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Short Studies in Private International Law

International
Dispute
Resolution
Selected Issues in International
Litigation and Arbitration

Vesna Lazić
Steven Stuij
Editors
Short Studies in Private International Law
Short Studies in Private International Law are short-book publications devoted to
topics in private international law, in particular international and European civil
procedure. The volumes can be a result of papers presented at conferences but can
also consist of short monographs or edited volumes on private international law,
aimed to inform academics and practitioners timely of recent developments. The
hardcover books are compact volumes of 100–150 pages and are characterized by
fast, global electronic dissemination, standard publishing contracts, standardized
manuscript preparation and formatting guidelines, and expedited production
schedules.

More information about this series at http://www.springer.com/series/15450

Vesna Lazić Steven Stuij
•

Editors

International Dispute
Resolution
Selected Issues in International Litigation
and Arbitration
Guest Editor: Ton Jongbloed

123
Editors
Vesna Lazić Steven Stuij
Private International Law Erasmus School of Law
T.M.C. Asser Instituut Rotterdam
The Hague The Netherlands
The Netherlands

ISSN 2522-8145 ISSN 2522-8153 (electronic)

Short Studies in Private International Law
ISBN 978-94-6265-251-4 ISBN 978-94-6265-252-1 (eBook)
https://doi.org/10.1007/978-94-6265-252-1

Library of Congress Control Number: 2018942004

Published by T.M.C. ASSER PRESS, The Hague, The Netherlands www.asserpress.nl

Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag Berlin Heidelberg

© T.M.C. ASSER PRESS and the authors 2018

No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any
means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written
permission from the Publisher, with the exception of any material supplied specifically for the purpose of
being entered and executed on a computer system, for exclusive use by the purchaser of the work.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are exempt from
the relevant protective laws and regulations and therefore free for general use.

Printed on acid-free paper

This T.M.C. ASSER PRESS imprint is published by the registered company Springer-Verlag GmbH, DE
part of Springer Nature
The registered company address is: Heidelberger Platz 3, 14197 Berlin, Germany
Contents

1 Considerations on the Impact of EU Law on National

Civil Procedure: Recent Examples from Belgium . . . . . . . . . . . . . . . 1
Janek Tomasz Nowak
2 The Internationalisation of Procedural Law: The Law
on Execution and Attachment Orders . . . . . . . . . . . . . . . . . . . . . . . . 43
Ton Jongbloed
3 Harmonisation of Conflict of Law Rules in the US? The
Example of Recognition and Enforcement of Foreign
Money Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Elsemiek Apers
4 The Harmonisation of Interim Measures Granted
by the Emergency Arbitrator in the European Union . . . . . . . . . . . . 87
Junmin Zhang
5 Resolving Foreign Direct Investment-Related Disputes in China’s
Legal System: What to Expect and How to Understand? . . . . . . . . . 109
Chunlei Zhao

v
Chapter 1
Considerations on the Impact of EU Law
on National Civil Procedure: Recent
Examples from Belgium

Janek Tomasz Nowak

Contents

1.1 Introduction........................................................................................................................ 2
1.2 EU Law Requirements for National Civil Procedure: The Overarching Framework ..... 3
1.2.1 The Concept of National Procedural Autonomy ................................................... 3
1.2.2 EU Law as a Multiple Constraint on National Civil Procedure ........................... 9
1.3 Civil Procedure in EU Legislation and EU Case Law: Recent Examples and Impact
on the Belgian Legal Order .............................................................................................. 9
1.3.1 National Civil Procedure in the Case Law of the Court of Justice ...................... 9
1.3.2 EU Rules on Civil Procedure................................................................................. 19
1.4 Different Approaches to Civil Procedure.......................................................................... 29
1.4.1 EU Approach to Civil Procedure: Sectoral and Functional .................................. 29
1.4.2 Member State Approach to Civil Procedure: Horizontal and Autonomous ......... 32

This contribution is based on a presentation given at the 21st Ius Commune congress in
Maastricht, the Netherlands, on 24–25 November 2016. The text was finalised on 12 July 2017.
Subsequent evolutions have not been taken into account, apart from the amendment to Article
806 Belgian Judicial Code and the Conclusions of Advocate-General Sharpston in Karel de
Grote (C-147/16). Important developments in 2018 have been added as a footnote without
further analysis. I would like to thank Professor V. Lazic and Mr. S. Stuij for their helpful
comments on the draft version, which have improved the text considerably. I am equally
indebted to Dr. S. Sobrie. I would also like to thank Professor T. Jongbloed for the opportunity
to present at the workshop and to contribute to this volume. All mistakes remain my own.

J. T. Nowak (&)
Max Planck Institute for Procedural Law, Luxembourg, Luxembourg
e-mail: [email protected]
J. T. Nowak
MCI Management School, Innsbruck, Austria
J. T. Nowak
Institute for European Law, KU Leuven, Belgium

© T.M.C. ASSER PRESS and the authors 2018 1

V. Lazić and S. Stuij (eds.), International Dispute Resolution,
Short Studies in Private International Law,
https://doi.org/10.1007/978-94-6265-252-1_1
2 J. T. Nowak

1.5 Consequences for Civil Procedure at the Member State Level ....................................... 34
1.5.1 The Issue of Fragmentation.................................................................................... 34
1.5.2 Competence for Regulation of Civil Procedure..................................................... 36
1.5.3 The Future of Civil Procedure Regulation in the EU ........................................... 37
1.6 Concluding Remarks ......................................................................................................... 38
References .................................................................................................................................. 39

Abstract While the impact of EU law on national civil procedure is strongly

visible in cross-border proceedings, it has potentially a much stronger effect in
internal proceedings. Yet its visibility in regard of a domestic context is until today
limited, both in practice and in research. This contribution attempts to shed light on
the impact of EU law on internal national civil procedure by providing for a number
of brief case studies on Belgian civil procedure. The relevance of EU law for the
national debate will be considered, as well as its impact on the regulation of civil
procedure. Subsequently, the case studies will be used to provide for a number of
general considerations regarding the impact of EU law on national civil procedure.
These considerations transcend the Belgian legal order and have as their aim to
foster the debate on the future of civil procedure in an EU law context.

Keywords Civil procedure EU law Court of Justice of the European Union




Effectiveness National procedural autonomy Belgium Ex officio application





Costs for expertise Private damages for competition law violations Trade Secrets




Fragmentation of civil procedure Regulation of civil procedure

1.1 Introduction

A considerable part of substantive law in EU Member States is affected by EU law

in one way or another. When a dispute arises involving points of EU law, it is the
task of the courts of the Member States to provide for a solution in line with EU
law. They are the ‘ordinary courts’ of EU law,1 the Court of Justice of the European
Union (CJEU) only having reserved jurisdiction for a limited number of matters.2
The conduct of litigation before national courts is regulated by national proce-
dural law. This is not different when matters of EU law are involved.3 National
courts thus apply national rules of procedure when deciding cases involving an EU
law element. It therefore comes primarily to the Member States to provide for an
appropriate procedural law framework. However, procedural law can have an

1
Opinion of 8 March 2011, Draft agreement on the European and Community Patents Court,
1/09, EU:C:2011:123, para 80.
2
Article 256 TFEU in conjunction with Article 51 Protocol (No 3) on the statute of the Court of
Justice of the European Union
3
Kakouris 1997, p. 1394.
1 Considerations on the Impact of EU Law … 3

impact on the application of substantive law,4 limiting its effects. In order to

overcome difficulties in this regard the Court of Justice (CJ) has laid down an
effectiveness doctrine, allowing national courts to disregard national rules of pro-
cedure obstructing the effective application of EU substantive law.5 Also the EU
legislator has enacted rules on procedural law with the aim of securing the proper
application and enforcement of substantive EU law.6
This contribution considers the (potential) impact of EU law on national civil
procedure. In the first part I will provide a number of general considerations
regarding the relevance of EU law for national civil procedure and the functioning
of the effectiveness requirement. In the second part I will give a number of
examples of the impact of EU legislation and EU case law on national civil pro-
cedure in Belgium. Building on this, I will develop a number of broader insights on
the difference in approach to civil procedure at EU and at Member State level. I will
use these insights to address in the final part a number of consequences of EU law
interference with national civil procedure, highlighting the importance of having a
proper debate regarding the impact of EU law on national civil procedure.

1.2 EU Law Requirements for National Civil Procedure:

The Overarching Framework

1.2.1 The Concept of National Procedural Autonomy

1.2.1.1 Origins

The system of judicial protection in the European Union is characterised by its

decentralised nature.7 Member States’ courts have been entrusted with the task of
applying and enforcing EU substantive law in day-to-day situations.8 They use for
this purpose their own national procedural law. The application of national pro-
cedural law to disputes involving EU law elements has given rise to a number of
questions. It was acknowledged that the unrestricted application of national

4
Zekoll 2006, p. 1336.
5
Reich 2014, pp. 89–131; Kulms 2013, pp. 21–22.
6
See, for example, Directive 2009/22/EC of the European Parliament and of the Council of 23
April 2009 on injunctions for the protection of consumers’ interests, O.J. 2009, L 110/30,
replacing Directive 98/27/EC of the European Parliament and of the Council of 19 May 1998 on
injunctions for the protection of consumers’ interests, O.J. 1998, L 166/51 and Directive 2010/104/
EU of the European Parliament and of the Council of 26 November 2014 on certain rules gov-
erning actions for damages under national law for infringements of the competition law provisions
of the Member States and of the European Union, O.J. 2014, L 349/1.
7
Schermers and Waelbroeck 2001, p. 197.
8
Opinion of 8 March 2011, Draft agreement on the European and Community Patents Court, 1/
09, EU:C:2011:123, paras 66–69.
4 J. T. Nowak

procedural law may have an impact on the effective application of EU substantive

law. In response to this concern, the Court of Justice has developed a so-called
doctrine of national procedural autonomy.9 The doctrine entails that in the absence
of harmonised rules on the matter, Member States are free to enact rules of national
procedural law provided that claims based on EU law are not treated less favourably
than similar claims based on national law (principle of equivalence)10 and that
national procedural rules do not make the enforcement of rights deriving from EU
law virtually impossible or excessively difficult (principle of effectiveness).11 This
contribution will focus on the effectiveness requirement of the Court’s doctrine.
The notion ‘national procedural autonomy’ is often used in the legal and political
debate to refer to the case law of the Court of Justice concerning national procedural
law. It should be pointed out, however, that the Court did not coin the term national
procedural autonomy. The notion has been derived from the notion of ‘autonomie
institutionnelle’, used already in 1972 by Rideau as a doctrinal framework to
describe the relationship between EU substantive law and Member State law, inter
alia procedural law.12 It should be noted that this predates the Court’s decisions in
Rewe and Comet. The notion of autonomy was thus not specifically conceived as a
description of the case law of the Court of Justice on national procedural law; it was
only later on that it was used in legal doctrine to refer to the Court’s case law on
national procedural rules because it concerned largely a similar issue. It does,
however, not accurately describe the Court’s case law on the matter and remains
highly contested in legal doctrine.13 This is even so despite the fact that the Court
has started referring to the concept of ‘national procedural autonomy’ in its deci-
sions since in the beginning of the 2000s.14

