Dragoș Călin[1]
Although the compatibility of European Union law with mandatory mediation has been largely clarified by the case law of the Court of Justice of the European Union (for example, the Judgment of 18 March 2010, delivered in the joined cases C-317/08, C-318/08, C-319/08 and C320/08, Alassini and others, as well as the Judgment of 14 June 2017, delivered in the case C-75/16, Menini and Rampanelli), however, a new request for a preliminary ruling in the field is worth mentioning, because it comes with the purpose of blocking the case law of one of the most Taliban constitutional courts in Europe, that is the Constitutional Court of Romania, and of unblocking a procedure that can determine the relief of the Romanian judicial system from millions of pending cases.
By Decision no. 266 of 7 May 2014, the Constitutional Court of Romania held that mediation was enshrined in Romanian law with the entry into force of Law no. 192/2006 on mediation and the organization of the mediator profession, being a way to settle conflicts amicably, with the help of a specialized third person having the capacity of mediator, under conditions of neutrality, impartiality, confidentiality and having the free consent of the parties, therefore, an optional, informal, amicable, confidential procedure carried out in the presence of a mediator.
As it results from the corroboration of Article 2 para. (1) with para. (1 ind. 2) of Law no. 192/2006, in order to initiate proceedings before the court with a statement of claim, for disputes in the matters provided for by Article 601 para. (1) letters a)-f) of the above-mentioned law, the legislator established a new obligation for the litigant, namely that of contacting a mediator beforehand, so that the latter could inform them about the advantages of mediation.
The Constitutional Court of Romania assessed that the introduction of the compulsory obligation to be informed about mediation contradicts Art. 21 of the Fundamental Law. Also, that the preamble 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, stipulates that “mediation 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.” Also, Article 3 letter a) of the directive defines mediation as a process “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 (…)”. Article 5 para. (1) entitled “Recourse to mediation” provides that “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.” As such, the provisions of this directive refer only to the possibility, and not to the obligation of the parties, to follow the mediation procedure, therefore nothing mandatory regarding mediation and, even less, the prior information procedure regarding the advantages of mediation.
The Constitutional Court of Romania found that, although both the national legislation, namely Law no. 192/2006 and the Code of Civil Procedure [Article 227 para. (2) final sentence], as well as Directive 2008/52/EC of the European Parliament and of the Council establish mediation as an optional, alternative and informal procedure, Article 2 paragraph (1) of Law no. 192/2006 stipulates that the parties are required to participate in the information session regarding the advantages of mediation, under the penalty of inadmissibility of the statement of claim, established by para. (1 ind. 2) of the same article. That being the case, although mediation is optional, the information session on the advantages of mediation is mandatory, but the obligation to participate in the information on the advantages of mediation represents a limitation of free access to justice, because it constitutes a filter for the exercise of this constitutional right, and through the sanction of the inadmissibility of the statement of claim, this right is not only limited, but even prohibited.
A few years later, by Decision no. 560 of 18 September 2018, the Constitutional Court admitted the objection of unconstitutionality and found that the provisions of Article I point 10 [with reference to Article 43 para. (2 ind.1) of Law no.192/2006], of Article I point 16 [with reference to the introductory part of para. (1) of Article 601 of Law no. 192/2006] and of Article I point 21 [with reference to Article 76 of Law no. 192/2006] of the Law for amending and supplementing Law no. 192/2006 are unconstitutional.
The Constitutional Court of Romania held that the contested provisions – Article I point. 10 [with reference to Article 43 para. (2 ind. 1) of Law no. 192/2006] of the law subject to constitutionality review – provide that, in the cases referred to in Article 60 ind.1, before filing the statement of claim, “the parties shall attempt to settle the dispute by mediation.” From the grammatical interpretation of the phrase “shall attempt” it can be deduced that the parties to a dispute are required to attempt to solve the dispute through mediation. Conversely, had the legislator not intended to impose the obligation of attempting to seek dispute resolution through mediation, it would have used the wording “may attempt”.
The Constitutional Court of Romania found that from the systematic interpretation of the provisions of the law subject to constitutionality review it can be deduced that the intention of the legislator was to introduce the obligation of attempting to seek dispute resolution through mediation, because it also amended the introductory part of the provisions of Article 60 ind.1 of Law no. 192/2006, establishing that “the parties are required to prove that they have tried the mediation procedure”. Even if the legislator did not establish any sanction for the failure to attempt seeking dispute resolution through mediation, the provisions of Article 43 paragraph (2 ind. 1) of Law no. 192/2006, as amended by Article I point 10 of the contested law represent binding imperative norms, which require the parties to attempt to settle the dispute through mediation. Hence, the contested legal text represents a norm that imposes a certain course of action on the parties, and it is not a permissive norm, which would leave the choice of a certain behaviour to the party’s discretion, namely, to attempt to settle the dispute by mediation or not.
