Alternative dispute resolution mechanisms in the European union law

Abstract

Alternative Dispute Resolution is embedded in the legal order of the European Union, which is based on the rule of law and other fundamental principles comprising democracy, freedom, equality, respect for human rights and human dignity. The protection of these principles and rights is entrusted to the Court of Justice of the European Union Court. In certain areas plaintiffs may or must—before or instead of seeking protection by the Court—avail themselves of alternative or preliminary dispute resolution procedures. An infringement action against a Member State for noncompliance with Union law may be brought before the Union Court only after an administrative procedure before the Commission. The measures of the Commission taken in the proceedings are not binding. The competence to decide whether State aids are compatible with the internal market is generally entrusted to the Commission. The decisions are taken according to a supervisory procedure and can be challenged before the Union Court. Access to documents of Union institutions by individuals is regulated by Union law and can be granted or denied according to an administrative procedure by the institution concerned followed by a possible complaint to the Ombudsman and/or an action before the Union Court. In disputes between the Union and its officials, the judicial control is entrusted to the Union Court. An appeal to the Court is admissible—except for interim measures—only after going through a prelitigation administrative procedure before the authority which appointed the plaintiff. Principles of good governance to be observed by the Union institutions in administrative or out-of-court dispute resolution procedures are—in addition to the fundamental principles of Union law—the right to good administration and the requirements laid down in the Code of Good Administrative Behavior. Alternative Dispute Resolutions is one of the several novel means used by the EU Commission to foster the correct administration of the EU Internal Market. This means is used both on supranational and national levels. At supranational level, internal alternative dispute resolution schemes might initially have been motivated by the requirement of effective legal protection of individual rights as in the beginning of the establishment of EU agencies it was far from settled that their legal acts could be subject to judicial control by the EU Courts. Alternative dispute resolution before agencies also relieves the burden on the EU Courts and is a means to correct in a—compared to Court proceedings—rather quick and informal way the misapplication of EU internal market law. Seen in this perspective, appeal procedures that provide for a devolutive effect that grants the power to the board of appeals to directly replace the contested decision are preferable as they appear more effective. The same applies to proceedings having a suspensive effect. At national level, ADR combines with the trend of the Commission to establish networks of national administrations to improve uniform application of EU law across all EU member states and to develop common best practice standards. The SOLVIT system shows its effectiveness in reducing formal court proceedings before domestic courts and also before EU courts with regard to infringement proceedings under Article 258 TFEU. Its effectiveness, however, is reduced due to the fact that the initiation of formal judicial proceedings leads to a termination of the SOLVIT procedure.