EUROPEAN
COMMISSION
Brussels, 1.12.2021
SWD(2021) 392 final
COMMISSION STAFF WORKING DOCUMENT
IMPACT ASSESSMENT REPORT
Accompanying the document
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL on the 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
and
Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL on amending Council Directive 2003/8/EC, Council Framework Decisions
2002/465/JHA, 2002/584/JHA, 2003/577/JHA, 2005/214/JHA, 2006/783/JHA,
2008/909/JHA, 2008/947/JHA, 2009/829/JHA and 2009/948/JHA, and Directive
2014/41/EU of the European Parliament and of the Council, as regards digitalisation of
judicial cooperation
{COM(2021) 759 final} - {SEC(2021) 580 final} - {SWD(2021) 393 final}
EN EN
Table of contents
1. INTRODUCTION: POLITICAL AND LEGAL CONTEXT ................................................. 5
2. PROBLEM DEFINITION ....................................................................................................... 8
2.1. What is the problem? .................................................................................................... 8
2.1.1. Inefficient cross-border judicial cooperation ................................................................. 11
2.1.2. Barriers to access to justice in cross-border cases ......................................................... 13
2.2. What are the problem drivers? .................................................................................... 15
2.2.1. Different level of digitalisation and voluntary use of existing digital channels ........... 15
2.2.2. Recognition of electronic signatures/seals and legal validity/acceptance of electronic
documents ........................................................................................................................................... 16
2.2.3. Language barriers ............................................................................................................ 17
2.2.4. Non-resilience of judicial systems to force majeure circumstances .............................. 17
2.3. How will the problem evolve? .................................................................................... 18
3. WHY SHOULD THE EU ACT?........................................................................................... 19
3.1. Legal basis .................................................................................................................. 19
3.2. Subsidiarity: Necessity of EU action .......................................................................... 20
3.3. Subsidiarity: Added value of EU action ..................................................................... 20
4. OBJECTIVES: WHAT IS TO BE ACHIEVED? ................................................................. 21
4.1. General objectives ...................................................................................................... 21
4.2. Specific objectives ...................................................................................................... 21
5. WHAT ARE THE AVAILABLE POLICY OPTIONS?....................................................... 23
5.1. What is the baseline from which options will be assessed?........................................ 23
5.2. Description of policy options ...................................................................................... 24
5.3. Options discarded at an early stage ............................................................................. 29
6. WHAT ARE THE IMPACTS OF THE POLICY OPTIONS? ............................................. 29
7. HOW DO THE OPTIONS COMPARE? .............................................................................. 39
8. PREFERRED OPTION ......................................................................................................... 43
9. HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED?.................... 44
ANNEX 1: PROCEDURAL INFORMATION ............................................................................. 47
ANNEX 2: STAKEHOLDER CONSULTATION ........................................................................ 51
2.1. SUMMARY OF THE FEEDBACK ON THE ROADMAP ................................................... 51
2.2. PUBLIC CONSULTATION RESULTS ................................................................................. 58
RESULTS OF THE PUBLIC CONSULTATION ......................................................................... 60
ANNEX 3: WHO IS AFFECTED AND HOW?............................................................................ 72
ANNEX 4: ANALYTICAL METHODS ....................................................................................... 75
ANNEX 5: COVID19 IMPACT ON CIVIL PROCEEDINGS – NATIONAL
MEASURES .......................................................................................................................... 81
ANNEX 6: STATISTICAL DATA ON THE USE OF THE E-JUSTICE PORTAL .................. 118
ANNEX7: THE STANDARD COST MODEL FOR ESTIMATING
ADMINISTRATIVE COSTS.............................................................................................. 119
ANNEX 8: WHAT ARE THE PROBLEMS AND THEIR CAUSES? ....................................... 155
2
Glossary
Term or acronym Meaning or definition
TFEU Treaty on the Functioning of the European Union
JHA Justice and home affairs
JHA agencies and EU bodies Eurojust, Europol, Frontex, European Public Prosecutor’s Office (EPPO) and
European Anti-Fraud Office (OLAF)1
e-CODEX e-Justice Communication via Online Data Exchange (communication system
for the secure exchange of information developed for the judicial area)
eEDES e-Evidence Digital Exchange System
e-Justice portal The main tool that has been developed to improve access to information in
the area of justice
EJN-civil European judicial network in civil and commercial matters
EJN-criminal European judicial network in criminal matters
eu-LISA European Union Agency for the Operational Management of Large-Scale IT
Systems in the Area of Freedom, Security and Justice
e-IDAS Electronic Identification Authentication and trust Services
EAW European arrest warrant
EIO European investigation order
EPO European payment order
CEHJ European Chamber of Judicial Officers/Bailiffs
ICT system Information communications technology system – a set-up consisting of
hardware, software, data and the people who use them. It commonly includes
communications technology, such as the internet.
IT Information technology
IMI system Internal Market Information system
iSupport IT system for the cross-border recovery of maintenance obligations under the
EU 2009 Maintenance Regulation and the 2007 Hague Child Support
Convention, which makes use of e-CODEX for communication
SMEs Small and medium-sized enterprises – businesses whose staff numbers fall
below certain limits
RSB Regulatory Scrutiny Board
Reference implementation An user interface software developed for the purposes of distributed systems
software to be used by each Member State as an alternative to the national back-end
1 As per the Cross-Border Digital Criminal Justice Study
3
system
SMEs Small and medium-sized enterprises or small and medium-sized businesses
- businesses whose personnel numbers fall below certain limits
Transaction “Transaction” for the purposes of this document refer to the instance where a
package of documents is sent cross-border with acknowledgement of receipt
from a individual, legal entity, legal practitioner or court/competent authority
in one MS to a court/competent authority in another MS.
4
1. INTRODUCTION: POLITICAL AND LEGAL CONTEXT
Today’s constantly expanding and evolving digital environment influences not only our
daily lives and social contacts, but also the functioning of state institutions, including the
judiciary. The ubiquitous process of digital transformation has tremendous potential to
facilitate and accelerate judicial proceedings, including judicial cooperation across
borders.
The aim of digitalisation in this area is to improve access to justice, cooperation between
judicial authorities in cross-border cases, and the efficiency and resilience of justice
systems. In order to further e-Justice at EU level, the Council of the EU has adopted a
series of strategies and action plans in the past few decades, most recently the e-Justice
strategy for 2019-20232 and the associated action plan for 2019-20233.
The digitalisation of justice is part of the work to create “A Europe fit for the digital
age”, as set out in the “Political Guidelines for the next European Commission 2019-
2024”4. The Commission’s guidelines acknowledge the central role that it, and the public
sector in general, can play in stimulating the digital transformation process. e-Justice is
also seen as central to post-COVID recovery5 in improving access to justice and thus
enhancing the business environment. More recently, the digitalisation of justice systems
was deemed a key reform area in the context of the Recovery and Resilience Facility6.
The Commission developed its vision of the EU’s digital transformation by 2030 in its
communication “2030 Digital Compass: the European way for the Digital Decade”7
(9 March 2021). The Communication points out that digital transformation enables
modern, efficient justice systems, the protection of consumer rights and more effective
public action, partly through better law enforcement and investigation capacities (which
must be equipped as well as possible to deal with increasingly sophisticated digital
crimes).
The 2020 Strategic Foresight report8 recognises the crucial importance of the digital
transformation of public administrations and justice systems throughout the EU. The
transition should work for everyone, putting people first and opening up new
opportunities for all types of stakeholder. It should therefore address a broad range of
issues.
2
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:52019XG0313(01)
3
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52019XG0313%2802%29
4
https://ec.europa.eu/info/sites/info/files/political-guidelines-next-commission_en_0.pdf
5
Communication from the Commission to the European Parliament, the European Council, the Council,
the European Economic and Social Committee and the Committee of the Regions, Europe’s moment:
repair and prepare for the next generation (COM(2020) 456, 27 May 2020).
6
https://eur-lex.europa.eu/legal-
content/EN/TXT/?toc=OJ:L:2021:057:TOC&uri=uriserv:OJ.L_.2021.057.01.0017.01.ENG
7
https://ec.europa.eu/info/strategy/priorities-2019-2024/europe-fit-digital-age/europes-digital-decade-
digital-targets-2030_en
8
https://ec.europa.eu/info/strategy/priorities-2019-2024/new-push-european-democracy/strategic-
foresight/2020-strategic-foresight-report_en
5
In its July 2020 Security Union Strategy, the Commission committed to specific actions
to enable law enforcement and justice practitioners to adapt better to new technology,
thanks in particular to new tools, skills and investigative techniques.
At the beginning of June 2021, the Commission adopted a proposal for amending the
e-IDAS Regulation9 to establish a framework for a European digital identity10. The
proposal addresses the increased private and public sector demand for electronic identity
solutions that rely on specific attributes and ensure a high level of trust across the EU.
The envisaged digital identity wallet storing attributes and credentials will allow
individuals and legal entities to access public services.
The European Council11 and the European Parliament12 both recognised the pivotal role
of digitalisation in helping to relaunch and modernise the EU economy following the
COVID-19 crisis.
On 9 June 2020, the Council adopted conclusions on “Shaping Europe’s digital future”13,
which recognise that ‘the digitalisation of the justice systems of the Member States has
the potential to facilitate and improve access to justice throughout the EU’. The Council
calls on the Commission ‘to facilitate the digital cross-border exchanges between the
Member States both in criminal and civil matters and to ensure the sustainability and
ongoing development of the technical solutions which have been developed for
cross-border exchanges’.
The October 2020 Council conclusions on “Access to justice – seizing the opportunities
of digitalisation”14 call on the Commission to take concrete action to digitalise justice,
including by:
examining the potential for modernising the core provisions of instruments in civil
and commercial matters in line with the ‘digital by default’ principle; and
considering to which judicial cooperation instruments in criminal matters the
e-Evidence Digital Exchange System (eEDES) might be extended.
The December 2020 Council conclusions on the European arrest warrant (EAW)
underline that digitalisation should play a central role in the operation of the EAW15.
9
Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on
electronic identification and trust services for electronic transactions in the internal market and
repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73).
10
https://eur-lex.europa.eu/legal-content/NLEN/TXT/?uri=CELEX:52021PC0281
11
A roadmap for recovery – towards a more resilient, sustainable and fair Europe, endorsed on
23 April 2020.
12
Resolution of 17 April 2020 on EU coordinated action to combat the COVID-19 pandemic and its
consequences.
13
https://data.consilium.europa.eu/doc/document/ST-8711-2020-INIT/en/pdf
14
OJ C 342I, 14.10.2020, p. 1.
15
https://data.consilium.europa.eu/doc/document/ST-13214-2020-INIT/en/pdf
6
In November 2020, the Parliament and the Council adopted recasts of the Service of
Documents Regulation16 and the Taking of Evidence Regulation17. These require
Member States’ competent authorities to communicate with each other by electronic
means (e.g. to exchange standardised forms, documents, etc.).
The work on the two Regulations was closely linked with the Commission’s overall
priority of digitalisation and e-Justice and the parallel work in the field of criminal
justice18. Following the Commission’s proposals in 201819, the co-legislators are
negotiating a legislative framework on cross-border access to e-evidence. In this context,
the Commission’s proposals already highlight the importance of electronic platforms,
e.g. for the submission of requests, the authentication of orders and responses by service
providers20. The legislative framework established by the e-evidence proposal in criminal
matters will rely on adigital channel for communication similar to the one considered in
this initiative, for obtaining evidence from internet service providers.
In December 2020, the Commission adopted a Communication on the digitalisation of
justice in the EU,21 proposing a toolbox approach, i.e. a set of measures promoting
digitalisation both for cross-border exchanges and at national level. It addressed the
modernisation of the legislative framework for EU cross-border procedures in civil,
commercial and criminal law, in line with the ”digital by default” principle, while
ensuring all necessary safeguards e.g. to avoid social exclusion. The Commission will be
proposing legislation on digitalising cross-border judicial cooperation procedures in civil,
commercial and criminal matters, as announced in its 2021 work programme22 (see
”digital judicial cooperation” package). This is the flagship initiative of the “digital
judicial cooperation package”. The package includes a proposal for amendments of the
European Judicial Counter Terrorism Register and a proposal for the establishment of an
IT platform to support the Joint Investigations Teams. All three initiatives aim at
digitalising processes by employing different tools designed to serve the purposes of the
respective procedures covered by them.
The e-CODEX system is a suite of software components for EU judicial cooperation,
developed by a consortium of Member States and co-financed by the Commission. It
supports secure communication in civil and criminal proceedings by enabling the secure
cross-border exchange of electronic messages and documents. Together with the
December 2020 Communication (see above), the Commission adopted a legislative
16
Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on
the service in the Member States of judicial and extrajudicial documents in civil or commercial matters
(service of documents) (recast).
17
Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on
cooperation between the courts of the Member States in the taking of evidence in civil or commercial
matters (taking of evidence) (recast).
18
Digital criminal justice (Criminal Justice study).
19
COM(2018) 225 and 226 final.
20
See also SWD(2018) 118 final.
21 EUR-Lex - 52020DC0710 - EN - EUR-Lex (europa.eu)
22
https://ec.europa.eu/info/publications/2021-commission-work-programme-key-documents_en
7
proposal for a Regulation of the European Parliament and of the Council on a
computerised system for communication in cross-border civil and criminal proceedings
(e-CODEX system). It establishes a legal basis for the e-CODEX system and guarantees
its sustainability and future management by entrusting it to the European Union Agency
for the Operational Management of Large-Scale IT Systems in the Area of Freedom,
Security and Justice (eu-LISA)23. The e-CODEX system would thus be the most suitable
tool for the digitalisation of cross-border judicial cooperation procedures. The Council
has reached agreement on a general approach on the Commission’s proposal24.
2. PROBLEM DEFINITION
2.1. What is the problem?
This initiative aims to tackle two main problems:
inefficient cross-border judicial cooperation; and
barriers to access to justice in cross-border cases.
There is a comprehensive set of EU-level instruments designed to enhance judicial
cooperation and access to justice in cross-border civil, commercial and criminal cases.
Many of these provide a legal basis for communication between authorities, including
Justice and Home Affairs agencies and EU bodies, and between authorities and
individuals or legal entities. However, most of them do not provide for engaging in such
communication through digital means. Even where they do, as is the case with the Small
claims regulation or European order for payment regulation, which foresees the
possibility for communication via e-mail or other electronic means, the use of such
means depends on the law of the Member States involved in the case. In addition, other
gaps exist, such as the lack of secure and reliable digital communication channels or the
non-recognition of electronic documents, signatures and seals. e-CODEX, for example, is
a system for secure communication in cross-border judicial cooperation procedures.
However, the proposal for a Regulation governing e-CODEX only aims to establish a
legal basis for e-CODEX and to regulate its governance and maintenance. It would not
prescribe practical cases of application, which is to be achieved through this initiative.
All this deprives judicial cooperation and access to justice of the use of the most
efficient, secure and reliable channels available.
These problems directly impact the national authorities’ ability to process cases
(including the cross-border ones). National courts received (as per the 2021 EU Justice
Scoreboard) an average of 2.3 new cases per 100 citizens in 2019, when the average
duration of civil and commercial cases was around 247 days in the first instance 25. The
latter figure does not reflect the fact that cases took on average twice as long in some
23
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52020PC0712
24
https://data.consilium.europa.eu/doc/document/ST-9005-2021-INIT/en/pdf
25
https://ec.europa.eu/info/sites/default/files/eu_justice_scoreboard_quantitative_factsheet_2021.pdf
(Figure 4 is relevant to civil and commercial cases).
8
countries26 and that final resolution often involves a long appeal process before the
higher courts, which in some cases can take more than 7 years27. A Council of Europe
study28 has concluded that the length of court proceedings in both civil and criminal
cases (which affects the basic right to a fair trial) still constitutes a major concern
Europe-wide. Considering the volume of cases and the need to resolve them expediently,
digital tools that make judicial authorities more efficient, including in their
communication between each other and with individuals/legal entities, are key for a
well-functioning justice sector.
However, at national level, the infrastructure for digital communication does not always
allow the use of modern communication technologies. The 2021 EU Justice Scoreboard29
shows gaps in the provision of adequate infrastructure and equipment supporting secure
electronic communication – 12 Member States do not have adequate infrastructure for
electronic communication between courts and 19 Member States do not have such
infrastructure for communication between prosecution offices. These gaps also affect the
availability of digital infrastructure for use in cross-border cases as well as other issues
specific to matters involving more than one Member State, such as the interoperability of
communication systems, availability to foreign nationals, and rules governing
identification and the legal validity of electronic documents and evidence.
These in turn create problems such as procedural delays, limited access to courts and
communication channels that are less effective, resilient and efficient than is
technologically possible (involving extra costs, e.g. for sending registered letters,
scanning documents and printing). Germany and Austria conducted a pilot project on the
use of digital communication technologies for the European payment order30, which
showed that the use of such technologies generally brought cost savings. It costs EUR
0.07 to send an electronic message, while postage for a registered letter is EUR 3-5,
without counting the extra time and costs for printing, scanning and archiving paper
documents.
Another consequence of the lack of secure digital communication channels is the use of
unsecure channels, such as e-mail. The impact assessment accompanying the
Commission’s proposal for e-CODEX31 identifies potential shortcomings of using
unsecure channels (e.g. as regards long-term sustainability, data integrity and possible
data leaks) and software that does not meet the requirements of EU judiciaries.
26
Ibid (Figure 7).)
27
https://www.oecd.org/economy/growth/judicial-performance.htm
28
https://rm.coe.int/1680747c36
29
https://ec.europa.eu/info/sites/default/files/eu_justice_scoreboard_2021.pdf
30
See Annex 9.
31
https://ec.europa.eu/info/sites/default/files/law/cross-border_cases/documents/e-codex-impact-
assessment_en.pdf (p. 22).)
9
With regards to the security of the communication, the public consultation indicated data
protection concerns as the second most important disadvantage of digitalisation of cross-
border judicial cooperation with 50% of respondents considering it as a disadvantage
(after cybersecurity with 63%)32. As a result of faster processing, the amount of personal
data processed within a given timeframe (e.g. every year) may also increase.
The security of personal data processing is essential to protect data subjects. The e-
CODEX system was designed specifically for the justice area, and uses encryption to
ensure security. Using e-CODEX for cross-border exchanges would increase security and
thereby mitigate the risk of security breaches. e-CODEX is therefore clearly an
improvement compared to present exchanges using paper or unsecure e-mails.
In addition, the digitalisation of existing data exchanges will not introduce any new
personal data categories compared to what is already exchanged today through traditional
means, nor will it affect the existing data processing arrangements. The increased
personal data processing would be solely the result of increased efficiency/effectiveness
and simplification, rather than of the digitalisation itself. Moreover, compared to the
paper channel the use of digital tools would provide better traceability and audit
capabilities and the possibility for automatic enforcement of personal data retention
policies – the timely removal of personal data, which no longer needs to be stored.
The above problems, along with their causes and consequences, are summed up in the
problem tree (Figure 1), which shows the issues faced in cross-border cases by competent
authorities, individuals and legal entities communicating with competent authorities in
another Member State.
32
Annex 3 of the final report prepared by VVA.
10
Figure 1: Problem tree
2.1.1. Inefficient cross-border judicial cooperation
Efficient cross-border judicial cooperation involves secure, reliable and time-efficient
communication between courts and competent authorities, to reduce administrative
burden and increase resilience to force majeure circumstances. This is also central for
individuals and legal entities, as the conduct of judicial proceedings in a reasonable time
is a crucial aspect of the right to a fair trial, as enshrined in Article 47(2) of the EU
Charter of Fundamental Rights. It is equally important for the effective and speedy
prosecution of crimes. In addition, lengthy proceedings are problematic, because they
trigger higher costs for defendants (lawyers’ fees, etc.) and longer detention times for
individuals who have been arrested or are to be surrendered.
Data exchanges in cross-border cases – mainly those between competent authorities and
with JHA agencies and EU bodies, but also procedures directly involving individuals and
legal entities – are overwhelmingly paper-based and no IT system fully supports the
communication process.
Among other disadvantages, the physical transmission of paper is inherently slow and
relatively inefficient and unreliable. The average time declared by operators (postal
services, carriers etc.) for posting a first-class letter in the EU-27 is 2 days (48 hours) and
there are examples that this time may be much longer – between 3 to 15 days depending
11
on the destination33. It also often involves the sender making hard copies of digitally
native documents, which are subsequently digitised by the recipient. This generates
significant additional work and sacrifices many of the advantages of digitally native
documents, such as searchability, resolution (in the case of pictures), etc. Moreover, due
to the advance of digitalisation in all areas of life (including archiving) and the external
costs of printing (in an economy that must become more sustainable), the limited
availability of printing services34 may soon pose a practical threat to the traditional means
of communicating with the judiciary. Paper-based transmission channels are also
particularly vulnerable to crises, such as the COVID-19 pandemic, during which Member
States’ lockdown measures have impeded access to courts and communication between
competent authorities.
By way of example, at present the procedure for obtaining an EPO includes the
following steps: The applicant accesses the e-Justice portal35 to retrieve the
standardised request form for issuing of an EPO and information regarding the
competent court in the receiving Member State; The form is then filled in and,
while online, automatically translated into the language accepted by the
receiving Member State; The applicant prints the form, puts it in an envelope and
goes to a post office (or a post box) to send it; On receipt of the request, the staff
of the competent court in the receiving Member State have to register it manually
(or, if there is an electronic case management system, scan it and enter the
relevant data), create a case file and assign it to a judge; The assisting judicial
clerk brings the case physically to the judge (or, if there is an electronic case
management system, the judge receives it as an electronic file);The judge delivers
a decision (using a standardised form), which is then printed, registered
(manually or electronically) and sent to the applicant in the same way as the
initial request was sent; The case is manually archived by the court staff.