The Constitutional Court of Romania held that the obligation imposed on the parties to attempt seeking dispute resolution through mediation, even when the parties want the dispute to be settled exclusively by the courts, seems to be an obstacle to the realization and attainment by the citizens of their rights in court and contravenes the ruling by the constitutional court by Decision no. 266 of 7 May 2014.
It was also observed that the contested legal text amends the provisions of Article 227 of the Code of Civil Procedure, which regulates the possibility/option of the judge to recommend to the parties to resort to mediation, and establishes the obligation for the judge to order the referral of the parties to mediation, in the cases that, according to the law, can be the subject of mediation (cases provided for in Article 60 ind. 1 of Law no. 192/2006) and “which have been pending before the first court for more than 18 months from its investiture, without being settled„, except for the cases in which the parties attempted to settle the dispute through mediation. However, the Constitutional Court of Romania found that this obligation of referring the parties to mediation, even limited to certain cases and under certain conditions, is contrary to what was established by the Decision of the Constitutional Court no. 266 of 7 May 2014, paragraph 21, which establishes mediation as an optional, alternative and informal procedure.
The contested legal provisions that establish the obligation for the judge to order the referral of the parties to mediation, in the cases provided by law, limit the free access of the parties to justice, being contrary to the provisions of Article 21 of the Constitution, because they establish the mandatory nature of mediation, in these cases.
In this context, the Bucharest District 3 Court – Civil Division, by the judgment of 2 November 2023, ordered the referral to the Court of Justice of the European Union, in a case regarding a small claim, in which the plaintiff, Investcapital LTD, a company registered in the Register of Companies of Malta Financial Services Authority, assigned the claim held by the original creditor Orange Romania S.A., a company that provides mobile telephony services, a claim it held against the debtor SAG. In the summary procedure of small claims, the plaintiff requested the court to order the debtor defendant to pay the amount of RON 4,652.95, representing the principal debt and late penalties invoiced and calculated in amount of 0.5%/day of delay according to the contract, to which the legal interest from the date of assignment until full payment of the debt is added.
For this type of dispute, the provisions of Article 2 (1 ind.2) of Law no. 192/2006 regarding mediation and the organization of the profession of mediator require the fulfilment by the plaintiff, under the penalty of inadmissibility of the statement of claim, of the obligation to participate in the information session regarding mediation, prior to filing the statement of claim or after the start of the trial until the deadline given by the court in this regard, for the disputes in the matters provided for by Article 60 ind.1 para. (1) letters a)-f).
In this case, the necessity of the issue to be settled by the European Union law was discussed, even if, at first glance, the case was not related to its application. However, when the applicability of the provisions of the European Union law, even with regard to situations that do not fall within their scope, has been established by the national law of a Member State directly and unconditionally in order to ensure identical treatment to these situations and the situations that fall within the scope of the European Union law, the Court considers it has jurisdiction to interpret these provisions under Article 267 TFEU. This approach is justified by the interest to ensure a consistent interpretation of EU law provisions [see, among other, the Judgment of 18 October 2012, Nolan (C-583/10, EU:C:2012:638, paragraphs 46 and 47, as well as the cited case law), and the Judgment of 16 June 2016, Rodríguez Sánchez (C351/14, EU:C:2016:447, paragraphs 61 and 62). This case law has developed since the Judgment of 18 October 1990, Dzodzi (C-297/88 and C-197/89, EU:C:1990:360, paragraphs 35-37), in which the Court ruled that it had jurisdiction to interpret a provision of the European Union law, in a preliminary reference, when the national law of the given Member State invokes the content of said provision in order to regulate a purely domestic situation].
In any case, the Constitutional Court of Romania itself found that the provisions of Article 2 par. (1) and (1 ind.2) of Law no. 192/2006 are unconstitutional, invoking the preamble 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, as well as Article 3 and 5 of the same Directive. Therefore, the interest in ensuring that the provisions of EU law receive a consistent interpretation is obvious.
The Court of Justice of the European Union, by the Judgment of 18 March 2010, delivered in the joined cases C-317/08, C-318/08, C-319/08 and C-320/08, Alassini and others, established that neither the principles of equivalence and effectiveness, nor the principle of effective judicial protection preclude national legislation which imposes, in respect of such disputes, prior implementation of an out-of-court settlement procedure provided that this procedure does not result in a decision which is binding on the parties, that it does not cause a substantial delay for the purposes of bringing legal proceedings, suspend the period for the time-barring of claims and does not give rise to costs or give rise to very low costs for the parties, to the extent that electronic means is not the only means by which the settlement procedure may be accessed and interim measures are possible in exceptional cases where the urgency of the situation so requires. Also, the Court of Justice of the European Union, by the Judgment of 14 June 2017, delivered in the case C-75/16, Menini and Rampanelli, decided that the recourse to mediation, as a condition for the admissibility of the legal proceedings, does not contravene the EU law, to the extent that such a requirement does not prevent the parties from exercising their right of access to the judicial system. In its turn, the European Court of Human Rights held, in the case Momčilović v. Croatia (no. 11239/11, the Judgment of 26 March 2015), that the procedure of preliminary referral to the court in an attempt to settle the dispute amicably is compatible with the Convention.
