🇪🇺 European Union

This paper is a joint publication of the members of the IT IT LAW Group Europe, a tight network of legal professionals in the areas of IT law and intellectual property rights (IP).

1         European Union

1.1         LEGAL FRAMEWORK

The judicial process is one of those matters which has been only harmonised a little within the European Union. Each country is relatively free to set the rules for procedures conducted before its national courts. However, states must act in accordance with the general principles, issuing, in particular, from the European Convention on Human Rights.

1.2         MAIN PRINCIPLES

However, there are trends that can be observed:

  1. In civil and commercial matters, each party must notify the other, in principle at the beginning of the proceedings, regarding the pieces of evidence on which the legal action is based. The risk of a last minute surprise or of a hidden item, discovered during the hearing, is relatively low.
  2. Most proceedings require the preparation of a written position. Even when the law allows itself to be limited to oral considerations, it is recommended at most times to file, in addition, written evidence.
  3. In most countries, judges do not like pieces of evidence written in a foreign language. If there are correspondence or contracts to be produced in court, they must be translated into the language of the proceedings. Otherwise, one risks seeing the piece of evidence altogether excluded from the proceedings in court. On the other hand, most of the time, a simple translation is admitted (it is not necessary to use a sworn translator).
  4. There is a significant difference between substantive proceedings and injunction proceedings. Substantive proceedings are basically intended to definitively decide the dispute (subject to a party making an appeal). In injunction proceedings, the judge does not decide the dispute but has the power, under certain conditions, to order a provisional situation. Injunction proceedings are increasingly common, especially in cases related to IP and innovation.
  5. In some matters (often intellectual property), there may be special proceedings that seek to resolve the dispute definitively, but give rise to judgment as rapidly as injunction proceedings. This is one of the first things to check, because if this is the case, there is no time to lose!
  6. The adversarial principle is the basic guideline; unilateral (or ex parte) measures are the exception. Unilateral measures are those taken at the request of a party, without the judge hearing the other party. They are generally reserved for cases in which the judge recognises that the element of surprise or urgency is necessary. Sometimes, it is extreme urgency that justifies the assumption but it is relatively rare (it must be demonstrated that the urgency is such that it is necessary to derogate from the fundamental principle of adversarial proceedings in court).
  7. There is a very important dispute concerning the question of whether the judge is territorially competent. Indeed, the EU is a fairly small area with plenty of intra-Community trade, and it happens very often that a dispute involves several countries. This is even more true when the internet comes into play. The first thing to do is to identify the country in which the proceedings will be introduced (in defence, one will check also the means of challenging the jurisdiction of the court, if necessary). The issue is regulated by European legislation, but that legislation is very complex.
  8. Once a judgment is rendered in a civil or commercial matter, its execution within the European Union is greatly facilitated by the adoption of a number of texts that provide for virtually automatic recognition of decisions in the European Union.

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