Currently, it is generally not possible to automate this process. However, this could be
achieved by incorporating multilingual standard forms in the IT system, which would
allow their automated generation, extraction of data from the database and automatic
translation of the standardised content into all EU languages. It would also improve
searchability, by making it easier to store data and retrieve it from the existing database.
Automating the processing of EPO requests would significantly alleviate the
administrative burden of processing them, making cross-border proceedings much more
efficient.
Ultimately, the current delays mostly affect parties to the proceedings (individuals and
legal entities) and their ability to protect and assert their rights effectively. Furthermore,
33
Table 16 of the final report of the Study prepared by Valdani Vicari & Associati (VVA)
34
Printing industry | Internal Market, Industry, Entrepreneurship and SMEs (europa.eu).
35
Conceived as an electronic ‘one-stop shop’ in the area of justice, the portal contains information
on Member States’ justice systems, their national laws and EU judicial cooperation instruments, but also
standardised forms used in the context of EU instruments in civil, commercial and criminal matters, in all
EU languages.
12
the 2021 EU Justice Scoreboard states that reducing the length of court proceedings by
just 1% (measured in disposition time) could boost firms’ growth. Even such a minimal
improvement is associated with higher trade turnover and productivity growth. In
criminal law, access to justice across borders is particularly problematic for victims of
crime and defendants. Lengthy periods spent by foreign suspects in pre-trial detention
may be partly a result of the time it takes competent authorities to exchange European
investigation orders (EIOs)36 through traditional paper-based channels. Excessively long
proceedings and high legal costs deter or even prevent victims from asserting their rights
by taking cases to court37.
During the COVID-19 pandemic, courts have been unable to maintain normal
operations. The European judicial network in civil matters (EJN-civil), as the
main EU body mandated with facilitating cross-border cooperation in civil and
commercial cases, has produced a comparative table on the pandemic’s impact
showing that Member States were forced to take a number of measures in relation
to judicial authorities, ranging from complete shutdowns to treating certain
priority cases only38. Meanwhile, activities that could be conducted digitally
(e.g. by e-mail, videoconference, etc.) continued uninterrupted. However, these
solutions often did not satisfy common security, interoperability, data protection
and fundamental rights standards, nor could all Member States guarantee the
procedural acceptance or effect of communications, due to the lack of harmonised
EU-level rules. Judicial cooperation therefore needs to be made less dependent on
external factors.
2.1.2. Barriers to access to justice in cross-border cases
As a basic principle of the rule of law, ‘access to justice’ involves individuals and legal
entities being able to rely on effective procedures and accessible remedies for the
protection of their rights. However, mere access to judicial authorities does not
automatically constitute effective access to justice. What needs to be safeguarded is the
effectiveness of the procedures and the elimination of practical difficulties. Individuals
and legal entities should be able to protect their rights and have their obligations
determined in a swift, cost-effective and transparent way. Otherwise, bottlenecks such as
prolonged procedures, geographical distance and red tape (excessive bureaucracy and
adherence to statutory rules and formalities) impair access to justice and the right to an
effective judicial remedy. In addition, the pandemic has shown that force majeure
circumstances can severely inhibit the normal functioning of judicial systems. These
general problems constitute barriers to access to justice, which could be mitigated by
increased digitalisation of judicial procedures.
36
EIO is a judicial decision issued in or validated by the judicial authority in one EU country to
have investigative measures to gather or use evidence in criminal matters carried out in another EU
country.
37
A conclusion of the EU-level focus group meeting on 4 May 2021Focus Group conducted by the
external contractor Valdani Vicari & Associati (VVA) for the purposes of the study.
35
EJN comparative table (Annex 5), Table 4
13
The use of paper files and traditional transmission channels continues to dominate
national and cross-border judicial proceedings39. According to the findings of the
national legal mapping conducted for the supporting study, in most Member States
paper-based communications constitute the majority of all cross-border communications
between courts/competent authorities of the Member States and between the latter and
parties to proceedings40. Stakeholders point to the challenges created by the current
paper-based exchange of documents and deem it important to be able easily to submit
documents digitally and receive information from relevant authorities in a digital
format41.
However, there are no harmonised arrangements at EU level whereby individuals and
legal entities can make and accept electronic submissions in cross-border cases. This
state of affairs is in stark contrast to the increased use of digital tools in our everyday
lives. It is particularly striking in a Europe of open borders, where individuals and legal
entities can find themselves involved in litigation before the court of another EU country.
The lack of digital tools can curtail access to justice in many other ways, especially in
cross-border cases, where geographical distance, language differences and a lack of
experience of a foreign legal system can make it very cumbersome and expensive. This is
particularly true for people in remote or rural areas, or those affected by disability or
vulnerability. Attending oral hearings in person is often considered stressful and
time-consuming. In criminal cases, remote video hearings may avert the need for
surrender under an EAW and thus for long periods of pre-trial detention in a foreign
country. Consumers and small (or even medium-sized) businesses may face
disproportionate extra obstacles in pursuing low-value claims in civil cases that deter
them from initiating a cross-border procedure. Delays caused by the lack of effective
digital communication also impair effective access to justice.
For instance, the evidence gathered in the study supporting the Impact Assessment42
indicated that victims and defendants risk being deterred or unable to enforce their rights
by taking cases to court in cross-border cases. The results of the public consultation also
indicate that there are barriers to access to justice which could be reduced by better use of
digital tools. More than 80% of the respondents to the public consultation agree that the
use of digital tools would lead to better accessibility of information and easier access to
judicial procedures (≈86%). Additionally, respondents agree that it would result in time
savings for both administrations and citizens/businesses (≈87%), and in lower costs of
handling cases both for administrations and citizens/businesses (≈81%).
39
VVA EU-level focus group meeting (4 May 2021).
40
Section 2.2.2 of the final report of the study prepared by the external contractor Valdani Vicari &
Associati (VVA).
41
Ibid.
42
Section 2.1, page 19 of the final report of the study prepared by the external contractor Valdani Vicari &
Associati (VVA).
14
2.2. What are the problem drivers?
The problems described above are the result of factors explored in this section. A detailed
description of the problem drivers may be found in Annex 8.
2.2.1. Different level of digitalisation and voluntary use of existing digital channels
Degrees of digitalisation vary across the Member States43, although all EU countries
improved their digital performance in 202044, with Finland, Sweden, Denmark and the
Netherlands scoring highest, followed by Malta, Ireland and Estonia. However, a higher
ranking on digital performance does not always mean that a Member State’s digital
services will be available in cross-border cases.
The 2021 EU Justice Scoreboard45 highlighted the different degrees to which judiciaries
in the EU use the digital channel. The relevance of this issue was confirmed by the study
carried out to support this impact assessment46, with 49% of national stakeholders
responding to a questionnaire seeing it as a barrier to digital communication. An
additional 37.3% considered it a ‘somewhat relevant’ obstacle.
The e-CODEX system developed by the Member States is a good tool for the
digitalisation of cross-border judicial procedures. However, although its geographical
coverage is expanding and the number of users increasing47, actual uptake by Member
States remains low. This has led to fragmentation and continued inefficiencies, including
the use of the paper channel, with its attendant costs and environmental impact48. The
fragmentation also affects individuals’ and legal entities’ access to justice. Moreover, the
fact that digitalisation is voluntary means that there is no guarantee that all Member
States will be interconnected in the future.
One of the main reasons for the fragmented use of digital tools for cross-border
communication is the voluntary participation in cooperation initiatives. Even where
digital communication is foreseen in EU legislation, there is currently no uniform legal
and technical framework for employing it nor for the acceptance of such communication.
Efforts to establish voluntary digital communication channels have been ongoing since
2009 with limited success. This is evidenced by the fact that, to date, cross-border digital
exchanges are based on bilateral implementation of the e-CODEX system with little
uptake from the Member States. As of February 2020 only 6 Member States participate
43
https://ec.europa.eu/info/sites/info/files/swd_digitalisation_en.pdf
44
https://ec.europa.eu/digital-single-market/en/digital-economy-and-society-index-desi
45
https://ec.europa.eu/info/sites/default/files/eu_justice_scoreboard_2021.pdf
46 Study by external contractor contractor – Study on the digitalisation of cross-border judicial cooperation in the EU
prepared by Valdani Vicari & Associati (VVA)
47
Additional instruments for which the use of e-CODEX is envisaged are the Service of Documents and
Taking of Evidence Regulations (evidence recasts): FD909 – Mutual Recognition of Sentences in
Criminal Law.
48
Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions, Digitalisation of justice in the
European Union: a toolbox of opportunities (SWD(2020) 540 final).
15
in the e-CODEX European order for payment pilot and 5 Member States participate in
the Small claims pilot. The low voluntary participation is not limited to e-CODEX – for
instance the voluntary implementation of the insolvency registers interconnection was
joined by only 9 Member States. At the same time a similar initiative, the Business
Registers Interconnection (BRIS) for which the connection is mandatory, is joined by 26
Member States. Indeed, to our knowledge all successful EU-wide large-scale cross-
border IT systems have been established on the basis of mandatory participation49
2.2.2. Recognition of electronic signatures/seals and legal validity/acceptance of
electronic documents
At present, there are no harmonised arrangements for the recognition of electronic
signatures and seals in the area of cross-border judicial cooperation.
The e-IDAS Regulation defines electronic trust services and sets up a common EU
regulatory framework for these (electronic signatures, electronic seals, time stamps,
electronic delivery services and website authentication). Thus they are recognised across
borders as having the same legal status as paper-based ones. The Regulation forms part
of a predictable legal framework within which individuals, legal entities and public
administrations can safely access services and carry out transactions online and across
borders. e-IDAS solutions have reduced red tape for individuals and generated savings
for businesses.
However, unless explicitly referred to, the Regulation does not cover the provision of
services used exclusively within closed systems between a defined set of participants
with no effect on third parties. Currently, there is no such reference in any of the
applicable civil, commercial and criminal law instruments providing for judicial
cooperation or access to justice and included in the intended coverage of this initiative.
Therefore, and in the absence of legislation Member State participating in e-CODEX
pilots carried out to date were compelled to conclude ad hoc so-called “circle-of-trust”
agreements, to ensure that electronic documents and signature/seals would be recognised
in the pilot procedures. The legal validity of such agreements in the respective national
systems is however doubtful.
Even the seamless recognition of electronic signatures and seals across borders would not
automatically result in the recognition of electronic documents. The legal validity and
admissibility of documents transmitted electronically during judicial proceedings may be
called into question by receiving Member States if not recognised in their national law.
The experience clearly show that developing digital solutions without providing a legal
basis for their use does not serve as an incentive for the MS to use these solutions.
The issues of voluntary participation, non-recognition of electronic documents,
signatures and seals and the lack of interoperability standards and tools were also
49
e.g. the Schengen Information System II (SIS II), Visa Information System (VIS), BRIS.
16
recognised as key barriers by the consulted stakeholders for the purposes of the study.
Respondents (≈82%) noted that such issues hamper the use of digital solutions in the
communication between the competent authorities of the Member States and between
those authorities and parties to the proceedings in civil and commercial cross-border
proceedings (the conclusions are similar for the criminal cases). The legal validity and
admissibility of documents transmitted electronically to another Member State is a
relevant barrier for ≈74%. The fact that electronic signatures/seals used by the issuing
Member State may not be recognised by the receiving Member State is considered as a
relevant barrier to digitalisation by ≈71% of the stakeholders. The lack of interoperability
at international level (e.g. with the IT systems of the courts of other Member States) is
also a relevant barrier to the digitalisation for ≈79% of the consulted stakeholders. The
public consultation demonstrated a similar result.
2.2.3. Language barriers
Stakeholders point to language barriers as a problem in cross-border judicial
cooperation50, e.g. the issuing authority might need to translate documents into a
language accepted by the receiving authority. Also, language issues mean that individuals
are often not at ease when involved in judicial proceedings in another Member State.
In cross-border litigation, serious problems can arise when one or more of the parties is
unfamiliar with the official language of the court. As a consequence, interpreters must
often be used during trials and hearings, and the law has to determine whether a given
document has to be translated.
For example, in low-value cases (e.g. involving a traffic fine to be paid by a foreign
tourist), language could constitute a barrier to access to justice. A person receiving legal
documents in a foreign language might consider it cheaper to pay the fine than to contest
it and incur disproportionate translation costs.
2.2.4. Non-resilience of judicial systems to force majeure circumstances
The COVID-19 crisis has considerably impacted the functioning of Member States’
justice systems and EU cross-border judicial cooperation. Many cross-border and
national procedures have had to be suspended, de facto depriving many individuals and
legal entities of effective access to justice. The pandemic has emphasised the need for
further efforts towards the digitalisation of justice, including closer cooperation between
Member States and with international partners, and the need to promote best practices in
this area.
50
VVA EU-level focus group meeting (4 May 2021).
17
2.3. How will the problem evolve?
Data on the frequency and trends in regards to cross-border exchanges in civil and
criminal matters has been collected in the context of the supporting study51. However,
due to the lack of a harmonised statistical framework, the gaps in the data do not allow
for conclusions about trends in cross-border cooperation to be made.
This being said, it should be pointed out that the problem drivers above are linked to the
increased EU mobility, primarily in the context of tourism, e-commerce, study abroad
etc. There is a significant number of people who cross borders for the purposes of
tourism – 64.7% of EU citizens aged 15 or more did so in 2019 and there is an upward
trend in the number of nights that tourists spend in a country other than their own (from
100 in 2005 to 157.8 in 201952). Furthermore, by relying on the internet (which knows no
borders), including for their work, individuals are increasingly exposed to situations that
can lead to cross-border disputes. The number of people living in a foreign country is
also trending upwards – Eurostat has found that, in 2019, 3.3% of EU citizens of working
age (20 to 64) lived in another Member State, as compared to 2.4% in 200953. There is no
hard evidence that the number of people living or working in a Member State other than
their own increases the number of cross-border disputes. However, there is likelihood of
correlation between the number of people travelling between their place of residence and
their country of origin and the number of the cross-border cases. With more and more
people finding themselves in a cross-border situation, it is to be expected that the number
of cross-border litigations will increase, placing an even greater burden on judicial
systems.
This trend is indirectly evidenced in the constant growth in the number of users of the
e-Justice portal, from 12 934 in January 2019 to 40 555 in June 2021 in the criminal law
area and from 44 632 in February 2019 to 97 971 in June 2021 in the civil law area54.
There is no complete data on the number of cross-border cases as such statistics is often
not prepared by the Member States. However, the size of the problem could be visualised
by the number of cross-border cases, presented in more detail in Annex 7. For example,
the number of exchanges of e-CODEX messages between Austria and Germany in the
first quarter of 2021 on the European order for payment amounts to 574 messages sent
from Germany to Austria and 863 messages sent from Austria to Germany. On an annual
basis, Sweden, receives between 200 and 300 requests for issuing an European order for
payment and 300 European arrest warrants.
51
Section 4 of the Study, tables 2, 3 and 4
52
https://ec.europa.eu/eurostat/statistics-
explained/index.php?title=Tourism_statistics#Nights_spent_abroad_by_EU_residents:_Luxembourg_le
ads_in_nights_per_inhabitant
53
https://ec.europa.eu/eurostat/statistics-
explained/index.php?title=EU_citizens_living_in_another_Member_State_-_statistical_overview
54
Annex 6 – Extract ‘Statistics for the use of e-Justice portal’
18
This tendency is likely to result in an increased workload for courts and a greater weight
of expectation on them to deliver justice, provide individuals/legal entities with
information, accept submissions and communicate with other authorities. A similar trend
can be expected for other competent authorities dealing with cross-border judicial
cooperation, such as central authorities, notaries and bailiffs.
New technologies have the potential to make judicial systems more efficient in this
regard, by easing the administrative burden, shortening case-processing times, making
communication more secure and reliable, and partially automating case handling.
However, the development of national IT solutions independently by the Member States,
leads to a fragmented approach with a lack of interoperability. Even where common
digital solutions are developed at EU level, their uptake in cross-border judicial
cooperation procedures can be expected to advance slowly and in an uncoordinated
manner while participation remains voluntary. This contrasts with rapid digitalisation in
the private and commercial sector, which has been further accelerated by the COVID-19
pandemic. Individuals and legal entities (in particular, businesses) would benefit from
having their rights protected and their obligations enforced by the kind of digital means
that they are used to in their everyday private or commercial activity. A continued lack of
uniform digital tools to fully support cross-border judicial cooperation will probably
reinforce or maintain the tendency to rely on paper-based communication, which results
in financial costs and negative environmental impacts – currently the average cost per
transaction is EUR 10.5555 and estimations on an yearly basis show that 181 448 100 A4
standard 80g printing paper pages (out of which 31 833 000 for the individuals and legal
entities) are used for communication purposes under the respective Union instruments
with the overall average cost of EUR 2 216 160 (EUR 388 800 for individuals and legal
entities)56. A continued lack of a coherent digital approach across Member States will
also affect individuals’ and legal entities’ ability to use the most efficient tools to access
justice.
The ongoing e-CODEX pilot projects57 demonstrate benefits for courts, competent
authorities, individuals and legal entities. However, they do not involve all Member
States, have not resulted in a sufficient increase in the use of digital tools for cross-border
cooperation and cross-border access to justice, and are insufficient in themselves to bring
about a common EU-level approach.
3. WHY SHOULD THE EU ACT?
3.1. Legal basis
The use of digital channels for communication in cross border judicial proceedings
would facilitate judicial cooperation in civil, commercial and criminal matters. Hence,
55
See Annex 9, Table 15.
56
See Annex 9 for detailed explanations and calculation.
57
https://www.e-codex.eu/projects
19
the legal bases for this initiative are Articles 81 and 82 of the Treaty on the Functioning
of the European Union (TFEU) .
More specifically, the use of digital channels for communication would facilitate judicial
cooperation and the effective access to justice in civil matters in line with Article 81(2) of
the TFEU. Article 82(1) of the TFEU is the legal basis for the Union to act in the field of
judicial cooperation to facilitate the cooperation between Member States’ judicial or
other competent authorities in relation to criminal proceedings and the enforcement of
decisions. While Article 82(2) of the TFEU cannot constitute a legal basis for the
adoption of regulations, it is a valid legal basis for the proposed Regulation, since the
Regulation will amend existing directives based on Article 82(2), both through its
horizontal digitalisation provisions and through certain alignment amendments.
3.2. Subsidiarity: Necessity of EU action
The above problems and their causes could have negative repercussions in terms of
delays, security concerns and the reliability of communication in the processing of
cross-border cases. These could be mitigated by the use of modern technologies in the
context of judicial case handling, be it in the area of civil, commercial or criminal law.
Under Article 4(1)(j) TFEU, the competence to adopt measures in the area of freedom,
security and justice is shared between the Union and the Member States. Therefore,
Member States may act alone to regulate the use of digital communication channels in
the context of judicial cooperation and access to justice. However, experience shows that,
without EU action, progress can be expected to be very slow and that, even where
Member States take action, it is very difficult to ensure interoperability without EU
intervention. In addition, cross-border matters are beyond the reach of individual
Member States, as national legal action cannot be expected to reach past national borders.
Therefore, the objective of this initiative cannot be achieved in a sufficiently harmonised
manner by the Member States acting on their own, but only at EU level.
There are already EU-level provisions on the conduct of communication, some of which
even allow for the use of modern technology. However, none has ensured the creation of
an adequate infrastructure for electronic communication from individuals, legal entities
or competent authorities with the authorities of another Member State. Moreover, the
provisions have not been adopted as a coherent whole on which judicial authorities can
rely.
EU action is necessary in order to harmonise the Member States’ efforts and establish a
coherent framework for the existing EU rules.
3.3. Subsidiarity: Added value of EU action
The added value of EU action lies in improving the efficiency, resilience, security and
speed of cross-border judicial procedures, by providing an impetus for the simplification
20
and acceleration of communication between Member States’ authorities and with
individuals and legal entities. Thus, the administration of justice-related cases with
cross-border implications is expected to improve.
Additional added value arises from driving forward the digitalisation of EU judicial
cooperation for all Member States, as compared with the present situation, where only
certain groups of Member States have taken action, resulting in a limited and fragmented
response to the identified problems. Even in digitally well-advanced Member States,
existing tools are not always available for cross-border cases. The digitalisation measures
are also linked to existing instruments in the area of cross-border legal cooperation and
aimed at improving how they function.
The establishment of an access point on the e-Justice portal would bring EU added value
for individuals and legal entities who prefer to make submissions through a multilingual
portal (with guidance in all EU languages) rather than through national portals, which
will not necessarily have the same functionality.
4. OBJECTIVES: WHAT IS TO BE ACHIEVED?
4.1. General objectives
The general objective of the initiative is to improve access to justice and the efficiency of
cross-border judicial cooperation by ensuring the establishment and seamless use of
digital tools.
The COVID-19 crisis has shown the need for a more holistic approach to help modernise
the European area of justice, make it resilient to emerging challenges, strengthen trust in
Member States’ judicial systems and safeguard fundamental rights in the EU. In
particular, the objective is to improve the efficiency of cross-border judicial cooperation
in civil, commercial and criminal matters, and to enhance access to justice for
individuals, legal entities and legal practitioners, while fully respecting fundamental and
procedural rights, in particular the right to a fair trial and the rights of defence.
