respecting the principles of that Recommendation.
(19) Mediation should not be regarded as a poorer alternative
to judicial proceedings in the sense that compliance with
agreements resulting from mediation would depend on
the good will of the parties. Member States should
therefore ensure that the parties to a written agreement
resulting from mediation can have the content of their
agreement made enforceable. It should only be possible
for a Member State to refuse to make an agreement
enforceable if the content is contrary to its law,
including its private international law, or if its law does
not provide for the enforceability of the content of the
specific agreement. This could be the case if the obligation
specified in the agreement was by its nature
unenforceable.
L 136/4 EN Official Journal of the European Union 24.5.2008
(1) Commission Recommendation 2001/310/EC of 4 April 2001 on
the principles for out-of-court bodies involved in the consensual
resolution of consumer disputes (OJ L 109, 19.4.2001, p. 56).
(20) The content of an agreement resulting from mediation
which has been made enforceable in a Member State
should be recognised and declared enforceable in the
other Member States in accordance with applicable
Community or national law. This could, for example,
be on the basis of Council Regulation (EC) No
44/2001 of 22 December 2000 on jurisdiction and the
recognition and enforcement of judgments in civil and
commercial matters (1) or Council Regulation (EC) No
2201/2003 of 27 November 2003 concerning jurisdiction
and the recognition and enforcement of
judgments in matrimonial matters and the matters of
parental responsibility (2).
(21) Regulation (EC) No 2201/2003 specifically provides that,
in order to be enforceable in another Member State,
agreements between the parties have to be enforceable
in the Member State in which they were concluded.
Consequently, if the content of an agreement resulting
from mediation in a family law matter is not enforceable
in the Member State where the agreement was concluded
and where the request for enforceability is made, this
Directive should not encourage the parties to circumvent
the law of that Member State by having their agreement
made enforceable in another Member State.
(22) This Directive should not affect the rules in the Member
States concerning enforcement of agreements resulting
from mediation.
(23) Confidentiality in the mediation process is important and
this Directive should therefore provide for a minimum
degree of compatibility of civil procedural rules with
regard to how to protect the confidentiality of
mediation in any subsequent civil and commercial
judicial proceedings or arbitration.
(24) In order to encourage the parties to use mediation,
Member States should ensure that their rules on
limitation and prescription periods do not prevent the
parties from going to court or to arbitration if their
mediation attempt fails. Member States should make
sure that this result is achieved even though this
Directive does not harmonise national rules on limitation
and prescription periods. Provisions on limitation and
prescription periods in international agreements as implemented
in the Member States, for instance in the area
of transport law, should not be affected by this Directive.
(25) Member States should encourage the provision of information
to the general public on how to contact
mediators and organisations providing mediation
services. They should also encourage legal practitioners
to inform their clients of the possibility of mediation.
(26) In accordance with point 34 of the Interinstitutional
agreement on better law-making (3), Member States are
encouraged to draw up, for themselves and in the
interests of the Community, their own tables illustrating,
as far as possible, the correlation between this Directive
and the transposition measures, and to make them
public.
(27) This Directive seeks to promote the fundamental rights,
and takes into account the principles, recognised in
particular by the Charter of Fundamental Rights of the
European Union.
(28) Since the objective of this Directive cannot be sufficiently
achieved by the Member States and can therefore, by
reason of the scale or effects of the action, be better
achieved at Community level, the Community may
adopt measures in accordance with the principle of subsidiarity
as set out in Article 5 of the Treaty. In accordance
with the principle of proportionality, as set out in that
Article, this Directive does not go beyond what is
necessary in order to achieve that objective.
(29) In accordance with Article 3 of the Protocol on the
position of the United Kingdom and Ireland, annexed
to the Treaty on European Union and to the Treaty
establishing the European Community, the United
Kingdom and Ireland have given notice of their wish
to take part in the adoption and application of this
Directive.