1.2.1.2 The Issue of Autonomy

Member States Are Not Autonomous When Enacting Rules of Civil

Procedure

A problematic aspect of the notion ‘national procedural autonomy’ is the concept of

‘autonomy’,15 which puts too much emphasis on the freedom of the Member States

9
Judgment of 16 December 1976, Rewe, 33/76, EU:C:1976:188 and Judgment of 16 December
1976, Comet, 45/76, EU:C:1976:191. See also Galetta 2010, pp. 118–119.
10
König 2011, pp. 92–104.
11
Kulms 2013, pp. 21–22.
12
Rideau 1972, p. 884; Haapaniemi 2009, p. 89.
13
Póltorak 2015, pp. 33–35; Bobek 2012, p. 320–322; Kakouris 1997, p. 1390.
14
Judgment of 7 January 2004, Wells, C-201/02, EU:C:2004:12, para 67. Before, the concept of
procedural autonomy was mainly used in the argumentation of the parties or in competition law
appeals concerning the actual autonomy of courts in light of Article 6 ECHR. It was, however, not
linked to the requirements of equivalence and effectiveness until the Court’s judgment in Wells.
15
Bobek 2012, p. 321.
1 Considerations on the Impact of EU Law … 5

to enact procedural rules16 and minimalises the ever increasing impact of the
effectiveness requirement on national procedural law.17 A glance at the case law of
the Court shows that the concept of ‘autonomy’ is misguiding in this regard,18 its
decisions touching upon a variety of procedural themes such as time-limits,19
evidence,20 standing,21 competence,22 jurisdiction,23 ex officio application,24
availability of remedies25 and the principle of res judicata.26
A good example to illustrate this point concerns the Spanish procedural
framework for mortgage enforcement proceedings. It appeared that parties being
faced with enforcement proceedings could not seek the termination of these pro-
ceedings on account that the contractual term on which the right to seek enforce-
ment was based was unfair. Such claim could not be raised in enforcement
proceedings but had to be pursued in separate proceedings to obtain a declaratory
judgment. These declaratory proceedings did, however, not have a suspensive effect
on the actual enforcement proceedings. The Court of Justice held in Aziz that such a
procedural framework rendered the application of the Unfair Contract Terms
Directive (hereafter ‘UCTD’)27 excessively difficult in so far as it made it impos-
sible for the court hearing the declaratory proceedings to grant interim relief capable
of staying or terminating the mortgage enforcement proceedings, where such relief
was necessary to ensure the full effectiveness of its final decision.28 The Spanish
legal framework was subsequently amended, allowing parties to raise the unfairness
of contract terms in the context of mortgage enforcement proceedings to resist
enforcement.29 The choice of the Spanish legislator to regulate its mortgage
enforcement proceedings in a certain manner was thus invalidated by the Court of
Justice on account that it interfered with the effective application of the UCTD.

16
Półtorak 2015, p. 37.
17
Bobek 2012, pp. 322–323.
18
Lenaerts et al. 2014, pp. 118–156; Le Baut-Ferrarese 2010, p. 81.
19
Judgment of 8 July 2010, Bulicke, C-246/09, EU:C:2010:418, paras 36–37.
20
Judgment of 9 November 1983, San Giorgio, 199/82, EU:C:1983:318, para 14.
21
Judgment of 8 March 2011, Lesoochranárske zoskupenie, C-240/09, EU:C:2011:125, para 52.
22
Judgment of 15 April 2008, Impact, C-268/06, EU:C:2008:223, para 51; Judgment of 27 June
2013, Agrokonsulting, C-93/12, EU:C:2013:432, para 37.
23
Order of 12 June 2008, Vasilakis, C-364/07, EU:C:2008:346, paras 149–150.
24
Judgment of 14 December 1995, van Schijndel and van Veen, C-430/93 and C-431/93, EU:
C:1995:441.
25
Order of 14 November 2013, Banco Popular Español, C-537/12 and C-116/13, EU:
C:2013:759, paras 48–59.
26
Judgment of 3 September 2009, Fallimento Olimpiclub, C-2/08, EU:C:2009:506, para 31.
27
Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, O.J. 1993,
L 95/29.
28
Judgment of 14 March 2013, Aziz, C-415/11, EU:C:2013:164, para 63.
29
Law No 1/2013 of 14 May 2013 laying down measures for the strengthening of the protection of
mortgagors, the restructuring of debt and social rent (Ley 1/2013 de medidas para reforzar la
protección a los deudores hipotecarios, reestructuración de deuda y alquiler social), BOE N° 116
of 15 May 2013, p. 36373.
6 J. T. Nowak

Similar to other rules of national law, rules of civil procedure can thus be
considered as measures by which a Member State ensures the proper application of
EU substantive law. If those rules prove to be counterproductive to that aim,30 they
might need to be altered or set aside (negative harmonisation).31 There exists in this
regard no greater freedom for Member States to maintain rules that potentially
obstruct the implementation of EU law than in any other area of law. From an EU
law perspective, procedural rules are on par with substantive rules or rules of
administrative procedure.32

The EU Has an Extensive Competence to Enact Rules of Civil Procedure

The emphasis that is being put on the notion of ‘autonomy’ also negates the first
part of the Court’s holding in the Rewe and Comet decisions, as it gives the
impression that there is only limited competence for the EU to intervene on matters
of procedural law.33 This is, however, an incorrect view. Currently, an increasing
body of procedural rules is being enacted by the EU legislator, further disproving
the idea that a special kind of autonomy exists for the Member States in relation to
procedural law.34
It should be noted that no general competence clause exists for the EU to enact
procedural law. However, procedural rules are considered to be rules necessary for
the enforcement of EU substantive law35 and can therefore be adopted on the basis
of the competence provision for a specific substantive law area (positive harmon-
isation). For example, the competence for consumer policy also implies a compe-
tence to lay down procedural rules contributing to the application and enforcement
of EU consumer law.36 The EU does not need a procedural competence clause to
enact procedural law.
The enactment of a procedural rule by the EU legislator entails the consequence
that there is no longer any freedom for the Member States to enact procedural rules

30
Adinolfi 2012, pp. 299–300.
31
Normand 2006, p. 381; Van Gerven 2000, pp. 506–509; Kakouris 1997, p. 1396.
32
Kovar 1973, pp. 201 et seq: “On voit mal les raisons qui pourraient justifier l’octroi d’une
immunité particulière aux règles du droit judiciaire.”
33
Kakouris 1997, pp. 1396–1397.
34
Wilman 2015, pp. 404–405; Le Baut-Ferrarese 2010, p. 81. See also a recent resolution of the
European Parliament, calling the European Commission to launch a proposal for the minimum
harmonisation of civil procedure in the Member States: European Parliament resolution of 4 July
2017 with recommendations to the Commission on common minimum standards of civil proce-
dure in the European Union, P8_TA(2017)0282.
35
Adinolfi 2012, p. 303.
36
See in this regard the Injunctions Directive, which was based on the EU’s internal market
competence. That competence was mainly used to adopt substantive consumer law provisions.
Also note that the recitals of the Directive make a connection between the adoption of the
Directive and the need to secure the effective enforcement of a numbers of substantive consumer
law Directives.
1 Considerations on the Impact of EU Law … 7

on similar matters. This is a logical consequence of the principle of primacy and the
pre-emption principle.37 Member States cannot deviate from EU rules and the same
goes when those rules are of a procedural nature. An example can be found in the
Injunctions Directive, which obliges Member States to create an injunction pro-
cedure that allows for the cessation or prohibition of any infringement of a number
of consumer law directives.38 Member States cannot do anything else but comply
with this obligation. The fact that a Member State is of the opinion that other
procedural instruments are more appropriate for that purpose is irrelevant; the EU
legislator has made the determination that an injunction is an appropriate instrument
and Member States have to adhere to this choice. A strict primacy test applies in
this regard, discarding any national rules that deviate from the EU standard. The
assessment of the Court of Justice will in such a situation not entail an evaluation of
the appropriateness of the choices made by the national legislator, but merely a
verification of the correct implementation of the relevant EU rules.
An in-between position can be found in relation to EU directives giving Member
States some latitude in implementing procedural provisions. This is for example the
case for Article 14 IP Enforcement Directive,39 which provides that:
Member States shall ensure that reasonable and proportionate legal costs and other
expenses incurred by the successful party shall, as a general rule, be borne by the unsuc-
cessful party, unless equity does not allow this.