These objectives can be achieved by deploying digital technologies to improve the
context within which the communication takes place.
4.2. Specific objectives
The following specific objectives are proposed in response to the problems identified
above:
i. ensure the availability and use of electronic means of communication in
cross-border cases between Member States’ courts/competent authorities and
relevant JHA agencies and EU bodies, where such communication is provided
for in EU legal instruments on judicial cooperation;
21
ii. enable the use of electronic means of communication in cross-border cases
between individuals and legal entities, on the one hand, and courts and
competent authorities, on the other; the possibility of individuals and legal
entities to communicate in paper will be maintained.
iii. facilitate the participation of parties to cross-border civil and criminal
proceedings in oral hearings through videoconference or other remote
communication technology, for purposes other than taking evidence in civil
cases58;
iv. ensure that documents are not refused or denied legal effect solely on the
grounds of their electronic form (without interfering with the courts’ powers
to decide on their validity, admissibility and probative value as evidence
under national law); and
v. ensure the validity and acceptance of electronic signatures and seals for
electronic cross-border judicial cooperation and access to justice.
The objectives of the proposed specific actions (operational objectives) are to ensure
that the most rapid, secure and cost-effective technological solutions are used for
communication in cross-border judicial cooperation procedures; ensure that
exchanges of documents and data between courts/competent authorities of Member
States and between the latter and parties to proceedings are executed expeditiously
and efficiently; guarantee the legal validity of documents and commonly agreed types
of electronic signatures/seals.
The intervention logic of the initiative, linking the policy options with the objectives and
the problems that have been identified, is presented in Figure 2.
Figure 2: Intervention logic
58
The use of videoconferencing or other remote communication technology is already provided for in the
recently adopted recast of the Taking of Evidence Regulation (Article 20), which. is not intended to be
covered by this new proposal.
22
5. WHAT ARE THE AVAILABLE POLICY OPTIONS?
The policy options that have been identified include a non-legislative recommendation
and legislative action providing for optional or mandatory use of digital communication
means (although individuals and legal entities would still have the choice of using
traditional means). The options are described in detail below.
5.1. What is the baseline from which options will be assessed?
Option 0 (baseline scenario)
No action is taken to drive forward the digitalisation of cross-border judicial cooperation
and the use of digital tools to improve access to justice.
Member States’ provision of a digital channel for cross-border judicial procedures
remains voluntary and no further action is taken at EU level. Individuals’ and legal
entities’ ability to file and follow up claims electronically or through videoconferencing
tools, and judicial and other competent authorities’ ability to exchange judicial
documents electronically depend on the Member States involved, and the existence of
bilateral agreements among them, and thus remains uncertain. Member States can
continue to regulate the use of electronic signatures/seals and data protection
responsibilities in diverging ways.
23
The likely consequences for the cross-border proceedings would be that interoperability
and the lack of legal basis for digital services will remain an issue, which will prevent
improving the efficiency of cross-border judicial cooperation. The uptake of digital
communication technology would remain as demonstrated for the past use-cases.
Existing barriers would remain, and access to justice, especially in case of force majeure
circumstances would not be facilitated, which would lead to difficulties for the persons to
ascertain their claims.
5.2. Description of policy options
Option 1 (Non-legislative option)
The Commission adopts a recommendation encouraging Member States to:
enable and allow individuals and legal entities to make electronic submissions in
cross-border cases through national IT systems and accept such electronic
submissions from other Member States;
allow parties to cross-border cases and their representatives (at their request) to
participate in oral hearings by videoconference or other distance communication
technology;
incorporate standards on trust services in line with the e-IDAS Regulation; and
allow for the electronic payment of court fees.
At the same time, the Commission continues to build and expand the use of eEDES
(and the decentralised IT system for the recast Service of Documents and Taking of
Evidence Regulations) for instruments in civil, commercial and criminal matters, without
providing a legal basis for its use. The practice of allowing parties to attend hearings via
videoconference remains regulated only at national level, as do arrangements for the
recognition of electronic documents and the use of electronic signatures and seals. With
regards to the language barriers identified above, the current arrangements would
continue, meaning that where the applicable EU instruments require translation or
interpretation, the regime will remain the same.
The Commission recommendation might include guidelines, but these remain
non-binding. Nevertheless, the recommendation would set certain standards to which the
Member States may decide to adhere. That would be a step towards the establishment of
compatible national IT systems.
Option 2 (Legislative option)
A legal instrument is adopted on the use of digital tools in the context of judicial
cooperation and access to justice, including on the recognition and acceptance of
electronic signatures and seals in cross-border civil, commercial and criminal cases.
24
The instrument includes provisions establishing a secure electronic channel based on
e-CODEX (identified as the most appropriate technical solution in the impact assessment
on the Commission’s proposal for a Regulation on e-CODEX59). This channel will be
used for communication and exchanging information, data and documents between
courts and competent authorities, with and between central authorities, and where
relevant the JHA agencies and EU bodies. Provisions are also introduced in support of
communication between individuals and legal entities, on the one hand, and Member
States’ courts and competent authorities, on the other. The responsibilities of different
data controllers and processors are formally determined by clarifying that the
competent authorities under national law are to be regarded as controllers within the
meaning of Regulation (EU) 2016/679 and Directive (EU) 2016/680 with respect to
personal data processing. A reference to the general legal framework established by
Regulation (EU) 2016/679 and Directive (EU) 2016/680 is made.
Additional issues are addressed through suboptions in three areas, as set out below.
2.1 Removing barriers to cross-border judicial cooperation and introducing digital
means supporting such cooperation (addressing specific objective i and iv).
The legislative option could either require the use of the established digital
communication channel in cross-border judicial cooperation or leave it to the discretion
of the Member States.
Common provisions would ensure the acceptance and legal validity of digital documents
and evidence, and outline the data protection requirements inherent in cross-border
communication.
Suboption 2.1.a Voluntary use of digital channel
The legal instrument allows Member States’ authorities to use a common, decentralised
IT system for the purposes of cross-border communication and exchange of information,
data and documents with each other.
Suboption 2.1.b Obligatory use of digital channel
The legal instrument requires Member States’ competent authorities (and central
authorities established under EU law) and, where relevant, JHA agencies and EU bodies
to use a common, decentralised IT system in communication with other Member States’
authorities in the context of judicial cooperation under the relevant EU law.
Such an obligation could be subject to well-defined and justified exceptions, such as
force majeure, technical unavailability and the transportation of material that cannot be
transferred via digital means (e.g. blood samples).
59
SWD(2020) 541 final
25
This option is based on the assumption that the IT systems for exchanges of EIOs and the
service of documents/taking of evidence, as developed by the Commission, will be
extended to cross-border judicial communication. Member States will be able to connect
their national IT system to these or to use those developed by the Commission free of
charge.
2.2 Introducing legal and technical measures supporting access to justice in
cross-border cases (addressing specific objectives ii, iii and iv)
As regards access to justice, the legislative proposal would introduce legal and technical
measures governing digital communication between individuals and legal entities, on the
one hand, and Member States’ competent authorities, on the other. This would include
videoconferencing in cases other than taking of evidence in civil cases (which is already
regulated in the Taking of Evidence recast regulation), as a means of access to justice.
In the context of criminal proceedings, adequate safeguards of the right to a fair trial
must be ensured, such as:
the right to a confidential consultation with a lawyer (‘Access to a Lawyer
Directive’60) – the confidential interaction between lawyers and suspects or
persons accused during any questioning must be ensured. The lawyer must be in a
position personally and effectively to participate in any questioning. Speaking to a
lawyer by videoconference cannot replace in-person counselling;
the right to be present (‘Presumption of Innocence’ Directive61) – remote hearings
should not be imposed without the consent of the suspect or accused person62; and
the right to protection (Victims’ Rights Directive63) – in order to avoid further
victimisation, the detailed arrangements for hearings by videoconference, the
location where the victim is heard, the presence of adequate in-person support and
other factors should all be taken into account.
In both civil and criminal cases, the parties’ participation in oral hearings via
videoconferencing or other distance communication technology would be subject to
60
Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right
of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the
right to have a third party informed upon deprivation of liberty and to communicate with third persons
and with consular authorities while deprived of liberty (OJ L 294, 6.11.2013, p. 1).
61
Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the
strengthening of certain aspects of the presumption of innocence and of the right to be present at the
trial in criminal proceedings (OJ L 65, 11.3.2016, p. 1).
62
The European Court of Human Rights has laid down conditions for defendants’ participation in the
proceedings where they do not consent to a hearing via videoconference;, see Marcello Viola v Italy
(Case No N45106/04, 5 October 2006).
63
Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing
minimum standards on the rights, support and protection of victims of crime, and replacing Council
Framework Decision 2001/220/JHA (OJ L 315, 14.11.2012, p. 57).
26
the same standards as in-person hearings as regards interpretation and the conduct of the
proceedings in a language that the party understands64.
Common provisions would ensure the acceptance and legal validity of electronic
documents and evidence, and outline specific data protection requirements for
cross-border communication.
To facilitate access to justice, provisions would be introduced to allow for the online
payment of court fees in EU cross-border cases.
Suboption 2.2.a Voluntary acceptance of electronic communication
The legal instrument does not oblige Member States to allow electronic communication
between individuals/legal entities and competent authorities. National law determines
whether parties can take procedural action through digital means. Member States are free
to decide whether:
to accept electronic communication from individuals/legal entities;
to develop a national solution for such submissions; or
to use an EU-developed solution (e.g. ‘small claims submissions’ pilot through
the e-Justice portal).
This option does not provide a legal basis for parties’ participation in oral hearings in
cross-border cases by videoconference. The development and use of such tools remains
at the discretion of the Member States involved.
Suboption 2.2.b Obligatory acceptance of electronic communication
The legal instrument obliges Member States to accept electronic communication between
individuals/legal entities and competent authorities. Such communication takes place via
an access point to be established on the e-Justice portal65 or through portals at
Member-State level. This allows (but does not oblige) individuals/legal entities to file
claims and communicate with courts (or other competent authorities) electronically in the
context of the relevant EU law procedures. The access point is a user-friendly tool
accessible online at any time, in all Member States and in all EU languages, and is
equipped with online guidance for filling in standardised forms and making submissions.
Traditional, e.g. paper-based, means of communication are maintained for
individuals/legal entities to use if they prefer.
64
For criminal proceedings, see Directive 2010/64/EU on the right to interpretation and translation
(OJ L 280, 26.10.2010, p. 1).
65
The access point would be particularly useful for making submissions to courts or competent authorities
in Member States that have not established national portals.
27
This suboption also provides a legal basis for parties to cross-border cases, and their
representatives on request, to participate in oral hearings by videoconference or other
distance communication technology, subject to:
the availability of such technology;
the court’s discretion, depending on the circumstances of the case; and
the parties’ consent.
In this case, the conduct of the oral hearing via videoconference or other distance
communication technology is governed by the rules and procedures applicable to
videoconferences for domestic cases.
2.3 Recognition and acceptance of electronic signatures and seals (addressing specific
objective v)
For the purpose of the legal instrument, the use of electronic signatures and seals needs to
be considered.
Suboption 2.3.a Non-regulation of trust services
The legal instrument does not regulate the use of electronic trust services in the context
of cross-border judicial cooperation and access to justice, allowing Member States to:
develop their own methods and standards with regard to the use of electronic
signatures and seals; and
accept or reject communication from other Member States through the secure
decentralised IT system, depending on national law and bilateral/multilateral trust
agreements.
Suboption 2.3.b Regulation of trust services
The legal instrument regulates the use of e-signatures and e-seals by explicitly referring
to the e-IDAS Regulation66, which would be needed in order to ensure the application of
e-IDAS for communication in cross-border judicial procedures. It also clarifies the type
of electronic signature or seal to be used for cross-border judicial procedures, i.e. simple,
advanced or qualified by relying on the trust framework established by e-IDAS.
In this way, harmonised arrangements are set out for ensuring the admissibility and
recognition of electronic signatures and seals where digital technology is used in the
context of judicial cooperation or access to justice.
66
Similarly to Article 5(2) of Regulation (EU) 2020/1784 and Article 7(2) of Regulation (EU) 2020/1783–
“The general legal framework for the use of qualified trust services set out in Regulation (EU) No
910/2014 shall apply to the documents to be served, requests, confirmations, receipts, certificates and
communications transmitted through the decentralised IT system.”;
28
5.3. Options discarded at an early stage
A non-regulatory option involving a promotion campaign on the use of digital tools and
e-CODEX for the purposes of communication in cross-border judicial procedures has
been discarded. Such a campaign was considered not to constitute a real alternative to
regulation and could in any case be carried out as part of the baseline scenario.
The option of establishing a centralised IT system for the electronic exchange of
information and data was also discarded. While it may be technically feasible to leverage
an existing centralised IT solution, such as the Internal Market Information (IMI) system,
the Commission considers that it is not appropriate. On the other hand, e-CODEX,
which was chosen as the most suitable solution for cross-border exchanges, is
decentralised by nature. In addition, the use of a centralised IT system would be difficult
to justify from the point of view of proportionality and subsidiarity, as all information,
data and documents would be stored on Commission servers or the servers of the entity
managing the system (e.g. eu-LISA), while these would not be party to the exchange.
Moreover, this could involve a single point of failure as all data is stored in one place
compared to a decentralised system where data is stored by each Member State. It would
also render more complex the integration with current and future national systems and
their evolution alongside the centralised system. The development of such a system
would require separate efforts or technical modifications (e.g. to the IMI system).
6. WHAT ARE THE IMPACTS OF THE POLICY OPTIONS?
The impacts of the policy options are discussed below.
The detailed analysis is presented in Annexes 1, 4 and 9, which set out the data sources,
methodology and standard cost model computation that have been used.
Option 0 – Baseline scenario
If no action is taken, the objectives outlined in Section 4.2 will not be achieved, as the
use of the digital channel of communication will remain voluntary for each
Member State and there is no indication that the current limitations could be
offset.
Concerning economic impacts, the status quo will be maintained. The cost of
communication will remain at an average of EUR 10.5567 per transaction68. The average
time for delivering a first-class letter in the EU is 2 days (48 hours)69 and this has been
taken as an average for the time it takes to send a letter from one Member State to
another Member State. However, anecdotal evidence70 suggests that it actually takes
67
See Annex 9, Table 15.
68
By ‘transaction’, we mean the sending of a package of documents cross-border with acknowledgement
of receipt from an individual, legal practitioner or a court in another Member State.
69
See Annex 9.
70
See study supporting this impact assessment.
29
much longer – between 3 and 15 days depending on the destination. We have used an
average of 5 days per transaction. The time taken to process paper forms (i.e. registration,
archiving, making copies, scanning) was estimated at 1.5 hours per transaction (45 min
for sending and 45 min for receiving)71. Each transaction involves an average of 19.65
paper pages (the average length of the template forms for the cross-border instruments in
question), at a cost of EUR 0.2472. We have assumed that at least three copies of each
document are required during proceedings under each of the instruments: one that is sent,
one kept in the file and one exchanged with the competent authority of the other Member
State.
This will result in maintaining the status quo in terms of annual costs and transaction
times in cross-border cooperation at EU level73, maintain the current economic impacts
for individuals, legal entities, legal professionals and courts/authorities:
EUR 32 472 900 for communication using physical formats (out of which EUR
5 697 000 for the individuals, legal entities);
15 390 000 days for communication by post or equivalent services (out of which
2 700 000 days for the individuals and legal entities);
192 375 days in administrative overheads linked to paper processing which
translates to 874 person-years in processing effort in courts; and
181 448 100 standard A4 80g paper pages printed (out of which 31 833 000 for
the individuals and legal entities), at an overall average cost of EUR 2 216 160.
As regards fundamental rights, the barriers to access to justice and the challenges to
cross-border judicial cooperation, as identified in Section 2, will remain. This refers to
the inability of individuals and legal entities to ascertain their rights, specifically their
right to seize authority or to be heard in person, where force majeure circumstances
occur. Additionally, the length of the proceedings will remain unchanged and thereby
affect the right to an effective trial.
The social impacts of the use of communication technology can be significant. The
digital communication channel may improve public confidence in justice systems by
speeding up access to justice and facilitating efficient functioning of the competent
authorities. In the baseline scenario, these impacts would depend on the rate of uptake of
the technology. It was demonstrated in Section 2 that the rate of uptake is low without a
harmonised approach being implemented. For the baseline scenario no tangible change
on the impacts could be expected for individuals and legal entities.
Under the baseline scenario paper based communication would continue, as would travel
for the purposes of hearing. The above mentioned estimate of paper use per procedure
would be maintained, together with the traveling. In particular, the main environmental
impacts pertain to the use of non-renewable resources, due to paper-based
71
See Annex 9, - Table 15
72
See Annex 9.
73
Ibid.
30
communication and the transport of letters/parcels, on the one hand, and parties attending
hearings in person, on the other hand. The environmental impacts of both elements are
expected to increase in line with the likely rise in the number of cross-border
proceedings.
It could be clearly concluded from the consultation activities that the stakeholders and
Member States are overwhelmingly in favour of adopting a legislative act establishing a
digital communication channel to be used on a mandatory basis by the courts and
competent authorities. Providing individuals and legal entities with the possibility to
communicate with courts and competent authorities electronically, while maintaining the
paper communication and the possibility for remote hearings also enjoy a broad support
among the consulted stakeholders. Legitimate concerns in terms of safeguarding
fundamental rights, data protection, cybersecurity, protection of vulnerable groups, are
considered under the proposed policy options.
Option 1 – Non-legislative option
The non-legislative option would involve action to persuade Member States to use
e-CODEX for cross-border judicial cooperation and access to justice. A Commission
recommendation could encourage them to follow a harmonised approach with regard to
the use of electronic communications, including videoconferencing, electronic
documents, electronic seals and signatures. Given the voluntary nature of this approach,
Member States would be free to develop digital tools on their own. Such action could be
technically and operationally feasible, and cost-effectiveness would depend on the
individual Member States’ approach to digitalisation and on their needs and resources.
As regards the extent to which the option fulfils the objectives of the proposal, however,
a recommendation would not guarantee any actual implementation of digital tools
for communication, not to mention the interoperability of the digital channel, the
acceptance of electronic documents and common standards of trust services. Therefore,
any impacts of this option depend on the number of Member States which will follow the
Commission recommendation and will adopt implementing measures for digital
communication between the competent authorities and with the individuals and legal
entities in the context of cross-border judicial procedures.
The current arrangements have shown that the voluntary approach to the digitalisation of
the judiciary is not sufficient to ensure the availability of digital tools in all Member
States so as to make them interoperable and readily available to all actors. Of the
respondents to the questionnaire for national stakeholders, 82% saw voluntary
participation as a ”relevant” or ”highly relevant” hurdle to the use of digital solutions in
judicial cooperation. The approach resulted in a fragmented map of justice related digital
services in the EU and there is no guarantee that a recommendation would improve the
situation. The study supporting this impact assessment clearly demonstrates that
differences between national IT solutions represent a barrier to cross-border judicial
cooperation, which 57% of respondents considered as ”highly” problematic and another
23% as problematic “to a limited extent”.
31
Economic impacts: As regards the functioning of the internal market and the impact on
businesses, SMEs included, it has been shown (see the 2021 EU Justice Scoreboard
findings in Section 2.1.1) that company’s growth is closely linked to the effective
operation and the efficiency of the judiciary. Such benefits cannot be guaranteed with a
non-legislative option.
Transaction costs and times in cross-border judicial cooperation, as presented in the
baseline option, will start to decrease only when the first two Member States put in place
interoperable IT systems fully supporting communication or if all Member States are
fully digitising one procedure74. The voluntary initiatives of the past decade show a
coverage of at most 1% of total transactions being carried out by digital means75. This
has not been sufficient to produce any tangible cost savings, as most communication has
been by traditional means. For the purpose of this assessment we will be using the
calculation of the yearly benefits of digitising the European Payment Procedure as
presented in the Impact Assessment of e-Codex. This is consistent with the current level
of participation76 in the e-Codex pilots which shows a maximum number of 6 Member
States participating in a certain procedure. Therefore, it is safe to assume that any further
voluntary cooperation can at best be approximated in terms of benefits with one
procedure like the European payment order being fully digitised.
Based on tables 12 and 16 it will result that the costs for Member States will slightly
decrease to:
EUR 32 174 616 for communication using physical formats;
15 387 525 days for communication by post or equivalent services;
The e-Codex cost model do not offer us any indication of the savings in administrative
costs or in paper. Impacts on fundamental rights: Digital communication cannot be
effective and efficient in “asymmetrical” situations, i.e. it works only between entities
that both have interoperable digital resources. If only one interlocutor has the necessary
resources, communication has to take place in the traditional way. A particular cross-
border instrument needs to be supported by the relevant digital tools for electronic
communication to be possible. Otherwise, this would also jeopardise the effectiveness of
voluntary cooperation.
With regards to the social impacts, the status quo would be maintained in case Member
States do not follow the Commission recommendation. On the contrary, where Member
States adopt digital technologies in line with the Commission recommendation, a positive
social impacts such as increased public confidence in justice systems, improved access to
justice and more efficient functioning of the competent authorities and the justice system
74
Table 16 yearly benefits of the European Payment Procedure
75
Currently, only the e-CODEX pilot implementations are providing for cross-border digital exchanges.
