Developments in PIL EU Legislation Normative texts

e-CODEX Regulation Published

Regulation (EU) 2022/850 of the European Parliament and of the Council of 30 May 2022 on a computerised system for the cross-border electronic exchange of data in the area of judicial cooperation in civil and criminal matters (e-CODEX system), and amending Regulation (EU) 2018/1726, has been published on the Official Journal of 1 June 2022.

Marion Ho-Dac has reported on this blog on the procedures at the institutional level towards the adoption of the instrument (see here and  here).

The Regulation is based on the TFEU, especially on Article 81(2) and Article 82(1) thereof. It is thus meant to contribute to the overall objective of the EU’s Area of Freedom, Security and Justice of guaranteeing effective access to justice for citizens and businesses and facilitating judicial cooperation between the Member States. More specifically, it concerns communication between parties and courts, as well as between authorities in different Member States,  through the cross-border electronic exchange of data.

The underlying idea of the Regulation is quite basic and definitely not new: technology tools are key for the above-mentioned communication to be effective, but they need to be secure. In this context, e-CODEX (e-Justice Communication via On-line Data Exchange) was launched under the multiannual e-Justice action plan 2009-2013 to promote the digitalisation of cross-border judicial proceedings and to facilitate the communication between Member States’ judicial authorities; it has been working experimentally since then. Simply put, the e-CODEX system consists of a package of software products which can be used to set up an access point for secure communication. Access points using e-CODEX can communicate with other access points over the internet via a set of common protocols, with no central system involved.

During the last years e-CODEX has developed in a way allowing the Commission to define it as ‘the main tool and the gold standard for establishing an interoperable, secure and decentralised communication network between national IT systems in cross-border civil and criminal proceedings’ (COM (2020) 712 final). It could thus receive legislative blessing (and support). Moreover, the system has so far been managed by a consortium of Member States and other organisations, with funds from the participant Member States and from EU grants. For sustainability reasons, the model needed to be replaced.

In keeping with the above, the Regulation has been adopted to establish the legal framework for the e-CODEX system. It lays down rules on the definition, composition, functions and management of the system ; on the responsibilities of the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), regarding the e-CODEX system ; on the responsibilities of the Commission, Member States and the entities operating authorised e-CODEX access points; and on a legal framework for the security of the e-CODEX system. It should be noticed that it does not provide for the mandatory use of e-CODEX.

The text, with EEA relevance, shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It will nevertheless take some time until the institutional structure it sets up is into motion (for instance, eu-LISA is not expected to take over the e-CODEX system before July 2023). In as far as civil justice in cross-border cases is concerned, it is important to know that the European e-Justice portal will use e-CODEX to enable citizens to electronically sign and send applications for European payment orders and small claims to competent courts in the Member States. e-CODEX shall also work as digital channel to serve documents and to take evidence abroad under the new service and evidence Regulations, adopted on 25 November 2020.

Legal Secretary CJEU Full Professor PIL University of Santiago de Compostela (Spain) Senior research fellow MPI Luxembourg (on leave)

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