While Member States retain a margin of discretion when it comes to determining

what reasonable and proportionate costs entail, the Court of Justice will evaluate
national implementing measures in the light of the goals of the specific directive,
providing for a close scrutiny of the procedural choices made by the national
legislator.40 This is, however, not a question of ‘national procedural autonomy’41
but of the effet utile of the directive.42

37
Article 2(2) TFEU.
38
Directive 2009/22/EC of the European Parliament and of the Council of 23 April 2009 on
injunctions for the protection of consumers’ interests, O.J. 2009, L 110/30, replacing Directive 98/
27/EC of the European Parliament and of the Council of 19 May 1998 on injunctions for the
protection of consumers’ interests, O.J. 1998, L 166/51.
39
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the
enforcement of intellectual property rights, O.J. 2004, L 157/45 and Corrigendum, O.J. 2004, L
195/16. (Hereafter ‘IP Enforcement Directive’ or ‘IPED’).
40
Hess 2010, p. 627. Note that also in such cases Article 47 CFR may be part of the analysis.
A rule that allows for the effective enforcement of EU law does not necessarily correspond to the
right to effective judicial protection.
41
Wilman 2015, p. 409.
42
Judgment of 5 April 2017, Marina del Mediterráneo, C-391/15, EU:C:2017:268, para 33;
Judgment of 17 July 2014, Sánchez Morcillo, C-169/14, EU:C:2014:2009, para 50.
8 J. T. Nowak

1.2.1.3 The Relevance of Fundamental Rights

I should also briefly mention a third EU law constraint on national procedural law,
namely the Charter of Fundamental Rights (hereafter ‘Charter’ or ‘CFR’). Article
47 CFR lays down the right to an effective remedy before a court. According to
Article 51 CFR and the explanations accompanying Article 47 CFR,43 Member
States are bound by the Charter when acting in the scope of EU law. This means
that the standard of Article 47 CFR applies each time national civil procedure is
being used to apply and enforce EU law obligations. It may even require Member
States to go beyond the standard laid down in Articles 6 and 13 ECHR, the CFR
providing for a higher level of judicial protection.44
Further to this, it should be pointed out that the fundamental rights standard
applies regardless of the existence of specific procedural rules laid down at EU
level. National civil procedure is thus not only subject to a general effectiveness test
that verifies whether national procedural law allows for the effective application of
EU substantive law but also to a strict fundamental rights test that verifies whether
national procedural law guarantees an effective remedy. Even in the absence of EU
rules on procedural law, Member States are constrained by EU law in a double way
regarding their freedom to enact rules of civil procedure.
Adding to this, it should be noted that the effective application of EU law itself
can be limited by the right to a fair trial as laid down in Article 47 CFR.45 After all,
the fundamental right to effective judicial protection is a minimum standard to
which also the Court and the EU legislator must adhere, unless it appears to be
justifiable to deviate from that standard. The effective application of EU substantive
law is thus not absolute.
Lastly, while Article 47 CFR is part of the general framework of the impact of
EU law on national civil procedure, I will not specifically deal with its impact in the
remainder of this contribution. This is a deliberate choice, which reflects the aim of
this contribution, namely to uncover the specific impact of EU law effectiveness
requirements on national civil procedure. The impact of the application of the
principle of effective judicial protection is, however, not specific to the EU as the
principle also exists in relation to the European Convention of Human Rights and
the Strasbourg case law, which generates similar effects. For that reason, it has been
left out of the following analysis.

43
Explanations relating to the Charter of Fundamental Rights (2007/C 303/02), O.J. 2007, C 303/17.
44
Judgment of 22 December 2010, DEB, C-279/09, EU:C:2010:811, para 35.
45
Judgment of 21 February 2013, Banif Plus Bank, C-472/11, EU:C:2013:88, para 29.
1 Considerations on the Impact of EU Law … 9

1.2.2 EU Law as a Multiple Constraint on National Civil

Procedure

EU law requirements for national civil procedure may originate in multiple sources:
an obligation laid down in an EU instrument (primacy/effet utile), the effective
application of EU substantive law (principle of effectiveness), or the Charter of
Fundamental Rights of the European Union (principle of effective judicial protec-
tion). When national civil procedure comes within the scope of EU law, the free-
dom on part of the national legislator to enact procedural rules is thus severely
limited. The concept of ‘national procedural autonomy’ is therefore not an accurate
reflection of the actual situation. The continued use of it is, however, problematic as
it obfuscates the debate on the impact of EU law on national procedural law,
especially in regard of civil procedure.

1.3 Civil Procedure in EU Legislation and EU Case Law:

Recent Examples and Impact on the Belgian Legal
Order

In this section I will illustrate the impact of the effectiveness requirement by pro-
viding some recent examples from Belgium. I will focus on the effects of EU
legislation providing for procedural rules as well as the Court’s case law concerning
the interplay of national rules of civil procedure and the effective application of EU
substantive law. For reasons mentioned above, I will not include the specific impact
of the EU principle of effective judicial protection on national civil procedure.
In the first subsection, I will focus on the impact of the Court’s case law on
Belgian national civil procedure. The second subsection addresses a number of
recent legislative initiatives taken at EU level and how they impact on the Belgian
legal order. The twofold approach reflects the two sources from which EU law
influence over national civil procedure is stemming, namely the EU judiciary and
the EU legislator.

1.3.1 National Civil Procedure in the Case Law of the Court

of Justice

1.3.1.1 Introduction

This subsection illustrates how the Court of Justice uses the effectiveness
requirement as a means to assess the appropriateness of national procedural law in
light of EU substantive law (Sect. 1.3.1.2) and to evaluate the implementation of
EU procedural legislation in national law (Sect. 1.3.1.3). It also looks at the
10 J. T. Nowak

ramifications of the case law in the Belgian legal order and the relevance of the
Court’s decisions for broader debates in Belgian civil procedure.

1.3.1.2 Ex Officio Application of the Unfair Contract Terms Directive

General

The case law of the Court of Justice on the ex officio application of EU law is
embedded in the traditional doctrine of ‘national procedural autonomy’, as exem-
plified by the Court’s decision in van Schijndel and van Veen.46 In matters con-
cerning consumer protection, its approach is however slightly different. In the context
of the Unfair Contract Terms Directive, a line of case law has developed that obliges
national courts to raise the unfairness of contractual terms in consumer contracts both
within the framework of the national procedural autonomy doctrine (principle of
effectiveness) and the application of the UCTD (primacy/effet utile).47 This line of
case law was cautiously expanded to a number of other consumer law directives later
on.48 It remains, however, unclear to which extent the decisions in relation to the
UCTD are unreservedly applicable in other contexts. I will therefore concentrate on
the ex officio application of the UCTD, where the development is the strongest.
Article 6 UCTD provides that unfair contract terms should not be binding upon
consumers. The Court of Justice inferred from this a duty for national courts to raise
and apply the UCTD of their own motion. This implies three main tasks: (1) veri-
fying whether a contract term comes within the scope of the UCTD, if necessary by
taking measures of inquiry ex officio;49 (2) raising and applying the UCTD ex
officio, meaning evaluating whether an imbalance exists between the contracting
parties and whether the principle of good faith has been compromised;50 (3) making
sure that the unfair contract term does not bind the consumer,51 which in many legal
systems means that the unfair contract term should be declared void. While exer-
cising these tasks they should respect the right to a fair trial52 and leave the con-
sumer the possibility to denounce the protection conferred upon it by the UCTD
after a debate on the matter.53 One may thus wonder whether it is really a matter of
ex officio application or rather a duty to inform the consumer.

46
Judgment of 14 December 1995, van Schijndel and van Veen, C-430/93 and C-431/93, EU:
C:1995:441.
47
Lenaerts et al. 2014, pp. 135–136.
48
Judgment of 4 October 2007, Rampion, C-429/05, EU:C:2007:575; Judgment of 17 December
2009, Martín Martín, C-227/08, EU:C:2009:792.
49
Judgment of 9 November 2010, VB Pénzügyi Lízing, C-137/08, EU:C:2010:659, para 56.
50
Judgment of 4 June 2009, Pannon, C-243/08, EU:C:2009:350, para 32.
51
Judgment of 30 May 2013, Asbeek Brusse, C-488/11, EU:C:2013:341, para 49.
52
Banif Plus Bank, para 31.
53
Pannon, para 33.
1 Considerations on the Impact of EU Law … 11

Interestingly, Article 6 UCTD does not make any reference to ex officio appli-
cation by judges. The Court has nevertheless read into this provision a duty of ex
officio application by taking into account the specifics of consumer litigation. The
Court’s rationale is based on the assumption that the amounts involved in consumer
disputes are often limited and disproportionately low in relation to lawyers’ fees,
which may deter consumers from seeking representation in order to contest a claim
based on an unfair contract term. A consumer may then default, especially in the
case of unfair forum clauses.54 In case the consumer would nevertheless appear and
represent her or himself, the Court assumes that the consumer is not always
properly informed about the rights conferred upon her or him by the UCTD and will
not avail her or himself of them properly.55 If national procedural law would then
leave it to the consumer to invoke the UCTD, this would entail the consequence
that the UCTD would not be applied and that its effects and long term policy goals
would not be realised.56 Intervention unconnected to the actual parties to the
contract may thus be necessary.57 The Court then determined that such intervention
implies the ex officio application of the UCTD by the national judge.58 National
judges are thus effectively entrusted with the task of applying and enforcing the
UCTD in the Member States.
Note that the obligation to apply the UCTD is directly based on the directive
only in case of ordinary first-instance proceedings. In case of special proceedings,
such as enforcement proceedings59 or payment order proceedings,60 the Court has
analysed the lack of a duty for the judge to apply the UCTD ex officio through the
lens of the national procedural autonomy doctrine and did not base such obligation
directly on the UCTD. Why it did so is not entirely clear. Perhaps the Court signals
that a general obligation to apply the UCTD ex officio does not exist in special
proceedings and that the obligation to apply the UCTD ex officio in those cases was
a solution tailored to a specific problem that existed in a particular Member State.
That being said, the outcomes of Pannon and Banco Español de Crédito are
nevertheless the same, regardless of the route taken by the Court; a duty of ex officio
application exists. At times the principle of effectiveness allows for as little leeway
as the primacy/effet utile approach.
Next to the need for the effective application of the UCTD, the Court also
pointed at the importance of the UCTD from a policy perspective, classifying it as a
rule on par with national rules of public policy.61 It did so because many Member

54
Judgment of 27 June 2000, Océano Grupo Editorial, C-240/98 to C-244/98, EU:C:2000:346,
para 26.
55
Ibid.
56
Ibid.
57
Océano Grupo Editorial, para 27.
58
Océano Grupo Editorial, para 29.
59
Aziz, para 49.
60
Banco Español de Crédito, para 45.
61
Judgment of 6 October 2009, Asturcom, C-40/08, EU:C:2009:615, paras 51–52.
12 J. T. Nowak

States know a concept of public policy in relation to a duty of ex officio application.

By taking this approach, the Court was able to reconcile the need for an effective
application of the UCTD with existing rules of national civil procedure. The
problem is that in various Member States consumer law as such is not considered to
be of public policy and that the nullity of contract terms—closely linked to the idea
of the UCTD—is equally not always a matter of public policy.62 Where a Member
State bases the ex officio application of the law on the presence of an issue of public
policy, a strict application of that requirement may lead to the UCTD not being
applied ex officio by judges. The issue became problematic in Belgium after the
2015 reform of default proceedings, requiring courts to verify only matters of public
policy in the context of default proceedings.