This leads to the assumption that less than 1% of the total transactions in cross-border cases are
digital..see tables 12 and 16
76
Table 17 – Participation in e-Codex Pilots
32
as a whole, is to be expected. However, with an increased adoption of digital
communication technology, the digital gap between those with access to such technology
and others may be widened.
With EU-wide adoption of electronic means of communication, the use of the digital
channel can be expected to have a positive environmental impact, due to the use of less
paper and postage. While the production and operation of equipment will consume
energy, the overall impact on the environment would be positive. In case
videoconferencing or other means of distance communication technology are employed
for oral hearings, that would lead to reduction of carbon emissions, because
videoconferencing may produce only 7% of the carbon emissions caused by physical
meetings77. Electronic communication has a smaller carbon footprint than equivalent
standard mail (50 to 90% less per transaction)78. With lower rates of uptake of digital
communication technology, there will be environmental impacts, but they would be
closer to the status quo.
The impact to individuals, legal entities (including businesses), legal professionals,
judges and Member States as stakeholders would depend on the uptake of digital
communication technology with full adoption having an impact as described in Annex 1.
However, considering the current trend of uptake, full adoption is not likely. These in
addition to the analysis in Annex 1, would be the main impacts on the stakeholders.
Option 2 – Legislative option
Under the legislative option, a digital channel for cross-border communication would be
established. Previous e-CODEX projects (e.g. eEDES, iSupport) have shown that this is
technically and operationally feasible. The additional legal elements associated with this
option (e.g. assurance that electronic documents and evidence sent through the channel
would not be denied legal effect) ensure that the receiving Member State’s authorities
would accept digital communications as procedurally relevant. This would improve
access to justice and the enjoyment of fundamental rights. In addition, enabling parties to
pay court fees using the same functionalities as would be available for communicating
with the competent authorities would be less time-consuming and more inclusive than the
current situation, where they may need to visit a bank or a court in person.
As regards economic impact, the obligation to set up a digital channel would require
new investment from the Member States to develop the necessary infrastructure to
interact with e-CODEX. The scale of the investment would depend on their current
degree of digitalisation, their level of involvement in the e-CODEX project, the
interoperability of current solutions and the scope for electronic transmissions under
national law. However, in the long run, the digitalisation of justice would significantly
77
Impact assessment on the Taking of evidence proposal - EUR-Lex - 52018SC0285 - EN - EUR-Lex
(europa.eu).
78
ibid
33
reduce the costs incurred by national justice systems in cross-border procedures79.
Furthermore, it would positively influence the process of digitalisation at national level.
Assuming that the IT systems for exchanges of EIOs and the service of documents/taking
of evidence, as developed by the Commission, will be extended to cover communication
in cross-border judicial procedures, the total one-off cost for extending the eEDES and
service of documents/taking of evidence systems would be EUR 18.7 million over 5
years. This cost will be covered by the EU budget through the Digital Europe Program
and the Justice Program.
The costs for the Member States will be rather limited: EUR 8 100 000 per year i.e. EUR
300 000 per year per Member State. In the first 2 years, the cost of installation will EUR
100 000 per year per MS. This amount include hardware and the manpower to configure
it. The remaining EUR 200 000 are necessary for support to the increasing number of
users. As of the third year, there are no hardware and installation costs, but only cost for
user support and maintenance of the system. This is estimated at EUR 300 000. Since the
solution is web-based, there are no additional costs for courts and competent authorities
since there is only one instance of the software to be installed at national level.
The cost per digital transaction80 is EUR 2.95. The average overall yearly saving at EU
level is EUR 23 372 900 in postage costs and EUR 2 216 160 in paper costs amounting
to a grand total of EUR 25 589 060. The individuals and legal entities will be saving
EUR 4 098 600 in postage costs and EUR 388 800 in paper costs.
The Member States will be gaining EUR19 274 300 per year in postage cost and EU
1 827 960 in postage costs. The overall saving of EUR 21 002 260 are offsetting the EUR
8 100 000 costs for installation, maintenance and user support that the MS will have to
cover for running the IT system at national level.
The average posting time will be reduced to 0 resulting in an overall yearly reduction of
the duration of the procedures by 15 389 999 days. The the individuals and legal entities
will be gaining 2 700 000 days in average posting time.
874 person-years will be gained in processing effort at court/competent authority level.
181 448 100 A4 standard 80g printing paper pages will be saved out of which 31 833 000
by individuals and legal entities.
The other three measures refer to removing legal barriers. For instance making the oral
hearings by videoconference legally possible does not entail any obligation of the courts
to provide the technical means for it. Therefore, even though not travelling for a hearing
would have positive environmental impact, cost savings for the parties and positive
79
Ibid.
80
Table 12
34
impact on fundamental rights due to the increased accessibility of the procedure and
shortening of the delays, video-conference will remain subject to the availability of the
equipment, the discretion of the court and the consent of all parties to the procedure. This
is why the costs of equipment or travel savings were not taken into account in the
cost/benefit analysis.
With its potential to cut substantially the cost of participating in cross-border cases, the
initiative would also directly benefit individuals and legal entities (including SMEs)
covered by the various EU civil law instruments. Individuals’, legal entities’ and legal
practitioners’ use of these instruments (e.g. European small claims procedure and EPO)
is also likely to increase thanks to the new electronic access point on the e-Justice portal.
While this option will probably have positive economic impacts for certain categories of
business, it will probably reduce the revenue of others. More specifically, the
introduction of electronic channels of communication might have negative economic
impacts on providers of postal service, paper and office supplies, transport services, etc.
The revenue of such businesses is expected to decrease marginally due to the use of a
digital channel, videoconferencing and other means of distance communication. A
comparison of prices charged by transport service providers in three Member States for
long-distance bus, train and air journeys shows that cross-border travel is around 17%
more expensive than domestic travel81. With the availability of an electronic channel,
parties will probably travel to hearings only within their own country or not at all. This
will probably result in a loss of revenue for transport service providers.
Conversely, increased revenue is expected for providers of IT consulting services,
internet and telecommunications services, cloud storage services and archiving services,
and manufacturers of videoconferencing and other remote communication equipment82.
Courts would probably have to spend around EUR 36 000 a year on videoconferencing83.
Since there are about 6 000 courts in the EU84 (of which a limited number already have
videoconferencing facilities), videoconferencing equipment manufacturers and service
providers could gain as much as EUR 216 million across all Member States, if all courts
were to be equipped with at least one videoconferencing facility.
The social impacts are two-fold: a positive impact of introducing the digital
communication channel would improve public confidence in justice systems, access to
justice and the efficient functioning of the competent authorities and the justice system as
a whole. A negative social impact is the potential widening of the digital divide.
Therefore, the initiative would need to ensure equality between individuals who prefer to
use the paper channel and those who opt for digital means. The initiative would
safeguard the needs and interests of individuals who are not digitally skilled by
maintaining the current communication channels.
81
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52018SC0285
82
EUR-Lex - 52018SC0285 - EN - EUR-Lex (europa.eu)
83
Ibid.
84
European Commission for the Efficiency of Justice (an initiative of the Council of Europe), 2014.
35
More efficient judicial cooperation and facilitated access to justice have the potential to
increase the number of cross-border cases, which in turn will lead to higher workload for
the courts. Such possible risk cannot be supported by the existing data and may only be
presumed. Nevertheless, it should be noted that the initiative, and in particular the
possibility for the parties to communicate with the competent authorities electronically
and the mandatory use of the digital communication channel between the authorities, has
the overwhelming support of the Member States. It could be concluded that Member
States do not perceive the possible increase of the number of the cases as an obstacle to
the digitalisation of cross-border procedures and attribute more value to the protection of
fundamental rights, shortening the procedures, alleviating administrative burden (with
minimum 874 person/years) and facilitating the processing of the cases. Therefore, the
Impact assessment does not evaluate the possible risk of increased number of cross-
border cases as a negative impact.
Other impacts under option 2, such as environmental and fundamental rights impacts, are
suboption-specific.
Impacts of suboptions 2.1.a and 2.1.b (voluntary vs mandatory use of digital channel)
Concerning the use of electronic means of communication in cross-border cases between
the competent authorities, the two suboptions proposed are to make such communication
voluntary or mandatory. In case the legislative option would not impose the obligation to
communicate electronically, the use of the digital channel would be left to the discretion
of the Member States, and the frequency with which it would be used in cross-border
cases could not be guaranteed. On the other hand, provisions which would impose the
use of the digital channel as mandatory would come at no extra cost (as the channel
would be established), but would ensure that the most efficient communication tools
available are used in cross-border judicial proceedings. This would alleviate the
competent authorities’ administrative burden and shorten judicial proceedings. Since the
communication channel will make it possible to identify the competent court or authority
for each instrument, the risk of addressing the wrong recipient, and thus the risk of
‘non-competence’ refusals, would be reduced.
Regarding the impact on fundamental rights, shortening proceedings would bring
tangible benefits for individuals, legal entities (including SMEs) and legal practitioners,
as timely proceedings are an essential element of the right to a fair trial 85. This was
confirmed by the study supporting this impact assessment, with 57% of questionnaire
respondents stating that regulating digital communication would have a ‘very positive’
effect on reducing administrative burden and an additional 21% stating that the impact
would be ‘rather positive’. Similarly, 45% and 38% of respondents respectively were of
the opinion that such an initiative would impact the duration of judicial proceedings
‘very’ or ‘rather’ positively.
85
Article Art47 of the Charter of Fundamental Rights in the European Union stipulates that everyone is
entitled to a fair and public hearing within a reasonable time.
36
The use of the digital channel can be expected to have a positive environmental impact,
due to the use of less paper and postage. These environmental impacts relate mainly to
the adoption of electronic means of communication and a likely increase in the use of
videoconferencing and distance communication instead of in-person hearings. While the
production and operation of equipment will consume energy, the overall impact on the
environment would be positive. Videoconferencing and other means of distance
communication may produce only 7% of the carbon emissions caused by physical
meetings86. Electronic communication has a smaller carbon footprint than equivalent
standard mail (50-90% less per transaction).
Impacts of suboptions 2.2.a and 2.2.b (voluntary vs mandatory acceptance of electronic
communication)
Obliging Member States to accept electronic communication from individuals and legal
entities would have a positive impact on access to justice, by providing additional, faster,
more secure and more reliable means of communicating with courts and thus shorter
judicial proceedings.
Allowing individuals and legal entities to make online applications would not only
eliminate potential travel costs and difficulties in accessing infrastructure (courts, post
offices, etc.), but would make legal redress more accessible to all, including victims of
crime, people in remote and rural areas, and vulnerable individuals.
Obliging Member States to accept electronic communication would have a positive
impact on SMEs and companies that already operate in a digital environment, by
allowing them to use similar digital tools when they communicate with courts/competent
authorities as those they already use day to day. If the acceptance of electronic
communication remains voluntary, the positive impact and legal certainty will be
reduced, as there is no guarantee that Member States will allow such communication.
To ensure parties’ autonomy and the rights of those without access to modern
infrastructure, individuals and legal entities would be free to opt for paper-based
communication. This would also mitigate the risks of digital divide and exclusion,
which raise concerns among the stakeholders.
The concerns raised by stakeholders with regards to the right to a fair trial and effective
legal remedy, the equal opportunity for both parties to make their case, the right to have
knowledge of and to comment on all evidence and observations in adversarial
proceedings and the right to a public hearing in criminal proceedings, not interfering with
the rights of the defence, including access to a lawyer and the case file, are general
concerns rather than ones entirely specific to this initiative. The legislative option would
on one hand ensure easier access to justice and judicial cooperation, thereby positively
impacting the above concerns, while on the other hand maintaining traditional
86
https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52018SC0285
37
communication channels. However, it should be considered that the aim of the initiative
is not to interfere with courts discretion in safeguarding the procedural rights of the
parties.
Implementing videoconferencing tools or other distance communication technology
would have a similar impact, as it may eliminate the need to travel in some cases and
make courts more accessible. This is expected to have positive environmental impacts,
in view of the reduced traveling. At the same time, it would be beneficial for the effective
protection of fundamental rights. In the context of force majeure events, such as the
COVID-19 pandemic, the videoconferencing tools could enable parties to participate in
hearings, thus ensuring the right to a fair trial. To avoid negative impacts on the right to a
fair trial, safeguards would have to be provided for vulnerable individuals in case
videoconference is used.
For example, where children are involved in criminal proceedings, they may have
difficulties in understanding and following a procedural act. Therefore, the
holder of parental responsibility or another adult (as appropriate) should be
informed as soon as possible about the use of videoconferencing or other digital
communication technology. Specific technical assistance should be ensured
during the hearing for older people who are insufficiently familiar with modern
communication technology. Also, people with mental disorders or intellectual
incapacities may require special assistance in a digital environment.
Remote hearings in EAW cases would, for example, enhance trust in the system of
the executing state and support the operation of the European supervision order,
as videoconferencing would allow the presence (next to the suspect or the
accused and their defence lawyer) of the judicial authorities of both the issuing
and the executing state. Information on the requested person’s personal
circumstances (e.g. family, home, work) could easily be shared with the issuing
authority. The same goes for information on possible alternatives to pre-trial
detention in the executing state, e.g. allowing the person to continue working or
caring for family while awaiting trial in the issuing state. Thus, unnecessary
surrender under the EAW would also be avoided.
The use of videoconferencing or other remote communication technology would
also eliminate the risk of further victimisation of victims of crime. For instance,
the use of digital tools could reduce their contacts with the offender and limit
unnecessary interaction with competent authorities. However, it must be ensured
that each victim’s rights are fully respected in accordance with their individual
needs.
Impacts of suboptions 2.3.a and 2.3.b ((non-)regulation of trust services)
38
If the acceptance and recognition of electronic signatures and seals are not regulated, the
development of trust service standards will remain within the remit of the Member
States, who will therefore decide whether signed communication originating from other
Member States is to be accepted.
This would result in a negative impact on fundamental rights. Any uncertainty as
regards the acceptance of communication and the required type of electronic signatures
and seals would detract from the legal certainty and thus individuals’ and legal entities’
willingness to assert their rights via digital means of communication and they may feel
obliged to incur travel or other associated costs.
On the other hand, regulating the acceptance of electronic communication would result in
greater legal certainty and a more secure business environment.
No specific environmental impacts were identified for this particular sub-option.
In addition, suboption 2.3.b would lead to synergy with the digital identity framework,
which would support identification of the parties for the purposes of making submissions
or participating in remote hearings.
7. HOW DO THE OPTIONS COMPARE?
In this section, we compare the policy options and suboptions on the basis of the
following four criteria:
coherence with the existing legal framework at national and EU levels; and
effectiveness, in terms of the potential to achieve the general and specific
objectives of the initiative;
efficiency, in terms of the probability of achieving cost reductions in cross-border
judicial cooperation and access to justice in cross-border cases;
EU added value, as compared with what could be achieved by Member States
acting alone, and whether the objectives can be met more (cost-) efficiently at EU
level.
The results of the analysis are summarised in the table below and explained in further
detail in this section. The table should be read as follows: ‘0’ if no new impact compared
to the status a quo is expected; ”-” if negative impacts are likely to arise; ”- -” if the
option will result in very negative impacts; ”+” pointing to positive impacts; ”++”
referring to very positive impacts; and ”+++” to the best performance among the options.
39
Table 1 - Policy option comparison table
Optio Optio Option 2 (suboptions)
n0 n1
2.1.a 2.1.b 2.2.a 2.2.b 2.3.a 2.3.b
Voluntary Obligatory Voluntary Obligatory Non- Regulation
use of use of acceptance of acceptance of regulation of trust
digital digital electronic electronic of trust services
channel channel communication communication services
from individuals from individuals
/ legal entities / legal entities
Coherence - + ++ +++ ++ +++ ++ +++
Effectiveness
Achievement of 0 + ++ +++ ++ +++ ++ +++
objectives
Social / 0 + ++ +++ ++ +++ ++ +++
fundamental
rights impacts
Economic 0 + + +++ ++ +++ ++ +++
impacts
Environmental - + ++ +++ ++ +++ ++ +++
impacts
Efficiency 0 + + +++ ++ +++ ++ +++
EU added 0 + ++ +++ ++ +++ ++ +++
value
Under both the baseline scenario and the non-legislative option, Member States would
use the digital channel for cross-border judicial cooperation in civil, commercial and
criminal cases on a voluntary basis only. The non-legislative option could be more
effective and efficient, mainly as a result of a Commission recommendation leading the
Member States to digitalise their justice-related services more quickly and with a higher
degree of technical and legal interoperability. While a recommendation could set out a
harmonised approach to the adoption of e-CODEX-based tools (and common standards
on trust services and the acceptance and recognition of electronic documents), its
non-binding nature would mean that the Member States may not uniformly follow its
principles. This is especially true for Member States that have already implemented
national solutions as regards the digitalisation of judicial cooperation, as well as for those
in which such solutions are not yet in place. Consequently, fragmentation (and thus
inefficiencies) could be expected, as EU-wide coordination on the choice of instruments
to be digitalised and IT tools and standards to be used would be difficult.
As concerns coherence, in the light of the above, the baseline scenario and the
non-legislative approach could have negative impacts overall. This because the use of
digital tools for cross-border judicial cooperation and access to justice in cross-border
cases would result in some Member States joining voluntary initiatives (e.g. e-CODEX
and eEDES) and others not being involved at all. This would probably reinforce or
extend the current tendency to rely on the paper channel, which results in financial costs
and negative environmental impacts. Also, the use of unsecure electronic communication
would probably continue, which might raise privacy and data protection concerns.
40
The legislative option would provide a digital communication channel for cross-border
judicial cooperation and access to justice, and arrangements for the acceptance and
recognition of electronic documents, and the online payment of fees. As a result, all
Member States would have at their disposal the same tool, which would ensure secure,
reliable and efficient communication. The tool would be adapted to the needs of the
judiciary, as it would be based on e-CODEX, which has been developed specifically for
the justice sector. In terms of coherence, the legislative option would have a positive
impact, as an initiative on the digitalisation of justice would seek to provide a common
framework for the digitalisation of the Union instruments in the civil and criminal area,
and ensuring that they are treated under a common regime throughout the Member States
would require legislative action so as to guarantee harmonisation.
In terms of effectiveness, the legislative option compares favourably to the baseline
scenario and the non-legislative option. The data presented in section 2 allows us to make
a limited projection of the expected results. However, the data still indicates that due to
maintaining the status quo by the baseline option, and the voluntary element attached to
the non-legislative option, the legislative option is the only one which ensures the
achievement of the initiative’s objectives. However, whether the objectives could be fully
achieved depends on the suboptions under the legislative option:
how much would Member States’ authorities use the digital communication
channel?
would Member States accept electronic communication from procedural parties
(including hearings conducted via videoconferencing)?
would the same standards be applied to trust services?
Requiring Member States to use the digital channel in all instances of judicial
cooperation covered by the relevant EU legal framework is the only way of guaranteeing
its use. A voluntary approach would give rise to an economic impact in terms of resource
allocation to develop the channel, but no significant additional assurance as to its use (as
compared with the baseline scenario and the non-legislative option).
While one Member State’s voluntary use of the digital channel could improve the
functioning of the internal market, the enjoyment of fundamental rights and the capacity
of the judiciary to process a volume of cases which is assumed to increase proportionally
with the number of citizens and businesses finding themselves in a cross-border situation,
there will always remain the possibility of another Member State’s authority choosing to
reply using paper-based communication, thus limiting the benefits of digitalisation.
The establishment of EU access point which allows the use translated and harmonised
forms, will be the easiest way for citizens and businesses to access justice related
services. We assume that easier access to such services will result in an increased number
of cross-border cases, due to the fact that barriers to initiating a cross-border cases (such
as the need to appoint a lawyer at the forum Member State, the ned for translation, the
41
use of postal services) will be removed. Requiring Member States’ authorities to accept
electronic communication from individuals and legal entities, regardless of whether it is
made through the EU access point or a national platform, will ensure the use of the
digital route in this context and the elimination of the above mentioned barriers. In the
absence of such a requirement, there would be no legal certainty regarding the use of the
digital channel and individuals/legal entities may therefore be reluctant to use this route.
As access to justice depends partly on individuals’ and legal entities’ ease of access to
judicial authorities, limiting the scope for quick and efficient communication would have
a negative social impact and may impair the protection of fundamental rights, particularly
in the case of vulnerable groups.
The same holds for the use of videoconference tools for oral hearings. By failing to
provide a legal basis for this, the baseline scenario would leave the parties without the
option of requesting the use of videoconferencing and the courts without a legal basis to
set up remote hearings. The parties would therefore have fewer possibilities to participate
in procedural action before the courts. This could negatively impact their procedural and
fundamental rights and lead them to incur travel costs. In contrast, a legislative proposal
providing for a legal basis for videoconferencing would ensure the existence of EU-level
rules in this area, eliminating conflicts between possibly disparate national provisions
and helping to overcome the consequences of the lack of such rules. Only binding
legislation would ensure that parties in all Member States can participate in oral hearings
via videoconference; this would not be the case with a Commission recommendation.
As regards the regulation of trust services (legislative option with regulation of
common standards of trust services) or their non-regulation (common to the baseline
scenario, the non-legislative option and the legislative option with no regulation of
common standards), only the adoption of common standards would guarantee the
acceptance and recognition of electronic seals and signatures from other Member States.
