Developments in PIL EU Legislation

European Commission Proposal for a Regulation on Digitalisation of Judicial Cooperation

At the beginning of December 2021 the European Commission launched a new initiative aiming to digitalise cross-border judicial cooperation – the Proposal for a Regulation on Digitalisation of Judicial Cooperation and Access to Justice in Cross-Border Civil, Commercial and Criminal Matters, and Amending Certain Acts in the Field of Judicial Cooperation.

The proposed regulation does not establish new European procedures, but focuses on electronic communication in the context of cross-border judicial cooperation procedures and access to justice in civil, commercial and criminal matters in the EU. With the adoption of this regulation the European legislator seeks to create the necessary legal framework to facilitate electronic communication in the context of the cross-border judicial cooperation procedures in civil, commercial and criminal matters.

The present text follows a proposal from December 2020 for a Regulation on a Computerised System for Communication in Cross-Border Civil and Criminal Proceedings (mentioned earlier in other blogs available here, here, and here) – and two recast regulations from November 2020 – the Service of Documents Regulation and the Taking of Evidence Regulation (see earlier blogposts here and here). The Service of Documents and Taking of Evidence Regulations establish a first comprehensive legal framework for electronic communication between competent authorities in cross-border judicial procedure, and will rely – as the present proposal – on the e-CODEX decentralized IT system to exchange standardized forms, documents, and certifications (more on the e-CODEX decentralized system pilots can be read here, here, and here).

The proposal is based on Articles 81(1) and 82 TFEU and follows an identical approach to the solutions chosen in the recasts of the Service of Documents and Taking of Evidence Regulations for the use of electronic communication means. However, the text of the present proposal will not become applicable in relation to the aforementioned regulations.

The EU Regulations covered by this initiative are listed in two annexes: one concerning legal acts in civil and commercial matters and the other the legal acts in criminal matters (available here).

The present development comes after a number of instruments have been adopted over the years to enhance judicial cooperation and access to justice in cross-border civil, commercial and criminal cases. These instruments had been developed with a paper-based format in mind, an approach followed by most national procedures within the EU. This characteristic of the European instruments and the lack of interconnection of the national electronic systems (where available for judiciaries) meant that national authorities and individuals have not been able to rely extensively on the developments of digital communication or security mechanism offered by electronic documents, signatures and seals in cross-border proceedings. Given this situation, during the COVID-19 pandemic many technical solutions were developed in an ad-hoc manner to limit disruption of justice services and judicial cooperation. However, such solutions may not always satisfy the highest level of security and guarantee of fundamental rights.

For this reason further steps were considered necessary by the European legislator. Rules on digitalisation are becoming desirable to improve access to justice as well as the efficiency and resilience of the communication flows inherent to the cooperation between judiciaries and other competent authorities in EU cross-border cases. The pandemic increased consideration for creating a framework that is able to secures access to justice and facilitate communication of authorities in charge of delivering justice services during long lasting disruptive events.

The Explanatory Memorandum of the proposal emphasizes the importance to achieve the following goals: efficient cross-border cooperation, resilience in force majeure circumstances, and contributing to securing access to justice within ‘a reasonable time’ as crucial element for the right to a fair trial.

Aims of the Proposal

The proposed regulation aims to ‘ensure an adequate and holistic infrastructure for electronic communication between individuals, legal entities or competent authorities with the authorities of another Member State’. This common approach should:

  • Ensure the availability and broad use of electronic means of communication in cross-border cases between Member States’ competent authorities including the Justice and Home Affairs and EU bodies;
  • Enable the use of electronic means of communication in cross-border cases between individuals and legal entities, and courts and competent authorities (except for situations covered by the Service Regulation);
  • Facilitate the participation of parties in oral hearings through videoconference or other distance communication technology in cross-border civil and criminal proceedings for reasons other than the taking of evidence (taking of evidence by videoconference or other distance communication technology fall under the Evidence Regulation);
  • Ensure that documents are not refused or denied legal effect solely on the grounds of their electronic form (this is not to touch upon courts’ powers to decide on the validity, admissibility and probative value as evidence under national law); and
  • Ensure the validity and acceptance of electronic signatures and seals in electronic communication in cross-border judicial cooperation and access to justice.

When adopted the text is set to coordinate Member States’ efforts in digitalising judicial services and establish a coherent framework for the existing EU rules, leading to simplification and speeding up of communication between Member States authorities and individuals and legal entities.

The e-CODEX system will secure the interoperability of national and EU access points, while the European e-Justice Portal is expected to undergo some modifications to support the interaction between natural and legal persons and courts and competent authorities in cross-border proceedings.