The 2015 Reform of Default Proceedings in Belgium

In 2015 the Belgian Judicial Code (hereafter ‘JC’)63 was amended on various points
as part of a series of reforms to modernise civil procedure.64 One of these points
concerned Article 806 JC on default proceedings. The aim of the amendment was to
settle a longstanding discussion within the Belgian legal order, namely the task of
the judge in default proceedings.65 One part of the judiciary considered it to be its
task to apply the law ex officio and to maximise protection for the defaulting party;
another part of the judiciary considered itself restrained and was only prepared to
invoke rules of a public policy nature.66 The 2015 amendments codified the min-
imalist approach, courts only being required to apply rules of a public policy nature
in default proceedings.67
The amendment has led to a debate in the Belgian legal order about the extent to
which judges were restrained by Article 806 JC in applying the law ex officio.68 It
should be pointed out in this regard that consumer law as such is not considered to
be part of the rules of public policy in the Belgian legal order, apart from a number
of specific provisions.69 The laws regarding unfair contract terms are not part of
those specific provisions, the Belgian Supreme Court having explicitly ruled so.70
Conversely, however, the rules of the Civil Code regarding disproportionate penalty

62
The issue has given rise to the judgment of the Court in Rampion. See Rampion, para 58.
63
The code containing the Belgian rules on civil procedure is called ‘Gerechtelijk Wetboek’/‘Code
judiciaire’. I will use the literal English translation throughout this contribution in order to stay as
close as possible to its actual name instead of using a functional translation, such as ‘Code of Civil
Procedure’.
64
For an overview of the most important changes, see Van Drooghenbroeck 2016a.
65
Van Drooghenbroeck 2016b, pp. 197–199.
66
Van Drooghenbroeck 2016b, pp. 199–202.
67
Van Drooghenbroeck 2016b, p. 203.
68
Van Drooghenbroeck 2016b, pp. 212–217.
69
Steennot 2016, p. 430.
70
Belgian Supreme Court 26 May 2005, Journal des Tribunaux 2005, 679.
1 Considerations on the Impact of EU Law … 13

and interests clauses are considered to be rules of public policy.71 Does this mean
that there is no problem? Not exactly. While disproportionate penalty and interest
clauses are the most common examples of unfair contract terms, the rules regarding
unfair contract terms cover a much broader spectrum of potentially unfair contract
clauses. Moreover, case law has been reported in which judges have even refused to
make use of their general powers to limit ex officio disproportionate penalty and
interest clauses following the amendment of Article 806 JC.72 The 2015 amend-
ment has therefore raised questions within the judiciary and legal doctrine regarding
the application of the rules on unfair contract terms in default proceedings.73
The legislator has responded to these concerns by amending Article 806 JC in
the summer of 2017,74 adding that a judge could also apply of his own motion rules
of which a law has stated that a judge could apply them ex officio. One could
wonder whether this will solve the issue, especially when it comes to unfair contract
terms.75 A solution may be found, however, in the Court’s case law on the ex officio
application of the UCTD. Two approaches can be taken in this regard.
First, one could employ the effectiveness approach. The effective application of
the UCTD requires a judge to raise the unfairness of contract terms of its own
motion in consumer disputes. National law cannot limit that obligation on account
of the principle of primacy of EU law or the principle of effectiveness. If judges
would feel that Article 806 JC limits them in this regard, they can merely disregard
this limitation. The question is whether this approach is possible in a conflict
between two private parties, given the limitations on the horizontal direct effect of
EU directives.76 One could however argue that it is not an issue of direct effect, i.e.
creating rights/obligations directly on the basis of the directive, but merely one of
primacy, i.e. ousting the conflicting national rule. Also, it creates merely a rule for
the judge, not for the parties as such. Since a judge has an obligation to apply EU
law correctly,77 he or she will be required to oust the conflicting national rule that
limits his power to raise the UCTD ex officio. That in itself would not create any
obligations on the part of a private individual but merely entail adverse

71
Van Orshoven 2016, p. 154.
72
Justice of the Peace Genk, 15 December 2015, Revue de Droit Judiciaire et de la Preuve 2016,
228.
73
Steennot 2017, p. 123. These concerns were, however, not unequivocally shared by legal
doctrine. See Mosselmans 2016–2017, p. 23 and Van Orshoven 2016, p. 154.
74
Article 138 Law on the simplification, harmonisation, informatisation and modernisation of
provisions of civil law and civil procedural law as well as regarding the profession of the notary,
and regarding various provisions concerning the justice system (Loi portant simplification, har-
monisation, informatisation et modernisation de dispositions de droit civil et de procédure civile
ainsi que du notariat, et portant diverses mesures en matière de justice), Belgian State Gazette 24
July 2017, 75168.
75
Steennot 2017, p. 123; Scheers and Thiriar 2017–2018, p. 723.
76
Judgment of 14 July 1994, Faccini Dori, C-91/92, EU:C:1994:292, paras 19–26.
77
Judgment of 26 October 2016, Canal Digital Danmark, C-611/14, EU:C:2016:800, paras
30–32.
14 J. T. Nowak

consequences resulting from the fact that the national court is now obliged to apply
the UCTD ex officio. This is allowed according to the case law of the Court of
Justice;78 no rights or obligations are being created for individuals.79
It would also be possible to circumvent the direct effect issue altogether.
Therefore, we turn to the other part of the ‘national procedural autonomy’ doctrine,
namely the principle of equivalence. In accordance with that principle, claims based
on EU law should not be treated less favourably than claims based on national
law.80 The Court has applied the principle of equivalence a number of times in the
context of the ex officio application of the UCTD, holding that if national law allows
for rules of public policy to be applied ex officio, the UCTD should be considered as
a rule of public policy for that purpose.81 The advantage of this approach is that it
does not call for a disruption of national procedural rules and that it reconciles the
requirements flowing from EU law with the policy choices of the national legislator.
It also prevents judges from having to enter into debate on the direct effect of the
UCTD in horizontal situations. It requires, however, that judges consider the UCTD
and its implementing rules as rules of a public policy nature. This may be prob-
lematic because the Belgian Supreme Court has explicitly stated that laws regarding
unfair contract terms are as such not of public policy.82 The question is thus
whether judges in all circumstances will make the subtle distinction between ‘is a
rule of public policy’ and ‘should be treated as similar to rules of public policy’.83
Practice will demonstrate which approach will be taken to overcome the limiting
effect of Article 806 JC. Decisions have been reported in which courts have
explicitly disregarded Article 806 JC by holding that EU law requires the UCTD
and its implementing legislation to be applied ex officio.84 While this is the correct
approach, it confirms the argument that Article 806 JC is problematic from an EU
law point of view and that the legal framework is currently unclear. The Belgian
Supreme Court has already made way for a more extensive interpretation of Article
806 JC, holding that it is for the courts to interpret the scope of Article 806 JC.85

78
See in a different situation: Judgment of 7 January 2004, Wells, C-201/02, EU:C:2004:14, para
57.
79
See in this regard Judgment of 26 September 2000, Unilever Italia, C-443/98, EU:C:2000:496,
para 51.
80
Judgment of 21 December 2016, TDC, C-327/15, EU:C:2016:974, para 92.
81
Judgment of 6 October 2009, Asturcom, C-40/08, EU:C:2009:615, para 52.
82
See supra, note 70.
83
Steennot 2017, p. 123.
84
Court of First Instance West-Flanders, 13 September 2016, Rechtskundig Weekblad 2016–
2017, 996; Justice of the Peace Bruges, 26 February 2016, Journal des Juges de Paix 2017, 58;
Justice of the Peace Westerlo, 2 March 2016, Rechtskundig Weekblad 2016–2017, 273; Justice of
the Peace Fléron, 22 March 2016, Journal des Juges de Paix 2016, 272; Justice of the Peace Liège,
11 May 2016, Journal des Juges de Paix 2017, 36.
85
Belgian Supreme Court 13 December 2016, N° P.16.0412.N; for a comment, see Mosselmans
et al. 2016–2017.
1 Considerations on the Impact of EU Law … 15

This would allow judges to be more flexible. Nevertheless, it will probably take a
judgment of the Court of Justice to provide a definite solution to the problem.
A reference for a preliminary ruling on the matter is currently pending before it.86 In
her Opinion of 30 November 2017, Advocate-General Sharpston has argued, lar-
gely basing herself on the principle of equivalence, that “under Article 806 Judicial
Code the national court is obliged to assess of its own motion whether a clause is
unfair in the light of Directive 93/13 in the same way as it does for national rules of
public policy”.87 In light of its judgment in Asturcom,88 it is very likely that the
Court will come to the same conclusion.89

1.3.1.3 Rules on the Reimbursement of Party-Appointed Expert Fees

and the IP Enforcement Directive

Costs for legal assistance by a lawyer or a party-appointed expert were not

recoverable under Belgian law until recently. The Judicial Code of 1967 had
explicitly excluded costs for legal assistance from the types of reimbursable costs.90
In 2004 the Belgian Supreme Court accepted the principle that costs for legal
assistance could form part of the damage in a contractual liability claim, provided
that such costs were necessary to bring the case.91 Later on, this case law was
extended to non-contractual liability claims.92
The application of a fault liability regime to the reimbursement of costs for legal
assistance was not without problems. First, the regime could only find application
when a claim concerned an issue of fault liability.93 Other areas were thus excluded
from the possibility to recover fees for legal assistance, for example litigation in
fiscal, social or family matters. Second, the application of a fault liability regime
created a problem of procedural equality between the parties to the proceedings. An
applicant party claiming damages could have the costs for legal assistance reim-
bursed by including these as part of the damage. A defendant party, however, did
not incur any damage as such and therefore had no basis to seek reimbursement of
costs incurred for legal assistance in case his defence would be successful.