Trust services are an essential component of a well-functioning digital communication
infrastructure, because, even where all Member States agree to accept a form of digital
communication, authorities may still refuse it if the standards for the identification of the
sender are not compatible or if the trust service assurance level is deemed inadequate.
The same applies to the identification of parties in the context of videoconferencing.
A Commission recommendation would encourage Member States to adopt standards on
the use of the trust services under the e-IDAS regulation. However, the adoption of
national measures may lead to a non-harmonised approach and disparities, putting a
question mark over the acceptance of electronic communications.
Under option 2 and suboption 2.3.b, the legal instrument would introduce provisions on
the use of e-signatures and e-seals as regulated under the e-IDAS Regulation. The
introduction of such provisions and common standards for the recognition of e-signatures
and e-seals would strengthen legal certainty for individuals, companies and public
administrations.
42
In this context, a common set of standards is necessary to ensure seamless judicial
cooperation and access to justice.
In terms of efficiency, the non-legislative option would generate moderate costs. These
will be offset by a range of indirect positive economic impacts as outlined in section 6.
However, the legislative option can be expected to have significant positive economic
effects on certain categories of business, whereas it will affect the revenue of other
businesses. Overall, a range of benefits would likely arise: time savings, decreased legal
fees, decreased travel costs, decreased labour costs etc. No impact other than the
maintaining of the status quo can be expected under the baseline scenario.
In terms of the EU added value of the legislative option, it would be higher than it can
be expected from the baseline scenario of the non-legislative option, given that by means
of an EU instrument (allowing or requiring the use of the digital channel), a harmonized
regime would be created in the Member States. This would likely tackle the current legal
fragmentation and gaps across the concerned EU instruments and, thus, enhance access
to justice and the resilience and the efficiency of justice in cross-border cases.
8. PREFERRED OPTION
In the light of the above comparison, the preferred option is the legislative option
(option 2), with suboptions 2.1.b, 2.2.b and 2.3.b; i.e. in summary:
requiring the use of the established digital channel for communication in
cross-border judicial cooperation;
requiring Member States’ courts and competent authorities to accept electronic
communication from individuals and legal entities via the access point on the
e-Justice portal or via national portals. Individuals and legal entities would remain
free to choose between electronic and paper-based communication;
providing a legal basis for parties and their representatives to participate in oral
hearings via videoconference or other distance communication technology tools;
laying down provisions on e-signatures and e-seals through an explicit reference
to the e-IDAS Regulation;
regulating the online payment of court fees; and
establishing the responsibilities of different data controllers and processors.
In cumulative terms the effects of the preferred option are expected to yield the following
benefits: i) more accessible tools for initiation of cases and undertaking of procedural;
43
actions for citizens and businesses and ii) improved capacity of competent authorities to
process the increased volume of cross-border cases87.
Proportionality assessment of the preferred option
Despite imposing more obligations on Member States, the preferred option would not
require the adoption of measures that would burden them beyond what is necessary for
the achievement of this initiative’s objectives. Member States would only have to
implement measures that ensure the functioning and harmonised use of the digital
communication channel. The analysis of policy options has shown that non-legislative
measures cannot ensure that the objectives will be achieved.
As regards the suboptions under the legislative option, non-mandatory measures would
not result in a broad, harmonised approach to digital communication and would thus not
fully achieve the goals of this initiative. While the suboptions allowing for a voluntary
approach to digital communication, videoconferencing and the regulation of trust
services would be proportionate to their realistically achievable goals, this would
encompass only some of the goals. The objectives can be fully achieved only through
legislative provisions requiring the use of digital communication, allowing
videoconferencing and regulating trust services. The legislative option and the
suboptions imposing obligations on the above would thus be entirely proportionate to the
objectives of the initiative.
9. HOW WILL ACTUAL IMPACTS BE MONITORED AND EVALUATED?
A sound system for monitoring the proposed legal instrument is needed, including a
comprehensive set of qualitative and quantitative indicators, and a clear, structured
reporting process. This is important for tracking whether the instrument is implemented
efficiently in the Member States and whether it is successful in achieving its specific
objectives.
In order to provide guidance in the monitoring process, Table 2 presents indicators that
help analyse the extent to which the objectives are achieved. A full evaluation every 5
years would be useful for assessing impacts and contextual issues. Where electronic
communication is used, monitoring will be facilitated by automatically compiling data
and using the reporting features of the new IT system. For data that is not collected
automatically, a monitoring sample of at least one court or competent authority to be
designated by each Member State will be put in place.
87
As analysed in Section 2.3, we can only assume the potential for an increased workload for courts and
other competent authorities dealing with cross-border judicial cooperation. However, new technologies
have the potential to make judicial systems more efficient in this regard, by easing the administrative
burden, shortening case processing times, and partially automating case handling. Additionally, the
Commission supports the efforts of Member States to organise their respective judiciaries, including
innovative tools and efficient functioning, through the availability of RRF.
44
EJN-civil and EJN-criminal will play an important role in the implementation and
application of the proposed instrument. These forums (which bring together national
stakeholders and the central authorities and agencies dealing with the implementation of
the relevant regulations) can be used to obtain feedback from Member States on the
application of the instrument and identify practical problems.
Table 2: evaluation and monitoring framework
Assessment criterion Indicator Frequency
Horizontal aspects Number of EU instruments under the scope Once a year.
of the regulation for which digital cross-
border communication is available for use in Source –
Commission
the Member States.
report.
Costs of implementing and operating the IT For every
system evaluation.
Source –
Commission
and Member
States.
Further improving Number of electronic transactions through the Once a year.
the efficiency and digital cross-border channel of
Source –
speed of judicial communication.
Member
proceedings and
States’
reduce the burden for
reporting.
individuals and legal
entities
Percentage of transactions through a paper Once a year.
channel in cross-border cases.
Source –
monitoring
sample.
Number of cross-border cases where Once a year.
videoconference or other distance
communication technology was used for oral Source –
monitoring
hearings
sample.
45
Number of submissions of all type made by Once a year.
individuals and legal entities via the
Source –
European access point on the e-Justice portal
Commission
report.
Duration of the communication in cross- At least for
border proceedings under the EU instruments every
in civil, commercial and criminal matters. evaluation.
Source – the
monitoring
sample.
Estimates on transaction costs inherent to At least for
communication in cross-border proceedings every
under the EU instruments in civil, evaluation.
commercial and criminal matters incurred by
the courts and the competent authorities (and Source – the
where relevant JHA agencies and EU bodies) monitoring
and the parties to the proceedings. sample.
Number of disruptions to the IT system, Once a year.
duration of its unavailability and reasons why
Source –
Member
States’
reporting.
Number of attempted or actual intrusions to Once per year.
the IT system; Number of security incidents.
Source – eu-
LISA on the
basis of
notification
from Member
States under
the e-CODEX
Regulation.
46
ANNEX 1: PROCEDURAL INFORMATION
Lead DG: Directorate General Justice and Consumers
Decide Planning: PLAN/2020/8681 - Digitalisation of cross-border judicial cooperation.
The Initiative is part of CWP 2021- Digital judicial cooperation package, point 41 and is
referenced under the Policy objective “A New Push for European Democracy”. The
adoption is planned for Q4 (December 2021).
Organisation and timing
An Interservice Group (ISG) was set up on 4 December 2020.
The Inception Impact Assessment was validated by the Vice President Jourová’s Cabinet,
the Cabinet of Commissioner Reynders and SG in January 2021 and published on 8
January 2021.
The ISG met two times and a written consultation was conducted before the submission
of the Impact Assessment to the Regulatory Scrutiny Board on 25 August. The ISG made
written comments to the Impact Assessment. These comments are summarised in a
document submitted together with the present Impact Assessment. All comments have
been addressed in a revised version of the Impact assessment, which was submitted to
RSB.
Consultation of the RSB
An upstream meeting with the RSB took place on 22 February 2021, whose
recommendations were duly taken into account.
This draft Impact assessment was submitted to RSB on 25 August 2021 towards the 22
September RSB hearing.
The RSB delivered a positive opinion on 27 September 2021. The following
recommendationshave been made:
(1) The problem analysis should be reinforced to highlight the main problems this
initiative aims to address. The analysis should be substantiated with evidence regarding
voluntary participation in digitalisation, non-recognition of electronic documents,
signatures or seals and interoperability.
(2) The report should explain how this initiative will ensure coherence with other EU-
level instruments designed to enhance digitalisation that could be used in cross-border
judicial cooperation. The report should also explain why Member States do not fully
exploit the existing possibilities for digitalisation.
47
(3) The impact analysis should be strengthened with a transparent presentation of
impacts, particularly investment costs and stakeholders affected. It should acknowledge
the uncertainties in the assumptions made and the implications these have for the impacts
assessed.
(4) The report should assess effects of a potential increase of cross-border cases. It should
discuss whether there is a risk that improved access to justice and more efficient cross-
border judicial cooperation could lead to delays in the treatment of cases due to higher
workload for judges and the time legal proceedings take.
(5) The report should clarify the data protection issues and acknowledge that moving
from a paper to a digital format entails other risks. The report should address potential
sensitivities linked to the fact that having more data in digital format may not only ease
their transmission, but also creates data protection and security issues. The concerns
raised by stakeholders about data protection should be considered.
Additional recommendations have been sent with the quality check list.
In addressing the RSB recommendations, the following changes were introduced in the
Impact assessment:
(1) The problem definition has been reformulated, so that it also reflected the actual
problems analysed in Section 2.
(2) The coherence with other initiatives, such as e-CODEX and e-IDAS have been
explained, as well as the interlinks with the e-Justice portal.
(3) The section on the impacts of the baseline and the policy options has been
restructured and the main impacts (i.e. economic impacts, social impacts, impacts
on fundamental rights) have been outlined for each of the options. The section
also addresses in what way the main stakeholders will be affected by the
initiative.
(4) The section on the impacts clarified whether there is a potential risk of increased
number of cross-border cases and the capacity of the judiciary to deal with it.
(5) Clarification with regards to data protection has been added in the section on the
impacts.
In addition, the report was supplemented with the data available from the supporting
study and from Annex 7. The economic analysis and the costs for the Member States
have been added to the report. The views of the consulted stakeholders have been
outlined in the corresponding sections of the report. The technical recommendations,
such as merging the outcome of the public consultation with Annex 2, numbering the
pages of the Annexes, deleting the Annex on the subsidiarity grid, have been addressed.
Evidence, sources and quality
48
For more than a decade the Commission has been working in the framework of the e-
Justice policy with different stakeholders. These stakeholders have been consulted on the
objectives of the initiative and on the identified policy choices. Following the
consultation strategy prepared for this initiative, a broad variety of different stakeholders
have been contacted – consultations have been carried out within the e-Justice, Civil and
Criminal Council Working Parties, EJN-civil, EJN-criminal. The following actions were
envisaged as a minimum under the consultation strategy:
Feedback on the Roadmap.
Public consultation on the Commission’s consultations website ‘Have your say’.
Both the feedback on the Roadmap and the results of the public consultation are
presented in Annex 2.
In addition, the Commission used the considerable amount of already collected factual
data concerning digitalisation of justice in the EU, for instance from: the Justice
Scoreboard, Rule of Law report, CEPEJ data (European Commission for the Efficiency
of Justice, an initiative of the Council of Europe), a questionnaire sent to Member States
by the Council General Secretariat and the Digital Criminal Justice study.
A study to support the preparation of the Impact assessment has been commissioned. The
contractor employed the following stakeholder consultation activities specifically
designed for the purposes of the study:
EU level focus group;
National stakeholder consultation on impacts of policy options
National-level survey
Focus groups at national level
Bilateral interviews
Validation of the policy choice
All data collected fed into the different steps in the preparation of the initiative, including
in the Impact Assessment.
The Impact Assessment was based on certain assumptions, namely:
It was estimated that the number of cross-border cases in civil, commercial and
criminal matters would be growing with the increase of the number of people
living and working in a Member State different from the one of their origin and
with the increase of the number of people traveling for tourism purposes.
It was estimated that the number of persons visiting and using the European e-
Justice Portal will result in increased number of cross-border cases.
Other assumptions were used to help with the quantification of the current status quo and
impacts of each policy option. The need for these assumptions was dictated by data
heterogeneity that the Impact Assessment encountered.
49
The data limitations encountered in this Impact Assessment were the following:
fragmented data on the number of cross-border cases in civil, commercial and
criminal matters;
fragmented data on the length and costs of the cross-border proceedings in civil,
commercial and criminal matters. In particular, Member States do not keep
records on the number of the cross border cases brought before their courts or the
length of the cross-border proceedings. Therefore, the data regarding the number
of cases, and average length and costs of the cross-border proceedings in civil,
commercial and criminal matters had to be estimated or extrapolated based on the
limited amount of data collected.
To mitigate the impact of the data limitations (to the extent possible), the external
contractor followed up directly with some of the stakeholders to clarify certain aspects
such as the length and the costs of the proceedings, sought to model certain use cases of
cross-border judicial cooperation (e.g. EIO, EAW, EPO) and when feasible, attempted to
corroborate the existing evidence through interviews with various stakeholder groups in
different Member States. In addition, where quantification of costs and benefits was not
feasible, a qualitative approach was chosen instead (description of processes and types of
costs and benefits deriving from the options).
50
Annex 2: Stakeholder consultation
The consultation activities carried out in the preparation of the Impact assessment aimed
at ensuring that all interested parties and stakeholders will have the opportunity to
provide feedback on the various policy options that the Commission has identified with
regard to its initiative, and their likely impacts, as well as on the relevance, effectiveness,
efficiency and the added value of the initiative. In that context, the Commission reached
out to a broad range of stakeholders, including Member State national authorities, non-
governmental organisations, professional associations, business organisations and
individual citizens.
On 8 January 2021, the Commission published the Inception Impact assessment
(Roadmap), which was opened for a feedback until 5 February 2021 with a total
of 19 replies.
In order to collect views from the general public, on 16 February 2021 the
European Commission launched an internet-based public consultation on the
Commission’s consultations website ‘Have your say’ in 22 of the official EU
languages. The consultation was questionnaire-based. The consultation period
was twelve weeks and run until 11 May 2021. A total number of 89 replies have
been received.
2.1. SUMMARY OF THE FEEDBACK ON THE ROADMAP
National Court administration, Finland:
The feedback suggests that a distinction should be made between transferring papers
electronically and genuine digitalisation. The expressed preference is for a horizontal
approach because a tailor-made solution to each EU instrument would not lead to a user-
friendly outcome. Long-term and all-encompassing planning would ensure
interoperability of the different systems and appropriate prioritisation of projects, and
would allow for long-term financial planning. Digitalisation of justice is not simply a
question of finding the technical solution. It is also a process that must involve the
judiciary to ensure that their independence is not compromised.
Digitalisation should go hand-in-hand with training and building relevant skills.
Ministry of Justice of Poland:
The level of development of each Member State should be taken into account and
digitalisation should be promoted for national proceedings as well. Otherwise, the
digitalisation of cross-border cooperation will have limited effect if the operation of
national justice is not digitalised first. Poland supports mandatory electronic
communication between authorities subject to certain exceptions.
51
While there is a lack of EU competence to regulate technical standards and norms in the
administration of justice, the use of a common IT system creates a new quality and is
useful for the citizens.
Concerning the legal effects of electronic documents and the recognition of electronic
signatures, Poland submits that the e-IDAS Regulation is sufficient and there should not
be a further regulation and rather more training and exchange of good practices between
courts in the field of assessing the reliability of evidence presented to the court and
recognition of electronic signatures.
Ministry of justice Estonia:
Estonia fully supports the Commission’s intention of making the digital channel the
default option in EU cross-border judicial cooperation. The exchange and operability of
data must replace the exchange of documents.
It is essential that digitalisation of cross-border judicial cooperation is implemented in
full compliance with fundamental rights, such as the right to the protection of personal
data, the right to a fair trial and the right to an effective remedy. The right to access
justice should be fully respected also for disadvantaged groups and vulnerable people.
For the Justice sector to become more digitalised, decentralised digital solutions for the
Union (e-CODEX) and the overall level of digitalisation of judicial systems in the
Member States should be developed simultaneously. However, Union-level solutions
should not force digitally more developed Member States to regress.
Estonia supports the development by the Commission of reference implementation
software solutions for Member States’ use by re-using the infrastructure being developed
for the European Investigation Order in criminal proceedings (eEDES) and for the
Service of Documents and Taking of Evidence.
National Council of the commercial court clerks, France:
The National Council welcomes the initiative and will work alongside the European
Commission to achieve its goal.
A pioneer in digitalisation for several years, the National Council of the commercial
court clerks has developed (with the assistance of GIE Infogreffe, of which each clerk is
a member) digital tools allowing on the one hand the dissemination of company data and,
on the other hand, facilitating business procedures and formalities as well as access to
commercial justice. These additional and faster digital resources have made it possible
for commercial justice to operate, particularly during the period of the health crisis, and
for companies to continue their procedures online.
Ministry of Justice, Sweden:
Sweden recognises the importance of effective access to justice, especially in times of
crisis.
52
The challenges to be addressed are outlined as follows: everyone should be able to take
part in the digital society in a safe and reliable way - not to exclude those who cannot, or
don’t want to use digital tools; additional challenges are relating to information security,
personal integrity, regulations, technology, and guarantees for finances.
The Ministry submits that the introduction of a mandatory digital system should be
discussed in relation to each legal act, and in ensuring proper funding.
iSupport Governing Body (HCCH):
The iSupport governing body welcomes the initiative.
They insist on ensuring the coordination between the EU Regulation (Council Regulation
(EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and
enforcement of decisions and cooperation in matters relating to maintenance obligations)
side and the Convention (Convention of 23 November 2007 on the International
Recovery of Child Support and Other Forms of Family Maintenance) side of iSupport, as
a divergence could be created by different technical requirements between the
Convention and the Regulation.
Notes that iSupport is an example that could be relied upon for further development of
applications to support cross-border communications in other areas than maintenance
obligations.
Fair Trials, Belgium:
Fair Trials welcome the search for ways to make criminal justice systems more
accessible through digitalisation. Digitalisation presents an opportunity not only to
promote cooperation between law-enforcement agencies, but also to better implement
existing EU standards on defense rights in cross-border proceedings, which remains
problematic in practice, as reported by the EU Fundamental Rights Agency and the
European Commission (e.g. on the right to access a lawyer).
They note the need to ensure that the fundamental rights enshrined in the six EU
Procedural Rights Directives and the EU Charter of Fundamental Rights are protected in
a digital setting.
They suggest the following approach:
Promote the use of alternative measures to the European Arrest Warrant (EAW)
• The Council has previously called for measures to address the overuse of pre-trial
detention and to promote its alternatives. Reducing over-reliance of European Arrest
Warrant is key in these efforts. Therefore, digital solutions (e.g. interviewing a suspect
through videoconference) should be used to promote the use of the European
Investigation Order instead of European Arrest Warrants for prosecution.
• Digitalisation can promote more effective access to justice, including the
possibility to file submissions digitally in both the executing and issuing Member States.
53
This would also enable defense lawyers to challenge unnecessary detention and apply for
less restrictive cross-border cooperation instruments.
Access to dual legal representation
• Article 10(5) of Directive 2013/48/EU requires Member States to cooperate to
facilitate appointment of a lawyer in the issuing state. In European Arrest Warrant
proceedings, digitalisation should seek to address a long-standing implementation gap in
dual legal representation. Digital tools should be used to enable access to information on
the appointment of a lawyer in the issuing State and legal aid schemes.
• Digital tools should also enable a cooperation between lawyers in the issuing and
executing states to prepare an effective defense and seek an effective remedy where
necessary.
Access to information
• To promote equality of arms in cross-border proceedings and the effective
implementation of Directive 2012/13/EU on the Right to Information, the defense must
also be able to access digitalised case information and materials in cross-border
proceedings.
• In European Arrest Warrant proceedings, the defense must have access not only
to the arrest warrant form but also to all documents necessary to understand its grounds
in a timely manner. This could help prevent unnecessary arrest, detention and surrender
of persons to other countries.
• The Letter of Rights in European Arrest Warrant proceedings (Article 5 of
Directive 2012/13) should be made available in a digital format in different languages to
ensure that every person receives information about their rights in a language they
understand.
• Digitalisation also offers the possibility to enable persons to make online
submissions using multilingual forms and to get the necessary information and assistance
online in their own language, for instance on legal aid. This would promote access to
justice also for all persons, including vulnerable persons.
Access to interpretation and translation
• In the EU Area of Freedom, Security and Justice, which enables the free
movement of persons across countries, digital tools must help secure access to translation
and interpretation enshrined in Directive 2010/64/EU, to enable people to understand and
participate effectively in cross-border proceedings.
Council of the Notariats of the European Union:
The Council of the Notariats agrees with the findings of the Inception Impact Assessment
to the extent that digitalisation is key and that some issues still have to be tackled in order
54
to ensure that cross-border exchanges can be carried out safely and securely by digital
means.
They cautiously welcome the creation of multilingual online forms to enable remote
procedures to be carried out and call for feasibility studies to be carried out, for legal
professionals to be consulted beforehand,, for the advisory dimension to be preserved and
for citizens to be able to have all the necessary safeguards so that procedures cannot be
initiated against the will of the parties.
They are convinced that digitalisation can contribute to offer a better service to the
citizen, for example in the field of company law.