(30) In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark, annexed to the Treaty on
European Union and to the Treaty establishing the
European Community, Denmark does not take part in
the adoption of this Directive and is not bound by it or
subject to its application,
24.5.2008 EN Official Journal of the European Union L 136/5
(1) OJ L 12, 16.1.2001, p. 1. Regulation as last amended by Regulation
(EC) No 1791/2006 (OJ L 363, 20.12.2006, p. 1).
(2) OJ L 338, 23.12.2003, p. 1. Regulation as amended by Regulation
(EC) No 2116/2004 (OJ L 367, 14.12.2004, p. 1). (3) OJ C 321, 31.12.2003, p. 1.
HAVE ADOPTED THIS DIRECTIVE:
Article 1
Objective and scope
1. The objective of this Directive is to facilitate access to
alternative dispute resolution and to promote the amicable
settlement of disputes by encouraging the use of mediation
and by ensuring a balanced relationship between mediation
and judicial proceedings.
2. This Directive shall apply, in cross-border disputes, to civil
and commercial matters except as regards rights and obligations
which are not at the parties’ disposal under the relevant
applicable law. It shall not extend, in particular, to revenue,
customs or administrative matters or to the liability of the
State for acts and omissions in the exercise of State authority
(acta iure imperii).
3. In this Directive, the term ‘Member State’ shall mean
Member States with the exception of Denmark.
Article 2
Cross-border disputes
1. For the purposes of this Directive a cross-border dispute
shall be one in which at least one of the parties is domiciled or
habitually resident in a Member State other than that of any
other party on the date on which:
(a) the parties agree to use mediation after the dispute has
arisen;
(b) mediation is ordered by a court;
(c) an obligation to use mediation arises under national law; or
(d) for the purposes of Article 5 an invitation is made to the
parties.
2. Notwithstanding paragraph 1, for the purposes of Articles
7 and 8 a cross-border dispute shall also be one in which
judicial proceedings or arbitration following mediation
between the parties are initiated in a Member State other than
that in which the parties were domiciled or habitually resident
on the date referred to in paragraph 1(a), (b) or (c).
3. For the purposes of paragraphs 1 and 2, domicile shall be
determined in accordance with Articles 59 and 60 of Regulation
(EC) No 44/2001.
Article 3
Definitions
For the purposes of this Directive the following definitions shall
apply:
(a) ‘Mediation’ means a structured process, however named or
referred to, whereby two or more parties to a dispute
attempt by themselves, on a voluntary basis, to reach an
agreement on the settlement of their dispute with the
assistance of a mediator. This process may be initiated by
the parties or suggested or ordered by a court or prescribed
by the law of a Member State.
It includes mediation conducted by a judge who is not
responsible for any judicial proceedings concerning the
dispute in question. It excludes attempts made by the
court or the judge seised to settle a dispute in the course
of judicial proceedings concerning the dispute in question.
(b) ‘Mediator’ means any third person who is asked to conduct
a mediation in an effective, impartial and competent way,
regardless of the denomination or profession of that third
person in the Member State concerned and of the way in
which the third person has been appointed or requested to
conduct the mediation.
Article 4
Ensuring the quality of mediation
1. Member States shall encourage, by any means which they
consider appropriate, the development of, and adherence to,
voluntary codes of conduct by mediators and organisations
providing mediation services, as well as other effective quality
control mechanisms concerning the provision of mediation
services.
2. Member States shall encourage the initial and further
training of mediators in order to ensure that the mediation is
conducted in an effective, impartial and competent way in
relation to the parties.
Article 5
Recourse to mediation
1. A court before which an action is brought may, when
appropriate and having regard to all the circumstances of the
case, invite the parties to use mediation in order to settle the
dispute. The court may also invite the parties to attend an
information session on the use of mediation if such sessions
are held and are easily available.