Article 3 letter (a) of Directive 2008/52 on certain aspects of mediation in civil and commercial matters defines mediation as a voluntary process, by also specifying that this process can be both initiated by the parties and ordered by a court or provided for by the law of a Member State. Article 5 paragraph (2) of this Directive preserves, along the same line, the possibility for Member States to provide, under their national legislation, for the compulsoriness of “making use” of mediation. The wording indicates, without any ambiguity, that they may provide for the obligation of a party to initiate a mediation procedure. As it results from Recital (13) of the mentioned Directive, the voluntary nature of mediation lies not in the freedom of the parties to make use of this procedure or not, but in the fact that “the parties are themselves in charge of the process and may organise it as they wish and terminate it at any time”.
The Bucharest District 3 Court also assessed as necessary to authorize the disapplying of the applicable solutions of the constitutional court, especially in the specific national context, in which non-compliance with these decisions can trigger the disciplinary liability of the judge of the case. Consequently, under Article 267 of the Treaty on the Functioning of the European Union, referred to the Court of Justice of the European Union with the following preliminary questions: “1. Article 3 letter (a) in relation to Article 5 paragraph (2) of Directive 2008/52 on certain aspects of mediation in civil and commercial matters with reference to recitals (8) and (13) of the same Directive, must be interpreted in the sense that it does not preclude a regulation of a Member State under which, in certain types of disputes, such as in the situation in the main dispute, the parties are required to participate in the information session regarding the advantages of mediation, under penalty of the inadmissibility of the statement of claim? 2. The principle of the primacy of Union law must be interpreted in the sense that it precludes a national regulation or a practice according to which the national common law courts are bound by the decisions of the national constitutional court and cannot, for this reason and at the risk of committing a disciplinary offence, leave unapplied ex officio the case law resulting from the said decisions, even if they consider, in the light of a decision of the Court, that this case law is contrary to Article 3 letter (a) in relation to Article 5 paragraph (2) of Directive 2008/52 on certain aspects of mediation in civil and commercial matters with reference to recitals (8) and (13) of the same Directive? 3. Given the nature of the dispute, Article 2 letter (b), Article 6 par. (1) and Art. 7 par. (1) of Directive 93/13, as well as the principles of equivalence, effectiveness and legal certainty must be interpreted in the sense that they preclude a jurisprudential interpretation of the national regulation according to which, once established that a clause regarding the contractual interest is partially abusive, as in the pending dispute, the national judge, ex officio, can limit the amount of such interest, reducing the penalty clause to a reasonable limit?”.
In Romania, the refusal to introduce mandatory mediation into the legislation seems to be firm. Thus, in order to present the latest developments, on 15 June 2023, GEMME (Groupement Européen des Magistrats pour la Médiation) – Romanian Section sent a memorandum to the Minister of Justice, showing that, in the situation where there are approximately 25% vacant positions for judges in the judicial system and the admission procedures are difficult to go through, the budget restrictions are a serious element that can delay the employment of auxiliary staff, the need to establish mandatory mediation by law becomes an immediate solution to avoid convictions at the European Court of Human Rights caused by natural delays in the settlement of civil cases lato sensu, under the current circumstances of the acute shortage of staff.
In Romania, there is a trained body of mediators, lawyers and notaries public who can also be trained in amicable procedures, and mandatory mediation as a condition of admissibility of legal proceedings is already legislated in various countries of the European Union (see the Italian model, which can become viable for Romania as well; the model implies the compulsoriness to go through the mediation procedure prior to referring to the court, the costs for the first session being borne by the State, and the Constitutional Court of Italy validated the constitutionality of this model, by Decision no. 97 of 18 April 2019) and firmly supported by the mandatory case law of the Court of Justice of the European Union, respectively of the European Court of Human Rights.
The answer sent by the Ministry of Justice, through one of its State Secretaries, was that a new legislative draft cannot be proposed, given the decisions of the Constitutional Court of Romania which blocked mandatory mediation sine die.
Therefore, the referral to the Court of Justice of the European Union has an ultima ratio nature, being the only hope for introducing elements of mandatory mediation in Romania.
[1] Ph.D., Judge, Bucharest Court of Appeal; co-president of the Romanian Judges’ Forum Association. Professional e-mail: dragos.calin@just.ro
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