The Council of Notariats believes that the creation of a new section on the European e-
Justice Portal dedicated to the digitalisation of cross-border judicial cooperation would
facilitate the access to information for the EU citizens and law practitioners. Information
such as the list of providers of the digital certification services for the qualified electronic
signature and documents mandatory in the national legislation for each service provider
in the field of certification (information concerning trust chain, timestamp) could
facilitate the recognition of the electronic signature from the issuing Member State to the
receiving Member State.
They welcome the fact that the Inception Impact Assessment confirms the approach of
interoperability between national systems rather than building complex European
systems; it is important that the Member States and the legal professions can continue to
build the most useful tools for their specific needs.
Further development of videoconferencing solutions and secure and reliable
identification procedures for both legal professionals and their clients are of utmost
importance when it comes to the further promotion and the fostering of digitalisation
tools in cross-border proceedings. The notaries, in the context of their task of verifying
the identity of the person appearing before them, must be able to check the identity
documents of all EU citizens.
The outlined challenges are the following: it has to be guaranteed, that legal certainty and
the quality of preventive legality control within the justice system as well as the
reliability of public registers will not be impaired by an enhanced digitalisation of cross-
border cooperation; the control of the technical solution is crucial; data protection,
confidentiality and high securities standards in the digital world must be guaranteed in
the same way as in the “physical world”; not to exclude citizens who do not have internet
access or cannot use technologies for various reasons and make sure that these people
will also continue to benefit from an efficient access to justice; the Commission should
take into account the percentage of the EU population living in remote or rural areas,
where access to internet or new technologies may not be easily achieved and where the
drafting of documents on paper is necessary.
German Federal Ministry of Justice and Consumer Protection:
55
The Ministry welcomes the initiative of the Commission to promote the digitalisation of
cross-border judicial cooperation by means of a draft legislation. Both the analysis of the
problem and the goals of the project are fundamentally shared.
With regard to legislative options, consideration should be given to creating a minimum
standard for the participation of Member States in cross-border digital communication
via e-CODEX, which would offer a degree of trustworthiness of digital documents that is
sufficient for a large number of the existing instruments in their current version. It should
be checked whether such a minimum standard, which could be based on the qualified
electronic seal in accordance with the e-IDAS Regulation, cannot already be integrated
into the proposal for e-CODEX Regulation. Insofar as individual instruments of judicial
cooperation have higher requirements for the electronic form for certain documents,
corresponding requirements could then be added to the legal acts concerned, again linked
to quality levels of the e-IDAS Regulation. This approach would avoid having to reform
a large number of legal acts, which experience shows would take a considerable amount
of time. It should be avoided under all circumstances to define new, parallel standards in
addition to the established and directly applicable standards of the e-IDAS Regulation.
Member States whose institutions already use qualified e-IDAS-compliant procedures
must be able to rely on the fact that they will also be able to participate in future legal
transactions on this basis.
In addition, there would still be room to regulate general aspects of digitalised judicial
cooperation in a new regulation, such as the general obligation to use the digital channel
and the obligation to accept digital documents if they meet the requirements of the e-
IDAS Regulation. This would also ensure the uniformity of the formats and formal
requirements used. Exceptions with regard to the availability of the digital systems and
the specific requirements of certain procedures would also have to be regulated. Last but
not least, the rules for setting up of any IT systems that are still required could be set on
the basis of already proven structures such as e-CODEX.
The outlined challenges are the following: common IT solutions for judicial cooperation
at European level must be designed in such a way that they respect the independence of
the judiciary and the principle of subsidiarity; the judiciary in the Member States should
have a say in the initial and further development of IT systems that enable cross-border
legal exchanges; appropriate transition periods before an application becomes mandatory.
The Ministry notes the need of developing reference implementation software that can be
used across the EU. The use of national IT systems instead of the reference
implementations must remain possible if these systems meet the objective standards for
security, authenticity and interoperability.
European Disability Forum, Belgium:
The Forum welcomes the initiatives of the European Commission to improve access and
efficiency of the justice system. Modernising judicial cooperation between EU countries
to improve access to justice in cross-border cases, through the use of digital technology,
56
can be very beneficial to persons with disabilities. Persons with disabilities currently face
multiple barriers in the justice system (including digital barriers) that hinder their access
to justice in cross-border cases. They are also affected by the digital gap. The
recommendations made include recognising the accessibility as a core principle of the
modernisation of the judicial cooperation between EU countries and ensuring
accessibility is a requirement in all related EU initiatives.
Ministry of Justice of the Republic of Latvia:
Latvia agrees that the introduction of a common EU legal framework in the field of
cross-border digitalisation of judicial cooperation would ensure faster and more efficient
judicial cooperation between the Member States.
In cross-border matters, the electronic circulation of documents is currently rare in
practice due to a lack of mutual trust between the countries. Electronic circulation is
mainly ensured by converting paper documents into electronic format, scanning and
sending them to the Member State concerned, but the Member States still require that the
original documents are sent to them in paper form. This is a time consuming process and
requires double labor resources. The introduction of a mutual mechanism for the
recognition of electronic signatures between the Member States would speed up these
processes.
The proposal to establish legal channels for the circulation of electronic documents
between MS is also to be supported, because it reduces the risks of information leakage
and creates certainty in cross-border judicial cooperation. Given that the instruments of
judicial cooperation in both civil and criminal law are evolving and new electronic data
transmission channels are being created, the idea of improving existing information
transmission channels should be supported.
International Union of Notaries Professional Assistants:
Gathering all the necessary documents in digital form will be a great help, to send and
receive digitally signed documents will save a lot of time and money. E-signature should
be applied also in the copies of notarial acts with the same value in all countries.
The usual problem is the lack of training of citizens, people usually don't know how to
use them or they are not informed. As the process goes, there should be online free
seminars for everyone that is interested.
Studio Legale de Franciscis, Italy:
Studio Legale supports the establishment of a system for digital cooperation in cross-
border cases. Modernisation and development in this sense must be encouraged,
including the necessary protection of data. In case the system is not used – respective
penalties to be provided for.
Brussels Human Rights and Development Organization:
57
Brussels Human Rights and Development Organization supports the initiative. The
information must be protected and its safe transmission should be guaranteed. However,
the paper exchanges should be kept.
Francois Gerin, a citizen from Belgium, a software engineer:
Mr Gerin submits that software which is coded will lead to challenges (as it happened
with BE IDs), therefore the source should be open. Since this is an EU matter, and no
foreign software maker (Google and Microsoft) should interfere or get monopoly on or
profit from this project. Small software companies, which participate much more in the
economy should be favored.
Anonymous citizen from France:
It seems weird that nowadays one cannot communicate electronically with authorities.
The paper format however should be kept.
Giorgio Cannella, a citizen from Italy:
Sanctions should be applied if a private or public body of a Member State does not
comply with the mandatory provisions of the Regulation.
2.2. PUBLIC CONSULTATION RESULTS
The public consultation sought the views and opinions of all stakeholders who could be
impacted by the future initiative (citizens, ministries, courts, JHA agencies and EU
bodies, legal practitioners) in order to take them into consideration when deciding on the
possible options and the way forward.
A summary of some of the main findings could be found below. Detailed and visualised
results of the Public consultation can be found in Annex 2.
Benefits and disadvantages of the digitalisation of EU cross-border judicial procedures
A large majority of respondents perceive benefits from the digitalisation of EU cross-
border judicial procedures (≈98%), with only very few stakeholders (≈2%) indicating
that they do not perceive benefits at all. More than 80% of the respondents agree with the
statement that digitalisation will lead to speedier and more effective/efficient cross-
border procedures (≈88%), will save time for both administrations and citizens or
businesses (≈87%), that it will lead to better accessibility of information and easier
access to judicial procedures (≈86%), and will lower costs of handling cases both for
administrations and citizens/businesses (≈81%). A minority of stakeholders believe that it
will increase the resilience of judicial systems (≈38%) or will lead to any other type of
benefit.
With regards to the disadvantages, 62.5% of the stakeholders express cybersecurity
concerns. Data protection is a concern for ≈49% of the respondents, and so is the risk of
58
exclusion due to different factors, including lack of digital skills (≈42%), lack of access
to the internet/unreliable internet connection (≈32%) or due to lack of adequate
equipment (≈31%). For 12.5% of the stakeholders the digitalisation will not bring any
disadvantages.
Concerning the rights to a fair trial and the right of defense, more than two thirds (≈66%)
of the stakeholders do not see in the digitalisation of cross-border judicial cooperation a
threat to the right to a fair trial and the right of defense. A fifth of the respondents (≈20%)
perceive a threat to these rights.
Key barriers to the digitalisation of cross-border judicial cooperation
A majority of stakeholders identify six specific barriers to digitalisation of cross-border
judicial cooperation. These are i) the different level of digitalisation of the Member
States (≈84%), ii) the lack of financial and human resources for developing and
maintaining IT systems (≈68%), iii) the lack of digital skills of users and/or competent
authority staff (≈65%), iv) lack of interoperable national IT systems which can
communicate with each other (≈62%), v) the lack of regulation recognising legal effects
of considering electronic evidence admissible under national law (≈54%), and vi) the
lack of recognition of electronic identities and electronic signatures/seals between
Member States (50%).
The stakeholders were asked further questions on other challenges that should be
considered during the transition to digitalisation of cross-border judicial cooperation. 57
respondents provided open-ended responses. The most frequently mentioned challenge
(13 respondents) was the need to secure harmonised or mutually recognised channels for
communication that are interoperable; 8 respondents indicated the heterogeneous degree
of digitalisation across the EU in general or in particular in relation to the justice system;
7 respondents indicated the security of the channels, and the same number of respondents
pointed out challenges to the security, privacy, and independence of the judiciary and
judicial bodies. Other challenges identified are the digital transition as such (6), issues
related to equal access to justice and guarantees to fundamental rights (6), the
admissibility of electronic documents and language issues (both 4).
According to ≈51% of respondents the digitalisation of cross-border judicial cooperation
could lead to exclusion of individuals and businesses, including SMEs, due to lack of
internet access, low digital skills, vulnerability or other reasons.
Preferred scenario for digitalisation of EU cross-border judicial cooperation and
access to justice
Regarding the digitalisation of the cooperation between the courts and other competent
authorities of Member States, 80% of the respondents would prefer the digitalisation of
this cooperation to be mandatory, for only ≈16% that would prefer it to be optional.
Among the public authorities, support for a mandatory digitalisation of the judicial
cooperation is expressed by ≈68% of the respondents, for ≈26% of them that would
prefer the electronic exchange to be optional. Roughly 67% of the respondents prefer the
59
electronic format as the most adequate for communication between judicial and other
competent authorities across borders, while approximately 28% of the respondents prefer
a combination of paper-based and electronic communication. Thus, 95% of the
respondents identify the electronic format as the most appropriate channel for
communication, either exclusively or in combination with the paper-based channel. The
involvement of the JHA agencies and EU bodies in the digital channels of
communication is thought to bring added value for a large majority of the respondents to
the specific question (≈68%).
Regarding access to justice two thirds (≈66%) of the respondents support mandatory
digitalisation of cross-border electronic communication of individuals and businesses
with the courts and other authorities. The public consultation did not include a question
on the use of the videoconferencing or other distance communication technology for the
purposes of the oral hearings, because this option was identified after the public
consultation was launched.
Two-thirds of the respondents indicated that they would directly benefit from an EU-
developed IT solution provided to them in the context of a possible transition to a digital
channel of communication for EU cross-border judicial cooperation procedures.
Results of the public consultation
Consultation on the Digitalisation of Cross-Border Judicial Cooperation
in the EU
The main observations from the extraction of the 89 replies to the public consultation are the
following: The most frequent (43) replies were from EU citizens, followed by public authorities
(20). Their six main countries of origin were Spain (11), Germany (10,) Belgium (7) Italy,
Portugal, and Romania (6).
Table 6 - Feedback by stakeholders
– Stakeholder type – Number of replies
– Academic/research institution – 4
– Business association – 1
– Company/business organisation – 6
– Consumer organisation – 1
– EU citizen – 43
– Non-governmental organisation (NGO) – 7
60
– Other – 7
– Public authority – 20
– Total – 89
Table 7 - Feedback by country of origin/affiliation
– Country – Number of replies
– Austria – 5
– Belgium – 7
– Bulgaria – 4
– Croatia – 2
– Cyprus – 1
– Czechia – 2
– Estonia – 1
– Finland – 1
– France – 4
– Germany – 10
– Greece – 2
– Hungary – 1
– Ireland – 1
– Italy – 6
– Latvia – 1
– Lithuania – 5
– Luxembourg – 1
– Malta – 2
– Netherlands – 2
– Poland – 3
– Portugal – 6
61
– Romania – 6
– Slovakia – 2
– Slovenia – 1
– Spain – 11
– Switzerland – 1
– United Kingdom – 1
– Total – 89
The overview below focuses on the main questions that can be analysed from a purely
quantitative approach.
Benefits of the digitalisation of EU cross-border judicial procedures
A large majority of respondents perceive benefits from the digitalisation of EU cross-border
judicial procedures (≈98%), with only very few stakeholders (≈2%) indicating that the do not
perceive benefits at all. More than 80% of the respondents agree with the statement that it will
lead to speedier and more effective/efficient cross-border procedures (≈89%), cause less time to
be consumed for both administrations and citizens or businesses (≈88%), that it will lead to better
accessibility of information and easier access to judicial procedures (≈85%), and to lower costs of
handling cases both for administrations and citizens/businesses (≈81%).
A minority of stakeholders believe that it will increase the resilience of judicial systems (≈37) or
lead to any other type of benefit.
Figure 2: What would be, in your view, the benefits of the digitalisation of
EU cross-border?
100,00%
88,64% 87,50%
90,00% 85,23%
80,68%
80,00%
70,00%
60,00%
50,00%
40,00% 36,36%
30,00% 22,73%
20,00%
10,00% 2,27%
0,00%
Speedier and more Less time consumed Better accessibility of Lower costs of Increased resilience of Other (please I don’t see any
effective/efficient for both information and easier handling cases for judicial systems elaborate in the box benefits
cross-border administrations and access to judicial both administrations below)
procedures citizens/businesses procedures and citizens /
businesses
62
Key barriers to the digitalisation of cross-border judicial cooperation
A majority of stakeholders identify six specific barriers to digitalisation of cross-border judicial
cooperation. The barriers perceived by the most stakeholders is the different level of
digitalisation of the Member States (≈84%), followed by the lack of financial and human
resources for developing and maintaining IT systems (≈67%), the lack of digital skills of users
and/or competent authority staff (≈65%), lack of interoperable national IT systems which can
communicate with each other (≈61%), the lack of regulation recognising legal effects of
considering electronic evidence admissible under national law (≈56%), and the lack of
recognition of electronic identities and electronic signatures/seals between Member States (50%).
Figure 3: What do you consider as key barriers to the digitalisation of cross-
border judicial cooperation?
100,00%
90,00% 84,09%
80,00%
70,00% 67,05% 64,77%
61,36%
60,00% 55,68%
50,00% 47,73%
50,00%
42,05%
40,00% 36,36%
30,00%
21,59%
20,00%
10,00%
0,00%
Disadvantages of the digitalisation of EU cross-border judicial
procedures
63
Despite some concerns derived from the digitalisation of EU cross-border judicial procedures,
12.5% of the stakeholders do not see disadvantages of it.
Instead, 62.5% of the stakeholders express cybersecurity concerns. Data protection is a concern
for ≈49% of the respondents, and so is the risk of exclusion due to different factors, including
lack of digital skills (≈42%), lack of access to the internet/unreliable internet connection (≈32%)
or due to lack of adequate equipment (≈31%).
Figure 4: Disadvantages of the digitalisation of EU cross-border judicial
procedures
100,00%
90,00%
80,00%
70,00%
60,00%
50,00%
40,00%
30,00% 62,50%
48,86%
20,00% 42,05%
32,95% 30,68%
10,00% 20,45% 14,77% 12,50%
0,00%
Cybersecurity Data protection Risk of exclusion Risk of exclusion Risk of exclusion Other (please Disproportionate I don’t see any
concerns concerns due to:Lack of due to:Lack of due to: Lack of elaborate in the need of disadvantages
digital skills access to the adequate box below) investments
internet / equipment (e.g. no
unreliable internet access to a
connection computer, or a
mobile device)
Right to a fair trial and defence
More than two thirds (≈68%) of the stakeholders do not see in the digitalisation of cross-border
judicial cooperation a threat to the right to a fair trial and the defence rights. Less than one fifth of
the respondents (≈18%) perceive a threat to these rights.
Figure 5: Could digitalisation of cross-border judicial cooperation adversely
affect the right to a fair trial and defence rights?
18%
14%
68%
No Undecided Yes
64
Risk of exclusion of individuals and businesses, including SMEs
A majority (≈54%) of the respondents to the question below identify that digitalisation of cross-
border judicial cooperation could exclude individuals and businesses, including SMEs.
Figure 6: In the context of a possible transition to an electronic channel of
communication for EU cross-border judicial cooperation procedures:
a) do you consider that there are risks of exclusion of individuals and
businesses (including SMEs) if the electronic channel becomes the
default one (e.g. owing to lack of internet access, low digital skills,
vulnerability or due to other reasons)?
37%
54%
9%
No Undecided Yes
Preferred scenario for digitalisation of EU cross-border judicial
cooperation
Electronic communication between courts and other competent authorities
of Member States
Roughly 80% of the respondents would prefer electronic cooperation between courts and other
competent authorities of Member States to be mandatory, for only ≈15% that would prefer it to
be optional. Among public authorities, ≈68% of them would like to have mandatory digitalisation
of cross-border judicial cooperation, for ≈26% of them that would prefer this to be optional.
65
Figure 7: Electronic communication of individuals/businesses with the
courts and other competent authorities of the Member States should
be...
Question 8b: Electronic communication of
individuals/businesses with the courts and other competent
authorities of the Member Stateshould be...
5%
15%
80%
Mandatory - i.e. use of the digital channel by default, subject to justified exceptions
Optional – i.e. left at the discretion of Member States
Undecided
Electronic communication of individuals/businesses with the courts and
other competent authorities of the Member States
Support for mandatory digitalisation of cross-border electronic communication of individuals and
businesses with the courts and other authorities is relatively smaller, but majoritarian, with two
thirds (≈67%) of the respondents supporting this option.
66
Figure 8: Electronic communication of individuals/businesses with the
courts and other competent authorities of the Member States should
be...
3%
30%
67%
Mandatory - i.e. obliging Member States to provide for such a possibility, without excluding alternative
channels
Optional - i.e. left at the discretion of Member States
Undecided
Aspects of digitalisation to be regulated through a new EU legal instrument
There is widespread support for the regulation of four aspects of digitalisation of cross-border
judicial cooperation to be regulated in a new EU legal instrument. A large majority of consulted
stakeholders (≈88%) indicate that the mandatory or optional nature of electronic communication
with and between competent national authorities should be regulated. The legal validity of
electronic documents and evidence should be subject to regulation for more than fourfifths of the
respondents (≈82%). The regulation of the conditions for the use of electronic signature/seals
(≈74%) and the responsibilities for data protection obligations (≈68%) also enjoy wide support.
67
Figure 9: In case it is decided to propose a new EU legal instrument, what
aspects of digitalisation should it regulate?
100,00%
88,10%
90,00% 82,14%
80,00% 73,81%
67,86%
70,00%
60,00%
50,00% 46,43%
40,00%
30,00%
19,05%
20,00%
10,00%
0,00%
The mandatory or optional The legal validity of The conditions for the use The responsibilities for data The architecture of the IT Other
nature of electronic electronic documents and of electronic protection obligations system to be used
communication with and evidence signatures/seals
between competent
national authorities
Most adequate legal channel for communication between authorities across
borders
Roughly 66% of the respondents prefer the electronic format as the most adequate for
communication between judicial and other competent authorities across borders, while
approximately 29% of the respondents think that the combination of paper-based and electronic
communication is preferred. 33 (≈37%) respondents out of 89 respondents of the survey did not
indicate any opinion.
Figure 10: Which communication channel do you think is most appropriate
for communication between judicial and other competent authorities
across borders?
3% 2%
29%
66%
Both Electronic Paper-based Undecided
Involvement of EU bodies and services
68
The involvement of EU bodies and/or services in the digital channels of communication is
thought to bring added value for a large majority of the respondents to the specific question
(≈68%). The reasons why respondents argue that this would deliver added value will be explored
in the final analysis.
14 (≈25%) respondents out of 89 respondents of the survey replied that they were undecided and
7% did not reply to the question at all.
Figure 11: Do you consider that the involvement of EU bodies and/or
services (such as the EPPO, OLAF, Eurojust) in the digital channels
of communication would bring added value to the overall concept of
digitalisation of judicial cooperation?
7%
25%
68%
No Undecided Yes
Benefits of from an EU-developed IT solution
Two-thirds of the respondents to the question below indicate that they would directly benefit
from and EU-developed IT solution provided to them in the context of a possible transition to an
electronic channel of communication for EU cross-border judicial cooperation procedures. 15
(≈27%) respondents out of 89 respondents of the survey indicated that they were undecided
whereas the remaining 6% of the respondents did not answer to this question at all.
69
Figure 12: In the context of a possible transition to an electronic channel of
communication
6%
27%
67%
No Undecided Yes
Optimum way to achieve full digitalisation of cross-border judicial
procedures at the European level
A majority of the respondents (≈57%) indicate that the best way of achieving full digitalisation of
cross-border judicial procedures at the EU level would be by adopting one EU legal instrument
which provides for the digitalisation of all cross-border civil, commercial and criminal
procedures. Less than one-fourth (≈22%) of the respondents are in favour adopting a series of
amendments to civil, commercial and criminal EU law instruments for the digitalisation of cross-
border judicial procedures, and one-seventh of the respondents (≈14%) would prefer a
promotional campaign regarding the use of the various channels of communication without
mandating their use.