Overview of the Text of the Proposal

The first articles (Articles 1-2) establish the scope of the act, the limitations to its application and defines the concepts used within its provisions. Article 3 is dedicated to the rules concerning the decentralised system consenting electronic communication between courts and competent authorities. The use of the system is to be compulsory, except in case of disruption of the system or in other specific circumstances. Article 4 establishes the European electronic access point. The European electronic access point is to be part of the e-CODEX decentralised IT system and may be used by natural and legal persons for electronic communication with the courts and competent authorities in civil and commercial matters having cross-border implications. This is to be located on the European e-Justice Portal. Article 5 sets a duty on the EU Member States’ courts and competent authorities to accept electronic communication from natural and legal persons in judicial procedures, but leaves the choice of the electronic means of communication at the discretion of the natural and legal persons (e.g. European electronic access point, national IT portals were available for participation in judicial procedures). Article 6 recognises an electronic submission to be equivalent to a paper one and requires national authorities to accept such communications from natural and legal persons. Article 7 provides the legal basis and sets out the conditions for using videoconferencing or other distance communication technology in cross-border civil and commercial proceedings under the legal acts listed in Annex I and in civil and commercial matter where one of parties is present in another Member State. Additionally, special rules are set by this article for hearing children. Article 8 addressing the same aspect for criminal matters, including special rules for hearing a suspect person, an accused, convicted person or children. Article 9 focuses on using trust services (i.e. electronic signatures and seals) in electronic communication. Article 10 requires that electronic documents are not denied legal effects solely on the ground that they are in electronic form. This provision is similar to provisions on the matter included in the Recast Service of Documents and Tacking of Evidence Regulations as well as the eIDAS Regulation. Article 11 provides the legal basis for electronic payment of fees, including through the European e-Justice Portal. This point is of high significance in cross-border procedures as it proved to be a problematic aspects in the application of the European uniform procedures in several Member States (e.g. the European Order for Payment, the European Small Claims Procedure). Article 12 lays the framework for the Commission to adopt the necessary implementing acts, while Articles 13-14 mandate the Commission to create, maintain, and develop the reference implementation software and deal with the matter of cost bearing for various IT developments. Article 15 addresses the aspects related to the protection of personal data exchanged through the digital means. Articles 16-18 set the rules for collecting data and evaluation of the effectiveness of the proposed Regulation. This is followed by a number of articles focusing on the amendment of several regulations in civil, commercial and criminal matters. Articles 19-22 introduce a number of amendments to Regulations in civil and commercial matters included in Annex I, while Article 23 seeks to amend criminal matters side related to the Regulation on mutual recognition of freezing orders and confiscation orders.

Regulations to be Amended by the Proposal

The European uniform procedures regulations – European Order for Payment, European Small Claims Procedure and the European Account Preservation Order – will be amended by the present proposal. The rules seek to create the legislative format to: (1) recognise the submission of the applications or other forms of the procedures by electronic communication means provided by the present proposal or any other means of communication, included electronic, accepted by the Member State of origin or available to the court of origin, (2) secure the recognition of electronic signatures, (3) make available means of electronic payment of court fees (i.e. for the European Small Claims Procedure), (4) secure the communication by electronic means of communication between the authorities and the parties involved.

Another regulation to be amended is the Insolvency Regulation. The proposal introduces provisions related to the cooperation and communication between courts for secondary insolvency proceedings in the sense that these should be carried out via the decentralised electronic means referred to by the present proposal – e-CODEX. Additionally, any foreign creditor should be able to lodge claims in insolvency proceedings by any means of communications accepted by the State of opening of the proceedings or by the electronic means provided by Article 5 of the proposal.

In criminal matters, the Regulation on the mutual recognition of freezing orders and confiscation orders will also be amended when the proposed regulation will be adopted. The e-CODEX decentralized system consenting electronic communication between courts and competent authorities will have to be used for a number of actions, namely: (1) by the issuing authority to transmit the freezing order to the executing authority, or central authority; (2) for the executing authority to report on the execution of the freezing order; (3) to inform the issuing authority on any decision to recognise and execute or not to recognise and execute an issued freezing order; (4) for the executing authority to report the postponement of the execution to the issuing authority and subsequent measures taken for its execution; and (5) for the execution authority to make a reason request to the issuing authority to limit the period for which the property is to be frozen. The same applies for similar provisions related to confiscation orders.

Concluding Remarks

When adopted this regulation will achieve one of the goals set out in last year’s Communication on the Digitalisation of Justice: making ‘digital communication channels the default channel in cross-border judicial cases’. If properly applied this will address two main problems of cross-border judicial cooperation: inefficiencies affecting this cooperation and barriers to access to justice in cross-border civil, commercial and criminal cases.

Now, it remains to be seen how the adopted text of the regulation will look like and how long it will take for achieving its full deployment in cross-border civil, commercial and criminal cases.