86
Request for a preliminary ruling from the Justice of the Peace of Antwerp (Belgium) lodged on
14 March 2016, Karel de Grote, C-147/16, O.J. 2016, C 211/28, pending.
87
Opinion of Advocate General Sharpston of 30 November 2017, Karel de Grote, C-147/16, EU:
C:2017:928, point 36.
88
See supra, note 61.
89
In a decision of 17 May 2018, the Court of Justice decided that the Belgian judge is obliged to
apply the UCTD in default proceedings on the basis of the principle of equivalence. See Judgment
of 17 May 2018, Karel de Grote, C-147/16,EU:C:2018:320.
90
De Temmerman 2003, pp. 1015–1023.
91
Belgian Supreme Court 2 September 2004, Journal des Tribunaux 2004, 684.
92
Belgian Supreme Court 16 November 2006, Journal des Tribunaux 2007, 14.
93
Tack 2005, pp. 1302–1303.
16 J. T. Nowak

Reimbursement of costs for legal assistance was only possible when he could prove
that the initiation of legal proceedings by the applicant party constituted a fault in
itself. Such requirement made it extremely difficult for a prevailing defendant to
recover costs for legal assistance and created an imbalance in judicial proceedings
between an applicant and a defendant, contrary to the principle of the equality of
arms.94 Third, the necessity criterion was subject to various interpretations of lower
courts, creating uncertainty regarding the types of costs for legal assistance that
could be claimed for and to which extent.95 In 2007, a Law and a Royal Decree
were adopted to regulate the recoverability of fees for legal representation.96 The
regime for party-appointed experts remained, however, subject to a fault liability
regime.97
The issue came to the Court of Justice in the context of a dispute concerning the
taxation of costs in patent litigation.98 United Video Properties (UVP) had filed for
an injunction against Telenet to cease all direct and indirect infringements of its
European patent for providing storage of data on servers in an on-demand media
delivery system.99 The president of the Antwerp Commercial Court dismissed the
claim, holding that UVP’s patent failed to meet the condition of novelty. It also
admitted Telenet’s counterclaim to invalidate the Belgian part of the European
Patent.100 UVP appealed the decision before the Antwerp Court of Appeal. At the
same time, proceedings were pending between UVP and Virgin media in the UK
courts concerning the same patent. When the London High Court of Justice also
ruled that UVP’s patent failed to meet the requirement of novelty, UVP discon-
tinued its appeal before the Antwerp Court of Appeal.101 Telenet asked the Court of
Appeal to order UVP to reimburse costs for legal assistance and claimed inter alia
44.400 EUR for special technical assistance in the field of patents.102
It should be pointed out that Telenet was the defendant in the case. This meant
that it had to prove that UVP had made a fault in bringing proceedings against it,
which proved to be a high threshold. Telenet considered this requirement to be
contrary to Article 14 IPED,103 which provides that

94
Belgian Constitutional Court of 19 April 2006, N° 57/2006, B.5.1 (available from http://www.
const-court.be/public/n/2006/2006-057n.pdf).
95
Tack 2005, pp. 1307–1308.
96
Law of 21 April 2007 on the recovery of honorary fees and costs connected to assistance by a
lawyer (Loi relative à la répétibilité des honoraires et des frais d’avocat), Belgian State Gazette 31
May 2007, 29541; Royal Decree of 26 October 2007, Belgian State Gazette 9 November 2007,
56834. For an overview, see van Drooghenbroeck and De Coninck 2008.
97
Van Drooghenbroeck and De Coninck 2008, p. 51.
98
Judgment of 28 July 2016, United Video Properties, C-57/15, EU:C:2016:611.
99
United Video Properties, para 14.
100
United Video Properties, para 15.
101
United Video Properties, para 16.
102
United Video Properties, para 16.
103
Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the
enforcement of intellectual property rights, OJ 2004, L 157/45 (corrigendum OJ 2004, L 195/16).
1 Considerations on the Impact of EU Law … 17

Member States shall ensure that reasonable and proportionate legal costs and other
expenses incurred by the successful party shall, as a general rule, be borne by the unsuc-
cessful party, unless equity does not allow this.

It argued that the IPED did not require fault liability as a precondition for the
reimbursement of fees for technical assistance by an expert.104
The Court of Justice held that costs of a technical adviser can in principle be
considered to be part of the concept of ‘other expenses’ within the meaning of
Article 14 IPED.105 However, it made a distinction between costs of identification
and research incurred for the purposes of detection of potential infringements of IP
rights on the one hand and costs necessary for bringing successful judicial pro-
ceedings on the other hand. Only the latter can be considered to be part of ‘other
expenses’ within the meaning of Article 14 Directive.106 The costs for identification
and research are typically of a general nature and cannot be considered to be closely
and directly linked to judicial proceedings.107 Such costs may, however, be part of a
damages claim in line with Article 13 Directive.108 Having established which costs
are part of the ‘other expenses’ a successful party can claim reimbursement for, the
Court moved on to decide that Article 14 IPED does not include a condition of fault
on the part of the unsuccessful party for reimbursement of such costs.109
In a judgment of 8 May 2017, the Antwerp Court of Appeal applied the judg-
ment of the Court of Justice in a parallel case between United Video Properties and
Telenet.110 In this case, Telenet claimed inter alia reimbursement of 63.804,25
EUR for expert fees. Telenet had raised similar arguments regarding the application
of the national legal framework in light of the IPED.
It should be recalled that the reimbursement regime based on fault liability is a
judicial construction that can be discarded rather easily. The national law merely
prescribes that a party who discontinues the proceedings is obliged to pay for the
costs incurred by the other party111 and that an unsuccessful party will be required
to pay the costs.112 The Judicial Code lists a number of costs to this extent, but not
in an exhaustive way.113 While costs for party-appointed experts are not included in
the list of reimbursable costs, it appears that the national legal framework can be
interpreted in conformity with the Directive, regardless of the original intent of the
legislator. This is also the line of reasoning followed by the Antwerp Court of
Appeal. The Court of Appeal stated that the existing legal framework did not object

104
United Video Properties, para 18.
105
United Video Properties, para 34.
106
United Video Properties, para 36.
107
United Video Properties, para 35.
108
United Video Properties, para 36.
109
United Video Properties, para 37.
110
Court of Appeal Antwerp, 8 May 2017, unreported.
111
Article 827 JC.
112
Article 1017 JC.
113
Article 1018 JC.
18 J. T. Nowak

to the award of costs for technical assistance in favour of Telenet. Also, since UVP
had not raised any objections to the cost of technical assistance, the Court of Appeal
decided that it could be assumed that all the costs claimed were directly and closely
linked to the proceedings, sparing the Court of Appeal the assessment of the nature
of the costs claimed for by Telenet. Telenet was awarded 63.804,25 EUR.

1.3.1.4 A Number of Brief Considerations Regarding the Influence

of EU Case Law

These two examples on the interaction between EU law and national civil procedure
allow for a number of brief considerations.
First, the Court’s decisions will be relevant for the internal Belgian debate
regarding the ex officio powers of judges in default proceedings and the reim-
bursement of expert fees. It is very likely that the solutions provided for in the case
law of the Court will inform a future procedural framework encompassing both EU
law and purely national law cases. Why allow a judge sitting in default proceedings
only to apply ex officio EU consumer law and not national consumer law, or any
other area of law? That will be a tough question to answer. The same goes for the
regime applicable to the reimbursement of expert fees. The decision by the Antwerp
Court of Appeal implies that the rules regarding the reimbursement of fees for
party-appointed experts have now been changed for litigation falling within the
scope of the IPED. The question is whether the Belgian courts will henceforth
maintain a separate regime for IP litigation or whether the ruling of the Court of
Justice will also create effects in other areas of law. Also, will the legislator react? It
is instructive in this regard to refer to the preparatory works of the Belgian legislator
on the implementation of the IPED. During the debate a number of procedural
issues were raised that required particular attention in light of the IPED: the
reimbursement of lawyers’ fees and the protection of confidential evidence. The
legislator did, however, not act upon these issues in the context of the transposition
of the IPED because it preferred a horizontal approach, regulating the matter for the
whole of civil procedure instead of providing a separate regime for IP litigation.114
In regard of the reimbursement of lawyers’ fees, a law was enacted shortly later
regulating the matter for the whole of civil litigation.115 When the legislator’s
preference for a horizontal approach would equally find application regarding the
issue of the reimbursement of party-appointed experts, which is a credible
assumption in light of how it addressed the reimbursement of lawyers’ fees, the
judgment of the Court of Justice may have consequences far beyond the scope of
the IPED and EU law. Indeed, when remaining faithful to its horizontal approach to
the regulation of civil procedure, the Belgian legislator would effectively have to

114
Chamber of Representatives 2006–2007, Preparatory Works N° 2943/001, p. 18.
115
Van Drooghenbroeck and De Coninck 2008, pp. 37–60.
1 Considerations on the Impact of EU Law … 19

incorporate the standard laid down in the Telenet judgment in its rules on the
reimbursement of party-appointed experts.
Second, the discussion regarding the ex officio application of the UCTD and the
recent amendments to default proceedings in Belgium demonstrate the relevance of
EU law for civil procedure reforms in the Member States. A problem may thus arise
where a national legislator fails to take into account the EU law dimension when
enacting rules on national civil procedure. The Belgian case is a clear illustration of
ignorance or negligence on part of the legislator, the amendment solely focusing on
the national debate on default proceedings.116 A national legislator can, however,
not ignore the EU law dimension and should assess on any occasion the potential
EU law impact. Rules of civil procedure are not solely concerned with the appli-
cation of national law.
The failure to take the EU law dimension into account should neither be con-
sidered to be an unfortunate oversight. It leads to the obstruction of an important
EU policy priority, making the State susceptible to infringement proceedings by the
European Commission. It may also strengthen the case for EU action in matters of
civil procedure. In the end, a legislator that is not willing to take into account the
EU law dimension in the context of civil procedure may risk losing its power to
regulate all together.

1.3.2 EU Rules on Civil Procedure

1.3.2.1 Introduction

The focus of the European Commission in a number of policy areas has recently
shifted from substantive regulation to enforcement. A good example is the field of
consumer protection law. The 2017 Report on the Fitness Check of consumer and
marketing law states that the existing body of substantive consumer law is largely
sufficient but that major challenges exist when it comes to enforcement.117 An
important part of the imminent consumer law reform will therefore concern rules on
the enforcement of substantive consumer law.118
The suggested policy options in the Report on the Fitness Check seem to focus
on private enforcement, which is in line with the general approach the European
Commission takes in consumer law matters.119 Potential initiatives will focus on
improving access to redress by consumers, both individually and collectively.120 To

116
Justice of the Peace Westerlo, 2 March 2016, Rechtskundig Weekblad 2016–2017, 273.
117
European Commission, Report on the Fitness Check on various consumer law directives, SWD
(2017) 209 final, p. 76 (hereafter ‘Report on the Fitness Check’).
118
Report on the Fitness Check, p. 85.
119
Wilman 2015, p. 417.
120
Report on the Fitness Check, p. 77.
20 J. T. Nowak

name a few: individual EU-wide rights to remedies to challenge violations of the

Unfair Commercial Practices Directive,121 guidance regarding the ex officio appli-
cation of the UCTD122 and adaptations to the Injunctions Directive.123 Civil pro-
cedure laws of the Member States may thus be affected.124
The policy choice for private enforcement has an important impact on national
civil procedure, for enforcement by private parties will largely take place before
civil courts through damages actions, injunctions or contractual remedies. Further to
this, a trend of private enforcement is not only present in consumer law.125 The
same goes for discrimination law126 or competition law.127 It can thus be expected
that this general trend will entail further consequences for Member State civil
procedure in the future.
In the next two subheadings I will illustrate the implications of the trend towards
regulating enforcement by briefly analysing the impact of the Private Damages Directive
and the Trade Secrets Directive in the Belgian legal order on a number of points.