70
Figure 13: What would be the best way to achieve full digitalisation of
cross-border judicial procedures at the European level?
7%
22%
14%
57%
By adopting a series of amendments to civil, commercial and criminal EU law instruments for the digitalisation
of cross-border judicial procedures
By adopting one EU legal instrument which provides for the digitalisation of all cross-border civil, commercial
and criminal procedures
By carrying out a promotional campaign regarding the use of the various electronic channels of communication,
without mandating their use
Undecided
71
Annex 3: Who is affected and how?
1. Practical implications of the initiative
The preferred policy option would affect the following stakeholders:
1.1. Citizens
Introducing digital use for enhancing access to justice for cross-border cases in civil,
commercial and criminal matters will affect the citizens. The possibility for the citizens
to file claims and to digitally communicate with the courts and competent authorities, as
well as the possibility to participate in oral hearings through videoconference or other
distance communication technology will ensure improved access to justice in cross-
border procedures, once they are digitalised. While the current possibilities for
submission of claims online is limited to a few Member States and mainly under pilot
projects, this will now be extended to cover all Member States. As a consequence,
barriers for citizens to take action will be reduced. The use of digital tools will not
require significant costs or investments on the part of the citizens. What would be needed
is a computer and access to the internet. In order to ensure that citizens who lack digital
skills, who live in remote areas or whose personal capacity does not allow them a
seamless access to the digital tools, the paper based communication will be maintained.
1.2. Businesses and SMEs
The businesses will be affected by the new initiative in a similar manner as the citizens.
All legal entities will have the possibilities to digitally communicate with the courts and
the competent authorities and to take part of oral hearings though a videoconference or
other distance communication technology. The paper-based communication will be
maintained for the legal entities as for the citizens. There are no specific costs that are
foreseen for businesses – in order to make use of the digital communication, they need to
possess a computer and to have access to the internet. The businesses will benefit from
the improved access to justice and more efficient protection of their rights, which is
expected to have a beneficial effect on and to boost the cross-border trade.
Similarly, SMEs involved in cross-border transactions are expected to benefit directly
from the improved access to justice, as well as from lower costs and shorter proceedings
when enforcing their rights across borders. This could also give impetus to the SMEs to
engage more in cross-border transactions within EU. The lower costs of proceedings will
have an indirect effect by improving the competitiveness of the SMEs.
1.3. Legal professionals
Lawyers will be able to use the access point on the e-Justice portal or where established
the national portals of the Member States, to electronically sign and send claims and
other submissions in cross-border cases under the respective EU instruments to
competent courts and authorities in the Member States. The bailiff and notaries who are
competent to act under the EU instruments for judicial cooperation in civil matters would
72
communicate between themselves and with the courts and the other competent authorities
through the IT system which will be based on e-CODEX. To that end, the bailiffs and the
notaries will need to be connected to the system, through the access point of the
respective Member State, where they perform their duties.
1.4. National courts and other competent authorities
The e-CODEX based IT system will be used to facilitate the communication between the
courts and competent authorities and where relevant the JHA agencies and EU bodies in
the context of the cross-border judicial cooperation procedures. The digital channel will
be used to transmit documents, requests, forms, messages and data from the
courts/authorities of one Member State to courts/authorities in another Member State,
with the purpose of conducting the proceedings as foreseen under the rules of the
respective EU instruments. The processing of the communication will be similar to the
exchange of requests, forms and documents under the recently adopted recasts of service
of documents and taking of evidence regulations.
It is expected that Member States will incur one-off expenditures for installing the
national access points interconnecting the national IT systems in the context of the
decentralised IT system. Furthermore, each Member State will have to bear the costs for
the operation and maintenance of its access points, as well as for establishing and
adjusting its national IT systems to make them interoperable with the access points and
for administering, operating and maintaining those systems. Member States will be free
to use the Reference Implementation software which the Commission will develop for
them, instead of their national IT systems. The e-CODEX tool is an open-source solution
that could be used free of charge. All these extra costs from national authorities go
alongside with co-financing from the European Commission. It should be highlighted
that some Member States already possess and operate a pilot version of e-CODEX,
which they may reinstall and upgrade for the current purposes. Similarly, eEDES and the
decentralised IT system for the service of documents and taking of evidence recast
Regulation, which is currently being set up, could also be re-used. These electronic
systems follow a multifunctional approach for other digitalised EU mechanisms in order
to avoid unnecessary expenses.
Courts and competent authorities, which are not equipped with videoconferencing tools,
will have to invest in buying such equipment, if they are planning to use the possibility to
organise remote hearings.
Finally, improving the efficiency of the communication in the context of cross-border
judicial cooperation and access to justice by employing digital tools, will probably lead
to an increased use of the EU instruments for cross-border judicial cooperation in civil,
commercial and criminal matters. That would bring about an increase in the costs for the
national judicial systems.
It is expected that in the medium and long term, all these costs will be offset by the
expected decrease in the length of proceedings, the expected decrease of the time for
processing the cases, by the alleviated administrative burden and also by reducing the
cost for the communication itself (the costs for sending electronic communication is
lower than the costs for sending postal packages).
73
Summary of costs and benefits
I. Overview of Benefits (total for all provisions) – Preferred Option
Description Amount Comments
Direct benefits (EUR)
Compliance cost reductions 25,589,060 The average overall yearly savings in
postage costs and in paper costs for
individuals/legal entities and courts
II. Overview of costs – Preferred option
Citizens/Consumers Businesses Administrations
One-off Recurrent One-off Recurrent One-off Recurrent
Direct costs 0 0 0 0 18,700,000 8,100,000
Action (a)
Indirect costs
74
Annex 4: Analytical methods
4.1 Methodology used to collect data
The evidence, relevant data and information collected to support the Impact Assessment
were collected from the following sources:
Study by an external contractor;
Public consultation;
Other sources of information – EU Justice Scoreboard and the accompanying
factsheets; Eurostat surveys, data collected by CEPEJ; statistics on the
European e-Justice Portal.
The data used in the Impact Assessment is largely based on the Study. The
methodological approach used by the external contractor builds upon a variety of
research methods to ensure that all relevant data is gathered to perform an in-depth
assessment of the selected policy options and their impacts: (1) primary data collection
methods (e.g. interviews, focus groups, workshop); (2) secondary data collection
methods (e.g. desk research, national legal mapping in all 26 Member States (all Member
States except Denmark), legal review of EU standards, literature review etc.); (3)
quantitative analysis (e.g. costs benefits analysis) and (4) qualitative analysis methods
(e.g. content analysis). The policies and legislation are assessed transparently, based on
factual evidence and considering the views of the stakeholders concerned.
Specifically, the following stakeholder consultation activities were undertaken:
EU level focus group;
National stakeholder consultation on impacts of policy options
o National-level survey;
o Focus groups at national level;
Validation by stakeholders.
EU level focus group
The EU-level focus group was held online on May 4, 2021. The aim of the focus group
was to bring together the EU-level stakeholders that have knowledge and/or interest in
the topic concerned in order to:
Identify and discuss synergies with existing and planned digital channels of
communication with the JHA agencies, EJN-criminal, and JITs;
Analyse and discuss coherence with the e-IDAS and EU identity initiatives;
Identify technical solutions that could be proposed for the purposes of
digitalisation of cross-border judicial cooperation;
75
Identify and analyse problems and issues related to the use of digital solutions in
communications between the competent authorities of the Member States and
between those authorities and the parties to the proceedings;
Discuss potential impacts of the various proposed policy options, including
impacts on fundamental rights, such as the right to a fair trial, right to defence, the
right to data protection.
The focus group gathered representatives from relevant EU agencies (Eurojust, EU-Lisa,
European Judicial Network in criminal matters, European Judicial Network in civil
matters, FRA), institutions involved in EU pilots on digitalisation of cross-border
communication (The e-CODEX consortium, E-Evidence group), consumer associations,
legal and judicial practitioners, and NGOs.
National stakeholder consultation on impacts of policy options
The national-level targeted stakeholder consultation was concentrated around a limited
number of Member States (15 Member States), on the basis of the following criteria:
geographical criteria, e.g., larger and smaller Member States, Western and
Eastern Member States, Northern and Southern Member States;
Level of digitalisation of justice system, as assessed by the Justice Scoreboard,
having Member States with high, medium and low levels of digitalisation;
Participation in EU pilot projects, such as those for the e-Codex (e.g. European
Payment Order, Small Claims procedures);
Type of legal system.
The following Member States were selected for the national-level targeted stakeholder
consultation: Austria, Belgium, Croatia, Czechia, Estonia, Finland, France, Ireland, Italy,
Luxembourg, Poland, Portugal, Romania, Spain and Sweden.
The national stakeholder consultation was carried out by means of a (1) national-level
survey of selected stakeholder groups in the 15 representative Member States; (2)
national-level focus group with key stakeholders from the 15 representative Member
States.
National-level survey
The national-level survey in the selected 15 Member States aimed to:
Collect information for testing the legal, technical and political feasibility of the
policy options, their efficiency and effectiveness, proportionality and relevance for
the different categories of impacted stakeholders;
76
Gather additional qualitative and quantitative inputs on the likely consequences of the
policy options, to be included in the analysis of impacts and comparison of the
options.
The following groups of stakeholders were targeted by this exercise:
o National Authorities, most specifically Ministries (e.g. Justice, Interior
etc.), IT departments and agencies;
o National contact points of Eurojust and the EJN-civil and EJN-criminal;
o Organisations representing judges, prosecutors and courts in
civil/criminal/commercial areas;
o Organisations representing legal/judicial practitioners in the civil,
commercial and criminal justice system (lawyers, notaries, bailiffs);
o Consumers’ organisations;
o NGOs involved in projects promoting digitalisation in judicial
cooperation;
o NGOs representing citizens interests (e.g. NGOs providing legal support
in cross-border proceedings);
o Chambers of Commerce or Business Associations providing legal support
services in cross-border proceedings to businesses (including SMEs).
The questionnaire for the national-level stakeholder consultation remained open in the
online survey platform Surveygizmo for approximately four weeks. Information about
the survey was disseminated among relevant stakeholder groups, with follow-up and
assistance provided, whenever necessary.
Data collected through the national-level focus group feeds into the analysis of policy
options and their impacts, as well as into the comparison of policy options.
Focus groups at national level
The focus group at national level was carried out online on the 15th July 2021. The
objective of the national-level focus group was to obtain an in-depth exploration of views
of national-level stakeholders on the proposed policy options and their potential impact
on various stakeholder groups. A total of 15 to 20 participants from the selected Member
States were invited, and an equal representation of all relevant stakeholder groups ((Legal
practitioners; Business organisations; Consumers organisations; NGOs providing legal
assistance and representation) was ensured. While mainly qualitative information was
collected through the focus group discussions, an attempt was made to also collect as
much quantitative information as possible.
Data collected through the national-level focus group feeds into the analysis of policy
options and their impacts, as well as into the comparison of policy options.
4.2. Methodology used to compare the policy options
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The comparison of the policy options was performed based on their impacts. The policy
options have been compared systematically, and their impacts presented in a user-
friendly format. Strengths and weaknesses have been identified both qualitatively and
quantitatively, to the extent possible. Specifically, each option has been evaluated with
regard to how it addresses the identified problems.
The table below outlines the criteria used for the comparison of policy options.
Table 3 - criteria used for the comparison of policy options
Criterion Key questions Indicators/methods for comparison
Coherence • To what extent is each policy • Identification of overlaps and/or
option coherent with other synergies between policy options and
relevant initiatives? relevant initiatives;
• To what extent is each policy • Identification of contrasts and/or
option coherent with wider EU discrepancies between policy options
policy? and relevant initiatives;
• To what extent is each option is • Identification of a preferred option,
contributing to establish a where possible.
coherent framework by reducing
the legal fragmentation across
Member States?
Effectiveness What would be the (quantitative Comparison of expected
and qualitative) effects of each effectiveness of each policy option
option? against the evaluation baseline;
Which policy option would be Comparison of expected
most effective in achieving the effectiveness of the policy options
set objectives of the current against each other;
initiative? Identification of a preferred option,
where possible.
Efficiency What would be the incurred costs Comparison of potential costs and
and benefits under each policy benefits borne by each stakeholder group
option? under each policy option;
To what extent will the costs Identification of a preferred option,
associated with the intervention be where possible.
proportionate to the benefits it is
expected to generate?
How proportionate will be the costs
of the intervention borne by different
stakeholder groups, taking into
account the distribution of associated
benefits?
Which policy option would be most
cost-effective?
EU added Are there clear benefits from EU Comparison of EU added value against
78
value level action? the evaluation baseline;
Can the objectives be met more Comparison of EU added value of each
efficiently (less policy option;
costly) at EU level? Identification of a preferred option,
where possible.
The application to each of the above criteria is described below to the identified policy
options is explained below:
Coherence refers to synergies between the proposed options and existing initiatives such
as e-CODEX, eEDES, the new e-identity initiative by the Commission and the digital
solutions under the Digital Criminal Justice Study. Under this aspect, similarities and
complementarities between initiatives on the one hand, and potential contrasts and
discrepancies between them on the other hand have been detected. The final aim of this
analysis was to identify the policy option(s) which would ensure the highest level of
coherence with the existing initiatives. Moreover, coherence refers also to the level of
harmonisation of the legal frameworks across Member States, involved under each
option. In this regard, the options aimed to reduce legal fragmentation across countries,
thus eliminating uncertainty for individuals and legal entities were identified. Finally,
coherence was examined with regard to the existing EU instruments in civil/commercial
and criminal law.
Effectiveness analysis considered how successful the proposed options would be in
achieving or progressing towards their objectives. It examined whether the objectives of
the initiative will likely be achieved or not.
Efficiency looked closely to the extent possible at both the likely costs and benefits of
the proposed options as they accrue to different stakeholders, identifying what factors
were driving these costs/benefits and how these factors related to the examined options.
The efficiency analysis was based on quantitative information collected through a
national-level online survey, as well as through bilateral e-mail exchanges with
representatives of Member States’ authorities. Since the quantitative information
gathered was heterogeneous, to overcome the encountered limitation of lacking
comparable national-level quantitative data, the efficiency analysis was complemented
with qualitative information (description of processes and types of costs and benefits
deriving from the options), collected through interviews with various stakeholder groups
in different Member States. The consultation with the relevant stakeholders revealed that
little to no statistical data is collected by the Member States on the number of the cross-
border cases, the cost and the length of the cross-border proceedings. Therefore statistical
inferences had to be made. Similarly, data on the means of communication between the
courts/competent authorities is not systematically collected. Therefore, the analysis was
based on the limited data collected through bilateral interviews with some of the
stakeholders and estimations were made on that basis.
79
The EU added value considered the arguments about the value resulting from the
proposed options that is additional to the value that would have resulted from
interventions initiated at national levels.
80
Annex 5: COVID19 impact on civil proceedings – national measures
Table 4 - Comparative Table of 14 April 2020
– COUN – Time limits in civil proceedings – Judicial organization and Judiciary – International/EU Cooperation
TRY
– AUST – Law on 22/03/2020 – Restriction of contacts between courts and – Case workers of Central
RIA parties. Authorities are working from home
(AT) – Procedural time limits open on 22/03 or time limits that – : communication by email is
under normal circumstances would have started to run after – General shutdown of specific courts if need be, recommended
this date are interrupted and will be suspended until 30-04- accompanied by the possibility to direct urgent –
2020. They will start running again. That means that a 14-day cases to other courts.
time limit will end on 15/05 and a 4-week time limit will end –
on 29/05.
–
– Exceptions (inter alia): payment deadlines, forced psychiatric
admission. In cases of imminent danger for safety or personal
freedom as well as in cases of irretrievable damages, the court
can end the interruption earlier.
–
– Limitation periods (e.g. prescription) are suspended between
22/03 and 30/04.
–
– Enforcement proceedings: Enforcement orders are only
carried out in the event of imminent danger to life, limb,
security or freedom or to avert substantial and irretrievable
damage. Possible stay of a forced auction of movable and
immovable property if the debtor faces economic difficulties
due to the COVID-19 pandemic. Evictions can be suspended
upon request if the debtor would otherwise become homeless.
– BELGI – Adopted measures (8 April 2020): – Adopted measures (8 April 2020): – Following the COVID-19
UM outbreak, the modality of work and
(BE) – – the organisation of the Belgian
Central Authorities in civil matters
– Limitation periods and deadlines for introducing judicial – In civil matters, judicial hearings that were have not changed, with the
remedies that expire between the 8th of April 2020 and the 3rd supposed to occur between the 10th of April 2020 exception that most Belgian
of May 2020 are extended by one month after the expiration of and the 3th of June 2020 (this may be extended Central Authority caseworkers
this period (i.e. postponed to the 3rd of June 2020). If need be, by the government) are cancelled when all only operate via telework. A few
the government may extend the final date of this period. parties have already sent their written agents continue to be present 1 day
conclusions. The judge shall take a decision per week, to check incoming post
and secure outgoing post, for
– without hearing, solely on the basis of the
written conclusions, unless the parties oppose. If instance with regard to service of
the parties oppose, the case will be postponed. documents.
– Deadlines in judicial proceedings in civil matters that expire
between the 8th of April 2020 and the 3rd of May 2020 and the
– Civil courts have resorted to using video –
expiration of which could lead to forfeiture or any other
damage, are extended by one month after the expiration of the conference tools when continuing to proceed
crisis period (i.e. postponed to the 3rd of June 2020). If need be, with handling cases in court. – A message has been sent out via
the government may extend the final date of the crisis period. the European judicial network to
This doesn’t apply to urgent matters. – all contact points indicating that
communications can continue to be
sent exclusively by e-mail to the
– – Foreseen measures:
caseworkers. The Belgian Central
Authorities remain available by
– Foreseen measures: – telephone and e-mail. It has been
advised to send new requests to the
– – The following regime should be finalised soon. functional mailboxes with regard
Legal deadlines that apply to notaries and that to child abduction, taking of
– Extension by 6 months of the deadlines in the context of expire between 3 April 2020 and the entry into evidence, legal aid, maintenance
judicial sales of immovable properties that expire between the force of the foreseen royal decree are extended obligations, and child protection.
18th of March 2020 and the 30th of June 2020. by one month. Notarized powers received from
March 13, 2020 to June 30, 2020 and which take –
– effect only from March 13 until June 30, 2020
will be free of charge. Notarized powers may be
– The treatment of individual cases
received remotely and electronically (on
– Suspension of enforcement proceedings against companies. could be delayed as a result of
electronic support and with an electronic
lower staffing. So far, all agents
identification and signature). Removal of the
remain active and cases continue to
requirement for witnesses and the presence of
be handled on a daily basis as
several notaries in an authentic will.
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before the COVID-19 outbreak.
–
–
– BULG – Specific legislation: – Court hearings – International legal assistance is still
ARIA provided by the Ministry of Justice
(BG) – - Law on the measures and actions during the state of emergency – and by the courts but might be
declared by a decision of the National Assembly of 13 March delayed.
2020, adopted on 23 march 2020 and amended on 6 April 2020. – Until the state of emergency is lifted, court
hearings, may be held remotely, ensuring direct –
– and virtual participation of the parties and
participants in the proceedings. Minutes shall be
– State of emergency: 13 March – 13 May 2020 drawn up for the meetings held and shall be
published without delay and the minutes of the
– Initially, the period of the state of emergency was fixed from meeting shall be kept until the deadline for
13 March until 13 April 2020. This period has been prolonged amendment and completion of the minutes. The
until 13 May 2020. court shall inform the parties when the hearing
will be held at a distance.
–
–
– Procedural deadlines:
–
–
– The Supreme Judicial Council has issued orders
for the provision of the necessary precautionary
- Suspension of deadlines:
measures to prevent the spread of the virus in
– All procedural deadlines in civil judicial, arbitration and
court buildings, for filing documents to courts by
enforcement proceedings are suspended except in the
mail or electronically, as well as for consultation
following civil and commercial litigation cases:
on the phone or electronically. For the
mentioned hearings, summons is served by
– 1. Cases for exercising parental rights only in respect of telephone or electronically.
provisional measures;
–
– 2. Cases under the Domestic Violence Protection Act only
concerning an order for immediate protection or amendment
– Registry proceedings
thereof, as well as in cases where the request for protection is
rejected;
– The services provided by the Commercial
83
– 3. Permits for withdrawal of funds from children's deposits; Register and Register of non-profit legal entities
and other registers are accessible online.
– 4.Interim proceedings;
–
– 5. Evidence preservation cases;
–
– 6. Requests under the Electronic Communications Act and in
connection with termination of registry proceedings on the – Notarial procedures
basis of an act of the court under the Law on the Commercial
Register and the Register of Non-Profit Legal Entities; – Notarial procedures are limited only to the
emergency ones. Notarial proceedings shall be
– 7. The cases under Art. 62, para. 3 of the Credit Institutions limited to urgent matters while complying with the
Act. concerning signing a declaration pledging to safeguard hygiene requirements. The Notary Chamber shall
bank secrecy; provide notaries on duty in a proportion of at least
one notary per 50,000 residents for the area of
– Тhe prescription periods upon the lapse whereof rights are practice concerned.
extinguished or acquired for individuals are suspended.