L 136/6 EN Official Journal of the European Union 24.5.2008
2. This Directive is without prejudice to national legislation
making the use of mediation compulsory or subject to
incentives or sanctions, whether before or after judicial
proceedings have started, provided that such legislation does
not prevent the parties from exercising their right of access to
the judicial system.
Article 6
Enforceability of agreements resulting from mediation
1. Member States shall ensure that it is possible for the
parties, or for one of them with the explicit consent of the
others, to request that the content of a written agreement
resulting from mediation be made enforceable. The content of
such an agreement shall be made enforceable unless, in the case
in question, either the content of that agreement is contrary to
the law of the Member State where the request is made or the
law of that Member State does not provide for its enforceability.
2. The content of the agreement may be made enforceable
by a court or other competent authority in a judgment or
decision or in an authentic instrument in accordance with the
law of the Member State where the request is made.
3. Member States shall inform the Commission of the courts
or other authorities competent to receive requests in accordance
with paragraphs 1 and 2.
4. Nothing in this Article shall affect the rules applicable to
the recognition and enforcement in another Member State of an
agreement made enforceable in accordance with paragraph 1.
Article 7
Confidentiality of mediation
1. Given that mediation is intended to take place in a
manner which respects confidentiality, Member States shall
ensure that, unless the parties agree otherwise, neither
mediators nor those involved in the administration of the
mediation process shall be compelled to give evidence in civil
and commercial judicial proceedings or arbitration regarding
information arising out of or in connection with a mediation
process, except:
(a) where this is necessary for overriding considerations of
public policy of the Member State concerned, in particular
when required to ensure the protection of the best interests
of children or to prevent harm to the physical or psychological
integrity of a person; or
(b) where disclosure of the content of the agreement resulting
from mediation is necessary in order to implement or
enforce that agreement.
2. Nothing in paragraph 1 shall preclude Member States
from enacting stricter measures to protect the confidentiality
of mediation.
Article 8
Effect of mediation on limitation and prescription periods
1. Member States shall ensure that parties who choose
mediation in an attempt to settle a dispute are not subsequently
prevented from initiating judicial proceedings or arbitration in
relation to that dispute by the expiry of limitation or
prescription periods during the mediation process.
2. Paragraph 1 shall be without prejudice to provisions on
limitation or prescription periods in international agreements to
which Member States are party.
Article 9
Information for the general public
Member States shall encourage, by any means which they
consider appropriate, the availability to the general public, in
particular on the Internet, of information on how to contact
mediators and organisations providing mediation services.
Article 10
Information on competent courts and authorities
The Commission shall make publicly available, by any appropriate
means, information on the competent courts or authorities
communicated by the Member States pursuant to
Article 6(3).
Article 11
Review
Not later than 21 May 2016, the Commission shall submit to
the European Parliament, the Council and the European
Economic and Social Committee a report on the application
of this Directive. The report shall consider the development of
mediation throughout the European Union and the impact of
this Directive in the Member States. If necessary, the report shall
be accompanied by proposals to adapt this Directive.
24.5.2008 EN Official Journal of the European Union L 136/7
Article 12
Transposition
1. Member States shall bring into force the laws, regulations,
and administrative provisions necessary to comply with this
Directive before 21 May 2011, with the exception of
Article 10, for which the date of compliance shall be
21 November 2010 at the latest. They shall forthwith inform
the Commission thereof.
When they are adopted by Member States, these measures shall
contain a reference to this Directive or shall be accompanied by
such reference on the occasion of their official publication. The
methods of making such reference shall be laid down by
Member States.
2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.
Article 13
Entry into force
This Directive shall enter into force on the 20th day following
its publication in the Official Journal of the European Union.
Article 14
Addressees
This Directive is addressed to the Member States.
Done at Strasbourg, 21 May 2008.
For the European Parliament
The President
H.-G. PÖTTERING
For the Council
The President
J. LENARČIČ
L 136/8 EN Official Journal of the European Union 24.5.2008

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