1.3.2.2 Private Damages Directive

General

On 26 November 2014, the Council and the European Parliament adopted a

directive regulating certain aspects of private damages claims for violations of EU
and national competition law.128 The Private Damages Directive (hereafter ‘PDD’)
has multiple aims: allowing victims of competition law infringements to seek
damages, providing a credible private enforcement complement to public
enforcement and to create extra dissuasive effect vis-à-vis potential infringers.129
The directive entered into force in 2014130 with a deadline for transposition by the
end of 2016.131 It harmonises a number of important issues regarding damages
actions for competition law infringements. The directive does, however, not

121
Report on the Fitness Check, p. 77.
122
Report on the Fitness Check, p. 77.
123
Report on the Fitness Check, p. 78.
124
On 11 April 2018, the European Commission adopted a proposal for a directive on a consumer
collective redress mechanism. This would introduce a collective redress mechanism in all EU
Member States if adopted by the EU legislator. See COM(2018) 184 final.
125
Jauering and Hess 2011, p. 3.
126
Kilpatrick 2001, p. 147.
127
Wilman 2015, pp. 202–220.
128
Directive 2010/104/EU of the European Parliament and of the Council of 26 November 2014
on certain rules governing actions for damages under national law for infringements of the
competition law provisions of the Member States and of the European Union, O.J. 2014, L 349/1.
129
Recitals 5 and 6 PDD.
130
Article 23 PDD.
131
Article 21 PDD.
1 Considerations on the Impact of EU Law … 21

introduce the remedy as such in the EU Member States. The Court of Justice had
already decided in 2001 that such actions must be available in all Member States.132
The PDD contains a number of procedural provisions that allow for the proper
functioning of a private damages action in the field of competition law. It lays down a
principle of full compensation133 and deals notably with disclosure of evidence and
the powers of national courts to order such disclosure,134 the effects of decisions of
(foreign) competition authorities and foreign courts in national court proceedings,135
limitation periods,136 and rules on the effect of consensual dispute resolution on court
proceedings.137 Further to this, it regulates issues of joined and several liability,138
the passing-on defence,139 the rights of indirect purchasers,140 the possibility of a
multitude of claims,141 and the quantification of harm.142 In regard of this last issue
the directive lays down a rebuttable presumption that cartel infringements cause
harm.143 Lastly, it should be pointed out that the directive also applies to national
competition law where this is applied in parallel to EU competition law.144

Impact in Belgium

The directive was implemented by a law of 6 June 2017, which entered into force
on 22 June 2017.145 It is worth noting that the relevant procedural provisions have
not been inserted in the Judicial Code but in a separate Title of Book XVII of the
Code of Economic Law.146 The impact on Belgian procedural law has multiple
aspects. I will focus on the rules of prescription and the presumption of harm.

132
Judgment of 20 September 2001, Courage and Crehan, C-453/99, EU:C:2001:465, para 26.
133
Article 3 PDD.
134
Articles 6–8 PDD.
135
Article 9 PDD.
136
Article 10 PDD.
137
Articles 18–19 PDD.
138
Article 11 PDD.
139
Articles 12–13 PDD.
140
Article 14 PDD.
141
Article 15 PDD.
142
Article 17 PDD.
143
Article 17(2) PDD.
144
Recital 9 and Article 2(1) PDD.
145
Law of 6 June 2017 on the insertion of Title 3 “The claim for damages for violations of
competition law” in Book XVII of the Code of Economic Law, on the insertion of definitions
proper to Book XVII, Title 3 in Book I, and on various amendments of the Code of Economic
Law, Belgian State Gazette 12 June 2017, p. 63596 (available online from http://www.ejustice.
just.fgov.be/eli/loi/2017/06/06/2017012339/moniteur).
146
The Code of Economic Law gradually entered progressively into force from 31 May 2014
onwards. It encompasses 18 books regulating various aspects of the economic life, from consumer
law to competition law and IP law.
22 J. T. Nowak

Rules on Prescription
The directive had already a first impact in the Belgian legal order during the
deadline for transposition, namely regarding the point of departure of the limitation
period for damages actions.
A first instance judge confronted with a private damages claim of an undertaking
against a competitor on account of a violation of competition law referred a pre-
liminary question to the Belgian Constitutional Court on the application of the rule
contained in Article 2262bis, § 1(2) Civil Code.147 That provision states that a
claim for damages on the basis of extra-contractual liability is prescribed five years
from the day following the day on which the victim gained knowledge of the
damage or its increase, and of the identity of the responsible person. It should be
pointed out that in the case at hand an investigation was taking place by the Belgian
competition authorities into the violation of the rules on competition. However, due
to the length of the administrative investigation by the competition authorities it
was unlikely that the final decision could be used as evidence in the damages
action. The referring court asked the Belgian Constitutional Court whether it was
compatible with the Constitution that an investigation of the competition authorities
did not lead to a suspension or interruption of the limitation period for bringing a
damages action.
In its reasoning, the Constitutional Court paid particular attention to the difficult
position in which private parties find themselves when seeking to prove a violation
of competition law. It expressly referred to the need for a complex factual and
economic analysis and the fact that the required evidence is often not publicly
available.148 The standard of evidence required would thus make it very difficult for
private parties to meet the burden of proof. That is, however, less the case for the
competition authorities, according to the Constitutional Court. They have the
necessary means and extensive powers of investigation to obtain the required
evidence.149 The Constitutional Court appreciated this reality and appears to have
inferred from this that parties in competition damages claims will often have to rely
on an administrative decision of a competition authority to establish a violation of
competition law.150
The applicable rules on prescription, however, did not necessarily allow this.
Moreover, the absence of a suspension or an interruption of the limitation period
pending the outcome of administrative proceedings would force a party to start civil
proceedings in order to safeguard its claim, even before a violation of competition
law would be established by the competition authorities. Such uncertainty would
entail a serious risk for that party, as it may be exposed to costs in case the
authorities would in the end not establish a violation of competition law or would

147
Belgian Constitutional Court 10 March 2016, N° 38/2016 (available online from http://www.
const-court.be/public/n/2016/2016-038n.pdf).
148
Belgian Constitutional Court 10 March 2016, N° 38/2016, B.9.
149
Belgian Constitutional Court 10 March 2016, N° 38/2016, B.9.
150
Belgian Constitutional Court 10 March 2016, N° 38/2016, B.12.
1 Considerations on the Impact of EU Law … 23

only establish a violation after the damages action has been concluded.151 The
Constitutional Court considered this to be a serious impediment to exercise of the
right to damages for violations of competition law. Consequently, it concluded that
the lack of suspension or interruption of the limitation period pending the outcome
of the investigation of the competition authorities is contrary to the Constitution.152
The Constitutional Court only refers in a subsidiary manner to the Private
Damages Directive, underlining that the outcome of its decision is also envisaged in
the directive.153 The decision appears thus to be primarily based on Belgian con-
stitutional law. However, a closer look at the reasoning of the Constitutional Court
suggests that the PDD had a much greater influence on the decision than what
appears from the judgment. The reasoning regarding the problems faced by an
applicant in proving a competition law infringement corresponds almost literally to
the text of the PDD, especially recital 14 PDD. The Constitutional Court equally
subscribes to the view expressed in recital 26 PDD, that competition damages claims
are essentially follow-up actions. Moreover, the decision of the Constitutional Court
corresponds almost exactly to the rule laid down in Article 10(4) PDD, namely that:
Member States shall ensure that a limitation period is suspended or, depending on national
law, interrupted, if a competition authority takes action for the purpose of the investigation
or its proceedings in respect of an infringement of competition law to which the action for
damages relates. The suspension shall end at the earliest one year after the infringement
decision has become final or after the proceedings are otherwise terminated.154

The striking similarities make it difficult to maintain that the judgment was only
based on Belgian constitutional law. The fact that the implementation period of the
PDD had not elapsed at the time of the judgment, as well as the fact that the actual
case dated from before the adoption of the PDD may explain why the Constitutional
Court only made a minimal reference to the PDD.
It is interesting to compare the approach taken by the Belgian Constitutional
Court to that of the Italian Supreme Court. In its judgment of 4 June 2015, the latter
quashed a decision of the Rome Court of Appeal for a failure to interpret the rules
on evidence in line with the principle of effective judicial protection.155 The Italian
Supreme Court reasoned that follow-up actions for private damages would be
deprived of their effectiveness if the ordinary rules on the burden of proof were
followed, given the difficulties for private parties to obtain the required proof.
The case concerned the issue of information asymmetry between the applicant and
the defendant and the powers of courts to overcome such asymmetry. It should be

151
Belgian Constitutional Court 10 March 2016, N° 38/2016, B.13.
152
Belgian Constitutional Court 10 March 2016, N° 38/2016, B.14. For a similar problem in
the German legal order, see Federal Court of Justice (BGH), judgment of 12 June 2018, KZR
56/16 – Grauzementkartell II.
153
Belgian Constitutional Court 10 March 2016, N° 38/2016, B.12.
154
With the entry into force of the Belgian law implementing the Private Damages Directive, such
an interruption can now also be found in Article XVII.90 Code of Economic Law.
155
Italian Supreme Court, N° 11564/2015, 4 June 2015, IT:CASS:2015:11564CIV.
 Another Random Document on
Scribd Without Any Related Topics
 Var 4 15. The Swati- drop and an Oyster 1. A tiny Swati-
drop of rain, falls from high in the sky. 2. Seeing the vast ocean,
forgets its self and falls in the mouth of an oyster. 3. Impregnated
with Swati-drop, the oyster closes its mouth and dives down to hide
itself under a stone. 4. The deep divers dive in the ocean and bring
out the oyster. In fact the oyster invites the diver to pick it and take
it away. 5. Having fallen into other's hand for benevolent cause, it
has itself broken on a stone. 6. Knowingly or unknowingly, the oyster
provides the pearl in charity and never regrets. 7. A rare person gets
such a blessed and gainful life.(15) In Essence A raindrop descended
from the sky very proudly. But on seeing the vastness of the ocean,
it realizes that its existence is insignificant. Feeling humble it likes to
merge in the ocean and instead falls on the oyster to become a pearl
which is retrieved by a diver who takes it to the king to adore his
embellishments. Thus to achieve an adorable and valuable status,
one has to shed one's pride and become humble. Page 270
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Varan Bbai Gurdas Jl ZfJ% *fllT %T^H cT^t »^ Ufe 7>tt I

3. fptt H^rfe gjFfo iftt i 8. h?> frrfe- vr?> % H7> di f. taf ton Sikkh
Guru da tnel) 1. Hire hira bedhiai barme kani ani hoe ntrai. 3. Sddh
sangatC i) guri u) sabad liu haumai mar( i) marai rrianC u) dhirai. 4.
Man jin( i) man( u) de lae man(u) gun(i) vich(i)gungurmukh( i)
sarirai, 5. Pain pai pakhak(u) hoe kamdhen(u) saritren(u) na nirai. 6.
Sila alilni cbatni lakh anmrit ras tarsan sirai. Page 271
 r 275^ 16. Diamond Bit and Union of a Sikh with His Guru
1. A driller fixed with a diamond bit is used for drilling a hole in a
diamond . (Obvious reference is to Guru who is the diamond bit and
a Sikh who is a raw diamond). 2. In the love-like thread, the
diamonds are stringed to form a beautiful necklace. 3. Such a
diamond-like Sikh overcomes the powerful impulges of his mind
through holy congregation and follows Guru's words. 4. Surrendering
his mind to the Guru and taking his advice, he is able to conquer his
mind gradually. The traits so acquired reside in the body of the holy
people. 5. Becoming the dust of saints feet, he should take their
refuge. The refuge of pious and beloved devotees of the Lord is far
more blesser than the celestial cow (Kamdhenu). of stone-like
service of the Gurmukhs. 7. A rare person listens and abides by the
teachings of holy and pious persons. (16) In Essence This pauri
explains the line : Gur plran ki chakarl mabari kar-n sukh sar(u).
(SGGS, p. 1422) One has to serve diligently and faithfully - a task
that is without charm and attraction. Only then can one be blessed
with goodness of life. Page 272
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 Var4 17. Conduct of a Here and Now Liberated One 1.
Listening to the teachings of his Guru, a Sikh of the Guru becomes
wise inwardly and a simpleton outwardly. 2. "With his consciousness
engrossed in the divine word, he hears nothing else. 3. He beholds
the True Guru all around and other than the holy congregation, he
sees nothing else. He is a blind and deaf for all other things. 4.
Having received the incantation of lWaheguru\ he drinks deep its
elixir all by himself. 5. He considers himself no better than the holy
dust of the feet of pious people (an act of humility) and drinks their
foot-wash. 6. Keeping his mind like a bumble-bee on the lotus-feet
of his Guru, he remains dross free of the worldly things. 7. Such a
life of a Sikh (who is liberated here and now) is successful.(17) A
Sikh must have his mind engrossed in the divine word, live a simple
life and be engrossed in the meditation of Lord's name in a holy
congregation. He should remain humble, serve the holy and pious
persons and behold the presence of Lord in all of them. Page 274
 1. fT^MnfOT^tfelTTITO^^^I % Btez T^fet w ?fe w w i 8.
"Deft 0 Wc[ ufe W Hfddld ?&fz feU'ft I £. feoff cfJB" fiTOt Tjfe cJTcT
fatf W I ton fawsmtii IS (T«/ da drishtant) 1 . Sir(i) vich(i) nike val
hoesadh charan chavarkar(i) dhaiai. 2. Gursartlrath naekai anjhu
bhar(i) bhar(i) pair pakhalai. 3. Kali bun dhaule kare chalan(u) jan(i)
nisdn(u) samhalai, 4. Pairi pai pakhak hoe pura sat(i)guriu) nadard)
nihalai. 5. Kag kumantohn param haris(u) ujal moti khae khavalai. 6.
Valoh niki dkhiai gur sikhi sun(i) gur sikb palai. 7. Gur sikh langhai
piram pialai.(18) Page 275
 Mr 4 18. Paradigm of a Hair 1. Hair of the head are very
thin. Preparing fly-whisk of them, one should dust the feet of pious
people. (Some opine that one should start learning to love the Lord
from childhood). 2. When one grows up, one should bathe at the
Guru-like pilgrimage centre and wash the holy feet of the Guru with
the tears of one's eyes. (He should be deeply in love with the Guru).
3. When the black hair start turning grey, consider that the time of
departure from this world is approaching. 4. Be in the refuge of the
Guru and become dust of his holy feet. The True Guru would then
bless him. 5. He should turn his crow-like mind into a white swan
and relish the pearls of virtuous traits beside sharing them with
others. 6. Guru's teachings are very subtle. Hear them and obey
them diligently. 7. A Sikh of the Guru sails across the worldly ocean
with love and devotion.(18) In Essence Serving Sadh Sangat and
cleaning up the mind, abiding by the teachings of the Guru and love
for Him are the true paths of emancipation. Page 276
 1 i irw ^fn wfcrz h % ^ i 3. U§H TTfe H wfs fH^'d IRtfll
25). (GiiUar da drishtant) 1. Gular andar(i) bhunhana gular non
brahmand vakhanai. 2. Gular lagan(i) lakh phal ikdu lakh alakh na
jdnai. 3. Lakh lakh birakh bagichiauh lakh bagiche bag vakhanai. 4.
Lakh bag brahmand vich(i) lakh brahmand luna vich(i) anai. 5.
Miharkare je mihawan gurmukh(i) sadhsangat(i) rang(u) manai. 6.
Pain pai pakhak(u) hoe sahib(u) de chalai oh(u) bhanai. 7. Haumai
jae ta jae sinanai.(19) Page 277
 19. Example of a Fig Tree 1. To an insect inside a fig tree,
the environments appear like Universe. 2. One tree bears countless
fruits. Each fruit has ability to bear countless trees further. Thus it
remains beyond measure. 3. Each orchard has large number of trees
and many orchards constitute a garden. 4. There are millions of
cosmos and everyone has millions of such orchards (Universes).
Countless Universes are existing in every trichome of the Lord. 5.
Whosoever receives the grace of the Lord, enjoys the divine bliss in
the congregation of holy and pious souls. 6. Such a person then
becomes humble like the dust of their lotus-feet and live life
according to the will and command of God. 7. And when attachment
and infatuations vanquish, one recognises one's true self. (19) In
Essence In a body form, a human being thinks himself to be the
cosmos but he does not understand that on this tree-like Earth,
there are millions of fruits like him. Then in the orchard of this Sun,
there are several Earths like ours. Then there are numerous Suns in
the constellation of bigger Suns, and further, there are many more,
uncountable that support several Earths. In short, His creation is
infinite and a small mosquito like me is most insignificant and not
even noticeable. So, one should consider oneself too insignificant in
the vastness of His creation. One should live in His command and
will. Thus will vanish one's ego. And when the ego is destroyed, one
will realise God and the true knowledege that will put one in eternal
peace. Page 278
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3377 >tffHoF! ore »f§^T ^'HHW HfeoTIROll 20. (Duj de chahd thoh
updesh) 1. Due dih(i) chand(u) alop(u) hoe tlai dih chardd hoe nikd.
2. U(h( i) utb(i) jagat(u) juhdrdd gagan mahesur mastak tikd. 3.
Solah kald sanghdriai saphal janam(u) sohai kal ikd. 5. Sital sdnt(i)
santokh de-e sahaj sahjogl ratan amikd, 6. Kare anheroh chdnnd dor
chakordhidn(u) dbar(i) chhikd, 7. Ap gavde amol manika.(20) Page
279
 Var4 20. Paradigm of Second Day Waxing Moon 1. After
remaining invisible for two days (on the new Moon and first day)
Moon appears barely visible on the third day. 2. The whole world
bow their head to it as if it is a consecration mark on sky-like god
Shiva's head. 3. Remaining radiant for sixteen days, it begins to
wane and it is in similar position as it was on the first day of waxing
moon. 4. It sprinkles its ambrosial rays on the thirsty trees and fields
(injecting a new life in them). 5. It bestows them with calmness,
peace and contentment. Reaching a state of equipoise is an
invaluable jewel. 6. It provides light in the darkness. The allectoris
graeca (Chakor) remains tied to the moon with the thread of love. 7.
A jewel becomes invaluable only after it had lost of its self.(20) In
Essence Humility is a great boon that provides much love and
respect to a person. Egoistic persons are ever at a loss to enjoy the
divine pleasures that Lord bestows upon the humbles. Page 280
 % Ufe few oTfe sfdlfd cMHftf XT ufo t^dHrt ^feWi 8. #e
Frarr hbIh ontfe we^f^ tjQifd Wwi 2/. (Dhru bhagat da drishtdnt) 1
. Hoe nimand kar( i) bhagat(i) gurmukhC i) dhru har( i) darsan(u)
paid. 2. Bhagat(i) vachhal(u) hoe bheiia mdn(a) nimane ap(u) divaia.
3. Mat lok vich(i) mukt(i) kaKi) nibchal(u) vas(u) agas(i) charaia. 5.
Ved purdn vakhande pargat kar(i) ■ partap(u) janaia. 6. Abigat(i)
gat(i) at(i) agam hai akath katba vichar(u) na aid. 7. Gurmukh(i)
sukh phal alakh lakhaid.(21A) Page 281
 Var 4 21. Dhru - The Devotee Ultimate 1. DhrO worshipped
Him with humility and becoming virtuous was blessed with His
realisation. 2. (The lover of His devotees) God Himself blessed the
humble with respect and honour and He united him with Himself. 3.
He was emancipated during his life-time and, blessed him with
eternity by granting him a permanent and an unshakabke place in
the sky (like a shining jewel). 4. The Moon, the Sun and thirty-three
crore (330 million) gods were made to circumambulate him. 5 .
Vedas and Puranas state that by making him conspicuous, God has
displayed His glory and grandeur. 6. But Lord and His deeds are
beyond comprehension, accessibility, description and contemplation.
7. But He discloses His indescribable side to the virtuous and Guru-
oriented souls. (2 1.4) In Essence Humble Dhru achieved salvation
with his humility, devotional love and meditation. According to
Puranic tales, his glory was established by giving him an eternal
position in the Northern sky that all the stars circumambulate it
whereas it remains stable. Taking the paradigm of Dhru, Bhai Sahib
advises us to be virtuous and Guru-oriented. God is
incomprehensible. Only a virtuous person is blessed by Him with His
knowledge that helps them realise His Vastness. The following lines
of Gurbanl are ample proof of how God treats His devotees : Hatii) Ji
eh ten vaciial, Bhagta kl paij rakh( u) tu suami, bhagat ten sartiai.
(SGGS, p. 637) Page 282
 3. cpvrfV >h^?i ffe c^t K^raj hto i i. (Gurniukhah de
Lacbhan) 1. GurmukhC i) hovai sadh sang(u) horal(u) sangC 0
kusangd) na rachai. 2. Gurmukh(i) panth(u) suhelara barah panth na
khechal khachai. 3. GurmukhC i) varan avaran hoe rang surang(u)
tanhol parchai. 4. GurmukhO) darsanC it) dekhana chhia darsan
parsan na sarchai. 5. GurmukhO) nihchal mat(i) hai dilje bhae
lubhae na pachai. 6. GurmukhO) sabad(u) kamavana pairipai
rahras(i) na hachai. 7. GurmukhC i) bhae bhagatC i) chahmachai. CD
Page 283
 Var5 1. Attributes of Gurmukhs 1. One becomes a Gurmukh
in the congregation of pious people. He does not keep company of
evil-doers. 2. The way of life of Gurmukhs is praiseworthy. They are
not engrossed in the inconveniencies of the twelve paths of the
Yogis. 3. Whether he belongs to high or low caste, a Gurmukh
merges in the True congregation like a betel leaf, nut, lime and
catechu become one in the red colour that is formed ultimately. 4.
Those who have beheld a glimpse of Gurmukhs, are free from the
entanglement of six schools of Indian philosophy. 5. Gurmukhs have
steadfast wisdom and are not caught in duality (other love). 6.
Those Gurmukhs who have practiced Guru's teachings never shy
away from humilty and conduct themselves befitting Gurmukhs. 7.
Gurmukhs are ever absorbed in the loving worship of the Lord.(l) In
Essence Prayers with devotion, attending holy congregation, striving
to achieve integration with Lord, holding their discriminatory wisdom
above other philosophies, humility and love are the attributes of a
Gurmukh person. Perpetual meditation gives them the strength to
face and accept unbearable situations with elan and courage. Page
284
 Varan Bbai Gurdas Jl 3. ^ WS^" q. grayftf »ry di^'fynr step
Hcrf? ?> hthh i 3. >f%T cTfe H^T f5* fef^7 HT^ ft^i M. aravjfa
h^1" crra- far ^re faf vr 2. (Gurmukhah de Lachhan) 1. Gurmukhd)
ik(u) aradhana ik(u) man hoe na 2. Gurmukhd) ap(u) gavaia jivan(u)
mukl(i) na tamos pita. 3. Gur updes aves kar(i) san(u) dutan tHkhfa
gatiu) jitd. 4. Pain pai pakhak(u) hoe pdhunara jag(i) hoe athitd. 5.
Gurmukhd) seva gur sikhd gur stkb ma pio bhai mita. 6. Durmat( i)
dubidhd duK 0 kar( Qgurmatd) sabadsuratd) man sita. 7. Chha4d)
Page 285
 5 2. Attributes 1. Gurmnkhs worship God with singular
mind. They are never double-minded. 2. They leave their self-
assertion. They are liberated now and here. They never have
pessimism or fear of failure in their heart. 3. Obeying and abiding by
Guru's teachings, they win over the evil effects of five vices
perpetually residing in a body. They win over all their desires. 4.
Considering themselves lowly and dust of the holy feet of pious
souls, they consider themselves guest in this world and so become
much respected and loved by the 5. Gurmukhs serve the Sikhs of
Guru. They treat them like their mother, father, brothers and friends.
6. They have shelved their base wisdom and duality. Obtaining the
sermons from Guru, they have strung their mind in the knowledge
and contemplation of the Shabad. 7. They have discarded falsehood,
evil deeds and thoughts from their lives.(2) In Essence Leaving their
own fixations and obstinacy, a Gurmukh remains happy in the Will of
God. They are devoted followers and worshippers. Having overcome
their sensual pleasures, they are humble, practitioners of Shabad,
lover of their holy companions and carry loving and world. CSGGS, p.
1426) Page 286
 Varan Bhai Gurdas Ji % wxi w*£ few wfa w?7 p* W?7 W I
8. 3. H1^ 3. fGwr Sikh Saihcharian da drishtiint) 1. Apne apne varan
vich chard) charan kul dharan dharande. 2. Chhia darsan chhia
sastrdgurgurmat(i) khat(u) karam karande. 3. Apne apne sdhibai
cbakar jae juhar jurande. 4. Apne apne vanaj vich(i) vapari vapar
rachande. 5. Apne apne khet vicb(i) bio sabhai kirsdn(i) bijande. 6.
Karigar(i) karigaran kdr(i)khdne 7. Sddh sangat(i) gur sikh
pujande.G) Page 287
 v'ar5 rggn 3. A Paradigm - Congregation of Guru's Sikhs 1.
People of each section of society adopt way of life as followed in
their dynasty and defined for them. 2. Accepting the teachings of six
philosophies and as recorded in their six tomes, they perform six
types of rituals, (i.e., Jap, Horn, Saridhya, Snan, Atlthi puja, Dev3.
They all go to their masters and engross themselves in their service.
4. Those in trading business engross themselves in buying and
selling goods. 5. The farmers plough their fields and sow seeds in
them. 6. And the skilled artisans go and join other workers in
factory/workshops. 7. So do the Sikhs of the Guru reach the holy
congregation.(3) indulge in their livelihood, so do the virtuous join
the holy congregation. Page 288
 8. HHorfbtf1" f>ffo HHoft BUT^ W §>Ffzr fHW^i M. H^f
HTTHTfW B^cT I .9. HHJ Hmfe W to II8II 2. Amli rachan(i) amlta
sophi sopbi mel(u) karahde. 2. Juari juarian vekarmi vekarm
rachande. 3. Chora chord pirhaii (hag (hag mil(i) des (hagande. 4.
Maskarid tnil(i) maskare chugala chugal umah(i) milande. 6.
Dukhiare diikhiarian mil(i) mil apne dukh ruvande. 7. Sadh sangat(i)
gar sikh vasande.(4) Page 289
 Var5 293 es of Some Companions 1. The addicts mix up
with addicts and teetotallers with teetotallers. 2. Gamblers mix with
gamblers and evil-doers enjoy the company of debased people. 3.
Thieves love the company of thieves and cheats join hands to
swindle the country and the people. 4. Jesters enjoy the company of
jesters while slanderers look forward to the company of backbiters.
5. Those who cannot swim find solace in the company of those who
are similarly incapable whereas the swimmers join together and
swim across. They also help others to swim. 6. Those in distress
share their woes with those who themselves are not comfortable in
life. 7. So do the Sikhs live in the company of pious souls.(4) In
Essence Like-minded and similar profession people love and enjoy
each other's company because they share a common interest. But
Gurmukhs keep each other's company on account of love of the Lord
they harbour in their hearts. Page 290
 3. ~M HcF? f f H@0d1 ipnff tWtl 8. w^t wf^tw fsraftr ciwi
M. rFfe HcS' fd HUH fore fedTd offo dld'9 I h^ H3Tfe are fa-fa fafo w
f%H foa-T? i D. HW H^fe fo¥ WW IIM1I 5. f/far Srisbti te
Gurmukban da jar ah) 1. Koi pandit(u) jotiki ko pdndhd ko vaid(u)
sadde. 2. Koi raja rau ko ko tnabita chaudhari akbde. 3. Koi bajajfri)
saraftu) ko ko jauhari jarau jarae. 4. Pdsdri parchunidn koi daldli
kiras(i) kamde. 6. Sadh sangat(i) gur sikb(i) mil(i) asa vich niras
valde. 7. Sabad surat(i) liv alakh(u) lakhae.(5) Page 291
 Var5 5. Difference between Gurmukh and Others 1.
Someone is a scholar (pandit), an astrologer, a priest or a physician.
2. Someone is a king, a chieftain, a treasurer/accountant or a
headman. 3. Someone is a cloth merchant, a goldsmith, a jeweller or
inlayer. 4. Someone is a grocer, a retailer, a broker and earn their
livelihood by their hard work. 5. There are many who do work in
accordance or otherwise of their section and all of them carry
different names. 6. But Guru's Sikhs remain oblivious and divorced
from their desires and spend their life-time absorbed in the
remembrance of God. 7. By engrossing Guru's Shabad in their
consciousness, they realise the unreachable Lord.(5) In Essence Bhai
Sahib has brought a group of similar traders/workers together and
has called them Sahchari i.e. people of similar or identical
profession. They work and expect returns. On the contrary Guru-
oriented people remain oblivious of their desires and find solace in
the remembrance of the Lord. Thus they are free from the yokes of
mammon. Page 292
 *t. TTS\ H3t fe^fe? wfa<5(, fan BTC I for h?7 fc*" ^d'lid1
gj^Kfe >*rj di^'fy p^i 6 {Hot Srishfi te Gurmukhdh dafarak) 1. Jati
sati cbir(u)jwane sadhik, sidb nath gur chele. 2. Devi dev rikhisura
bbairau khetrapal bahu mele. 3. Gan gandharb apacbhara kinnar
jachh chalit bahu khele. 4. Rdkhas ddnon dait lakh andar(i) duja
bhdu duhele. 6. Ik man ik(u) aradhana gurmat(i) ap gavae suhele. 7.
Chalan(u) jan pae sir(i) tele.(6) Page 293
 Var.5 Ml 6. Difference between Gurmukh and Others 1.
There are celibates Qati), chaste (Sati), penance practitioners
(Sidhs) and their leaders, Gurus and their disciples and those who
have extended their life-span. 2. There are gods, goddesses, sages,
worshippers of Shiv, defenders/protectors and fairs of many kinds. 3.
There are celestial minstrels, fairies, and lesser gods capable of
wondrous deeds. 4. There are demons, giants, monsters
innumerable who remain in a state of distress because of duality. 5.
All are entangled in ego but Gurmukhs live and enjoy the relishment
of holy congregations. 6. They worship and remember God with a
singular mind. They have surrendered themselves to the wisdom of
Guru. 7. They are free from the fear of death. And that is the oil that
their head has been massaged with. (A custom followed before
marriage both for the bride and the groom).(6) In Essence In this
Paurl, Bhai Sahib has taken the example of people whose existence
is alike. But the Guru-oriented people are unique in their own way
since they are ever engrossed in the memory of the Lord and they
are ready to be married off (i.e. leave this world as the custom of
marriage) having shed the fear of death and rebirth. Page 294
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