–
– All public sales and coercive seizures of possession, announced
by public and private enforcement agents, shall be suspended. –
After the lifting of the state of emergency, the public sales and the
coercive seizures of possession shall be scheduled anew without –
levying new fees and costs.
–
–
- Extension of deadlines:
– Deadlines established by law (except in the cases mentioned
above), expiring during the times of the state of emergency
and which are related to the exercise of rights and obligations
of private persons, are extended from 1 month as of the end of
the state of emergency.
–
– Specific cases:
– The bank accounts of natural persons and of medical-treatment
facilities shall be immune to preservation orders, labour
84
remunerations and pensions shall be immune to attachment
orders, protective measures shall not be imposed against medical
apparatus and equipment, and an inventory shall not be taken of
corporeal movable things and corporeal immovables owned by
natural persons, except for maintenance obligations, for damages
sustained as a result of a tort or delict, and for claims for labour
remunerations.
–
– Exempted from preservation/ protective measures shall be bank
accounts of individuals and medical establishments, salaries and
pensions, medical apparatus and equipment. No inventory of
movable property and real estate owned by individuals shall be
made, except for liabilities for maintenance, for damage caused
by illicit injury and for claims for salaries.
– The fulfilment of an obligation to surrender a child or the
subsequent return of a child in accordance with the Civil
Procedure Code shall not be suspended.
–
– Until the state of emergency is lifted in case of delay in
payment of obligations of individuals, debtors under credit
agreements and other forms of financing (factoring, forfeiting
and others) provided by banks and financial institutions under
Art. 3 of the Law on Credit Institutions, including when
receivables are acquired from other banks, financial
institutions or third parties, and under leasing contracts, no
interest and penalty interest are charged, the obligation
cannot be declared early due and the contract it cannot be
terminated by default and no property can be seized.
–
–
– CROA – On 18 April 2020, amendments to the Act on Enforcement – All judicial authorities continue to work. – Parties must send their inquiries,
85
TIA over Monetary Assets entered into force : enforcement on However only those proceedings that have been requests and applications to the
(HR) accounts of natural persons are suspended for 3 months identified as urgent are carried out by Ministry of Justice during regular
(with a possible extension of additional 3 months). appropriate security measures. Hearings and office hours by email, telephone
– The calculation of statutory interests is also suspended for the other non-urgent cases have been postponed and postal service providers.
same time period. until further notice.
– –
– – In cases where judges can make decision as
single judges or in which the hearing is not – International legal assistance is still
required, it is first of all necessary to make provided but might be delayed.
decisions from home and then arrange for their
dispatch. Heads of the judicial authorities have –
the mandate to allow employees to work from
home where possible.
– Communication with parties and all
participants in proceedings is done
electronically in all cases where that is possible.
In cases requiring meeting or hearing, all
precautionary measures imposed by the health
authorities should be taken. In each situation, the
technical means of distance communication
available to judges and courts, including within
the court (email, videolink, etc.) should be used.
–
– It is also recommended that enforcement
proceedings, especially enforcement related to
vacating and handing over of real estate are
postponed.
–
– Due to the outbreak of epidemic of COVID-19
in Croatia all electronic public auction
openings in enforcement and insolvency cases
have been postponed, except those in which the
bidding has begun by March 24, 2020 at the
latest, which are to be finished according to
published Calls for participation in Electronic
86
Public Auction.
– All requests for sale received after the 13th of
March, 2020, which have not been processed,
will be processed upon termination of special
circumstances of epidemic of COVID-19. All
published Calls for down Payment for Costs and
Calls for Participation in the Electronic Public
Auction will be put out of force and will be
reissued under the same conditions of sale by the
end of the special circumstances of outbreak of
epidemic of COVID-19.
–
–
– CYPR – Procedural time limits are suspended until 30.4.2020. – All hearings and other procedures are –
US suspended until 30.4.2020. Exceptions:
(CY) – application for extremely urgent interim order,
extradition proceedings and other proceedings
– dealing with restrictions to personal freedom
(e.g. illegal detention, detention in a psychiatric
institution.)
– The Registrar accepts the filing of an action
only if it is supported by an interim order
application and provided that it is
– urgent for it to be heard. The matter of urgency
is to be examined and decided by the judge.
– CZEC – Several measures have been taken to alleviate the most urgent – The Ministry of Justice recommended – Office for International Legal
HIA difficulties of citizens with regard to court proceedings, postponing all court hearings. If postponement Protection of Children ( Brussels
(CZ) executions or insolvency proceedings. Extensive use of not possible, it must be carried out strictly in line IIa & Maintenance Regulation) :
existing provisions of the codes of procedure on waiver of with the Government Regulation on State of The Office's agenda will be carried
missed time limits in court proceedings, if the time limit was Emergency. Public is excluded in court hearings out in the state of emergency
missed due to limitations resulting from the extraordinary and its movement within the court building mode; all personal contact with
measures (mandatory quarantines, restrictions on movement restricted. the Office shall be replaced by
written (written or electronic) and
87
and gathering of persons). – Information provided by courts via telephone contact; Office hours
telephone/email. shall be limited to Mondays and
– Wednesdays from 9 am to 12 pm.
–
–
– Delay in legal proceedings resulting of the
application of this recommendations will not be – Czech Ministry of Justice
considered by MoJ as delays in the exercise of (Central authority for Service of
its supervisory powers. Document & Taking of Evidence
Regulations) : Staff members
– (including all contact points) are
currently mostly working from
– Notarial service still available to the public, but home. Electronic
work carried out in restricted mode. communication/distance
communication are strongly
recommended. All time limits
should be kept.
– The only complication is the
increasing restrictions on postal
services in some States, which we
try, in agreement with the Ministry
of Foreign Affairs, to overcome by
use of diplomatic channel for
service of judicial documents.
Foreign Central authorities should
advise the courts/competent
authorities to send all requests on
service of documents and taking of
evidence directly to the competent
courts and not via Central
Authority (Ministry of Justice) as
this will currently significantly
shorten the time limits for
successful execution of the request.
– DENM – No measures directed at legal proceedings have been – The Danish courts have initiated an emergency – In general, the Danish Courts seek
ARK introduced so far. procedure in order handle certain critical areas. to handle as much work as possible
(DK) The critical areas, which continue to be dealt from home workplaces during the
with locally by the courts, are particularly by law
88
– time-bound cases or are particularly intrusive. emergency period.
–
– It is up to the courts to make an assessment in
each case whether a case fulfills the conditions
to be ‘critical’, and it is also up to the courts to
organize the work taking into account the
circumstances.
–
– The decision to prioritize critical cases entails
that a number of significant case types, including
cases with physical court meetings, will not be
prioritized. These cases are postponed until
further notice.
–
– The Danish Courts seek to handle as much work
as possible from home workplaces during the
emergency period. The Danish Court
Administration has secured the possibility of
establishing home workplaces for all employees.
In addition, court employees can (to a limited
extent) be physically present in the courts in
order to ensure that they themselves and others
can solve tasks from home.
–
– As far as possible, the courts use telephone
conferences to prepare cases in several areas of
law, including civil cases and bailiff cases. The
family courts handle cases as far as possible
without physical attendance. There are also
certain probate cases that can be processed by
phone.
89
–
– The Crisis Committee (consisting of The Danish
Court Administration and a group of Presidents
of the courts) have also called for the courts to
consider, as far as possible, whether the current
situation gives rise to further use of video
conferencing, if it is deemed sound from a rule
of law perspective.
– ESTO – General information in English may be found at the – State of emergency from 12/03 to 01/05. – The Estonian Central Authority has
NIA Government’s webpage been teleworking as of 13 March.
(EE) – Communications (messages and
– documents) are established by
– In general, virtual meeting rooms have been created to raise email (in civil matters and most of
– Procedural time limits are extended by courts on a case-by- the capacity of the Ministry of Justice, courts, prosecution the criminal matters). If needed,
case basis. Courts will take in to account the additional burden, offices and prisons to hold video conferences. This solution original documents will be sent via
tasks or difficulties for parties to a proceeding due to the crisis. can also be used to hold oral hearings with parties to airmail after the emergency
proceedings. In addition, available video conference situation ends.
– equipment has been relocated to support the increase in
demand within courthouses and prisons. –
– No legislation on the extension of deadlines, judges have the
discretionary power to set longer deadlines in the future or to –
extend existing deadlines.
– No legislative change regarding court
– proceedings. The Council for Administration of
Courts has issued recommendations. The work
– However, in order to prevent the spread of the COVID-19 of Estonian courts is reorganised (opening hours
virus by avoiding physical human contacts in care facilities the 9.00–13.00) and courthouses on working days
terms for which mentally ill persons have been placed in a until 14.00.
psychiatric hospital or a social welfare institution as well as
hospitalisation of persons suffering from a communicable –
disease will be suspended (MoJ proposal):
– Where possible, cases are handled in writing
– - in the case of extended provisional protection, for the through the information system of courts and by
duration of the emergency situation; means of a digital court file application.
– - in the case of placement, for the duration of the emergency –
situation and up to two months after termination of the
90
emergency situation. – Urgent hearings and cases are held by
electronic means of communication, and if not
– This is without prejudice to the obligation to terminate any possible, the Court decide on a case-by-case
placement and any application of provisional legal protection basis. The following cases could be considered
after the prerequisites for placement have ceased to exist or it as urgent : placing a person in a closed
becomes evident that the prerequisites were not fulfilled. institution; separating a child from his or her
family; establishing guardianship for an adult. In
– non-urgent case, electronic means of
communication can be used by the court (or any
other means necessary), but generally the court
– In the area of law of obligations, currently no fundamental
would postpone the hearing and/or the
changes. The Ministry of Justice has analysed different legal
procedural act.
options already provided in Estonian law and could be used in
this difficult time. The focus has been on providing
explanations and on answering information requests. There –
have also been proposals for amending certain rules in the area
of law of obligations, but that discussion is still ongoing. – According to the Code of Civil Procedure the
court in exceptional and urgent cases related to
– children can give preliminary / protective orders
without hearing them – many judges have used
this possibility.
–
–
– Service of procedural documents are
preferably executed by e-File and email.
–
– The Chamber of notaries authorized notaries to
take all measures, such as the remote
authentication service e-Notar which allows for
the performance of notarial acts using a video
bridge: while up until April 6 only certain types
of acts could be done remotely (power of
attorneys, sells of shares of private limited
companies and a few more) then as of April 6 all
kinds of acts can be remotely authenticated (the
only exceptions are concluding marriages and
divorces). So, even real estate can be sold now
via online authentication. And this does not
91
apply only during the crisis, but also after the
quarantine is over. The clients can do it from
wherever they are (if the notary agrees with it -
the remote authentication is still voluntary for
the notaries, i.e. they may refuse to do it).
–
– The Estonian Bar Association has also
encouraged its members to work remotely and to
use all technical means of communication to
continue providing legal counsel. It has also
stressed the need to ensure attorney-client
confidentiality. The Bar Association has further
emphasized that limitations on rights imposed
due to the emergency situation must be justified
and should be challenged if this is called for in a
particular case. Attorneys also have a duty to
adapt quickly to changes in the working
environment, show flexibility and innovation
and to ensure that the possibilities for requesting
extensions for time limits are not abused.
–
– The Chamber of Bailiffs and Trustees in
Bankruptcy has also announced that bailiffs and
trustees in bankruptcy have reorganized their
work in order to work remotely.
–
–
– FINLA – – Courts remain independent. However, the – International legal assistance is still
ND National Court Administration (NCA) gives provided, but Courts prioritise
recommendations to courts on their cases according to the resources
92
(FI) management. available.
– –
– NCA has provided guidelines recommending – Most of the caseworkers in the
courts to continue handling cases, with Finnish Central Authority
precautionary measures, for instance physical (Regulations 2201/2003, 4/2009,
presence should be limited to urgent case. The 1393/2007 and 1206/2001) are
NCA advises courts to hold hearings by currently teleworking. There is
videoconference, or by other available and limited presence in the office for
suitable technological means. urgent cases. Communication by
email is recommended when
– possible:
– Many court sessions scheduled in the coming –
[email protected]
weeks are cancelled.
– and
–
–
[email protected]
– Contacts to the courts is encouraged to be made (maintenance matters only).
primarily by phone and email.
–
– FRAN – Time limits (procedural), including limitation periods, – Courts deal with urgent cases (hearing – Regarding judicial cooperation,
CE expiring between 12/03 and the end of the state of emergency regarding civil freedom and custody in civil requests continue to be dealt with
(FR) period +1 month are extended. At the end of the matter, enforcement, child protection, family but competent authorities prioritize
aforementioned period, all time limits resume normally but court urgent case, including protection orders, urgent cases. Central authorities
within a limit of 2 months. The extended period does not and emergency interim proceedings). have to be seized by e-mail.
however restrain parties to seek remedy or to exercise their
rights of action in any possible manner during the state of – –
emergency period, to the extent possible.
– Non-urgent hearings are cancelled or postponed, – Family cooperation (Regulation
– sometimes sine die. In this case courts inform 2201/2003): In the field of
parties by all means, including by electronic international child abduction and
– In principal, performance duties and time limits provided for in communications. protection of children, the French
contracts are not affected, national law being applicable to central authority caseworker
specific circumstances (force majeure etc.) will apply. – telework and continue to deal with
However, contractual sanctions of non-performance from ongoing cases and new requests
93
debtor (penalty clause, termination clause etc.) are deemed – In case a Court cannot work, another court can received by e-mail. For urgent
ineffective within the state of emergency period, and will only be designated to deal with urgent cases. All requests, caseworkers will be
enter into force after a period of one month following the end hearings and sessions can be closed to public physically present in the office. All
of the state of emergency period, if the obligation has not been or canceled. Parties can seize the court only in other central authorities have been
performed by that time. writing. Any type of communication informed about this new temporary
(including phone, emails or letters) can be organization.
– used for the judge to inform/hear the parties
during the course of the proceedings. Cases can – Concerning child abduction, some
– Contract penalties, renewals and notice periods provided by be dealt by a single judge. courts hold hearings for cases
law are also suspended. reported as urgent, while other
– courts prefer postponing.
Enforcement of decisions is
– Parties are informed of the court decisions by postponed to the end of the health
all means, in particular by email or by phone crisis, except for specific cases.
(decisions will not be considered as served to the
recipient). –
– – Taking of evidence (Regulation
1206/2001): French central
– Concerning protective measures for children and authority deals with ongoing cases
adults, those that expire during the state of and new requests through
emergency period are automatically extended, electronic means and replies,
unless the judge decides otherwise. where needed by email. However
courts will only execute taking of
– evidence requests after the end of
the emergency state.
– Enquiry and mediation measures are suspended
and are extended by an additional two months –
after the end of the state of emergency period +
one more month. – Service of documents (Regulation
1393/2007): Under the current
– circumstances, service of
documents is significantly slowed
down. Electronic service can be
performed on the condition that the
recipient has given prior consent.
Where electronic service is not
possible, the service of document
might be postponed if not urgent.
94
–
– The French Central Authority
under these three regulations
(2201/2003, 1206/2001,
1393/2007) communicates by
email: entraide-civile-
[email protected]
–
– The French Central Authority
under regulation (CE) 4/2009
relating to maintenance obligations
communicates by email :
obligation.alimentaire@diplomatie
.gouv.fr
–
– GERM – So far, no measures on civil time limits, only provisions – Statutory provisions for civil proceedings – Family cooperation (Regulation
ANY regarding the longer interruption of criminal proceedings was already provide the courts with an extensive 2201/2003):
(DE) adopted. scope to react flexibly to the current exceptional
situation. It is for the respective courts and – The Federal Office of Justice as
– judges to decide what measures are taken in each German Central Authority under
individual case. Judicial independence is Regulation 2201/2003 (Brussels
– (German civil procedure law contains provisions regarding the preserved. IIa) has reduced physical presence
extension of time limits, stay of proceedings and the restitutio of staff for protective health
in integrum which help in litigation during the Covid 19 crisis – reasons, but is otherwise fully
operable on reduced capacity.
– –
–
– For further information on legislative actions the webpage of
the Federal Ministry of Justice and Consumer Protection can – Taking of evidence (Regulation
be consulted 1206/2001) and Service of
https://www.bmjv.de/DE/Themen/FokusThemen/Corona/Coro documents (Regulation
na_node.html 1393/2007):
– It should be noted that especially
the execution of request for the
95
– taking of evidence remains at the
discretion of the judge. In general
it can be said that the working
capacities of the courts are
severely limited do to absence of
judicial personnel.
–
– GREE – – By Ministerial Decision, all procedures carried – Precautionary and containment
CE out before the Greek courts and their services measures have been adopted by the
(EL) are suspended until 27 April, with the Greek Government in order to
exception of urgent and significant actions and address the danger of the spread of
cases. The operation of the judicial services is the coronavirus, its socio-economic
limited only to the necessary actions to carry out impact and to ensure the good
the necessary work and urgent cases. Meetings functioning of the market and the
and any other action related to the operation of public sector.
the judiciary is carried out remotely, if possible,
using technological means. – The Ministry of Justice, in its
capacity as Central Authority
under Civil Law
Conventions/Treaties and in
compliance with EU Regulations
on Judicial Cooperation in Civil
and Commercial Matters, has
established a mixed system of
remote working and physical
attendance at the workplace in
rotation.
– Until now, the Central Authority
is almost fully operational,
although occasional delays in
processing some requests are
inevitable due to the persisting
health crisis.
–
– HUNG – As a general rule time limits continue to run during the – Access to justice and the continuity of the – With regard to judicial cooperation
96
ARY period of the state of danger. The only exception on this is pending proceedings is ensured, there is no in civil matters, there are
(HU) where the procedural act in question cannot be carried out recess for courts of justice in Hungary. restrictions on enforcement
in writing or by electronic means (i.e. procedural acts which procedures during the state of
require personal contribution and cannot otherwise be carried – danger. With regard to the
out) which brings the proceedings to a halt. In this case the enforcement measures, for
period until the obstacle has been removed or the period until – In the courts procedural acts requiring example no on-site proceeding and
the end of the state of danger shall not be counted in a time physical contact are not performed. Special no auction of real estate may be
limit. procedural rules facilitate written conducted. Enforcement measures
communication, remote hearing and hearings may not be ordered in respect of
– using electronic means of personal identification. acts of transfer of children in cases
of illegal child abduction and on
the basis of Brussels IIa.
–
–
– The Central Authorities are
operational.
–
– Execution of requests for legal
assistance may be delayed in
comparison to normal
circumstances.
– IRELA – No specific legislation on time limits. Issue of proceedings – Court offices will remain open, and are – Staff of the Ministry of Justice and
ND where the statutory time limit to issue will expire before the accepting urgent papers. Drop boxes are being Equality and the Central
(IE) end of the “restriction” period are considered essential business provided for documents to be left in, reducing Authorities are mostly working
(see second column). the need to interact with staff at the public from home. Communication by
counter. Court offices can continue to be email only is preferred.
contacted by email or by post.
–
– Civil matters can be adjourned by consent via
e-mail. Only urgent cases will go ahead in the
coming weeks.
–
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– Applications relating to urgent Family Law
matters are allowed, including protection orders,
interim barring orders, emergency barring
orders, extension of orders.
–
– Applications can also be filed for essential
business such as urgent wardship matters or
urgent judicial review applications.
–
– Videolink appearances are being facilitated from
prisons for all people currently in custody
following order of President of the High Court.
–
– Piloting underway to facilitate courts hearings
remotely and by video with the consent of the
parties.
–
–
–
– ITALY – Time limits for exercising judicial acts within civil – Most civil hearings scheduled between the day – A significant part of case Ministry
(IT) proceedings were initially suspended for the period 9/03 to following the entry into force of the decree (9 of Justice staff members are
22/03 (then postponed to 15/04). March 2020) and 22/03 (then 15/04, and finally working from home.
11 May) will not take place due to a mandatory
– Decree Law No 23 of 8 April 2020 extended the postponement postponement. –
of hearings and the suspension of procedural deadlines until 11
May 2020. – – The judicial cooperation in civil
matters will be affected for an
– – All hearings scheduled during the crisis period unpredictable period of
time. Electronic communication of
98
– will be postponed (except urgent case). requests of judicial cooperation
(including request for information
– Where a time limit would normally begin during the period of – on foreign law under the London
suspension, the starting point is delayed until the end of the 1968 Convention). The documents
latter period. – Local courts can adopt their own sent in hard copy may be processed
organizational measures (restricted access to with a significant delay.
– buildings, office closed). –
– All communications to be sent to
[email protected]
– Exceptions: adoption of children, unaccompanied minors, –
foster care, compulsory health treatment, VTP, provisional
enforceability & all matters entailing a risk of serious prejudice –
to the parties.
– In particular, for non-suspended activities (those
that have been declared urgent on a case by case
basis or those considered by the law as top
priority), civil hearings that require the presence
of lawyers or parties only, subject to the respect
of the adversarial process and the effective
participation of the parties, may be held through
remote connections. For this purpose, a decision
by the Heads of the judicial offices is necessary,
after hearing the advice of the Bar Association.
– For the period between 11 May and 30 June
2020, the Heads of the judicial offices are than
expected to take a series of organisational
measures in order to avoid close gatherings and
contacts between people within each office
space.
– These measures may include:
– - the carrying out of civil hearings by means of
remote connections that require the presence
only of lawyers or the parties, subject to the
respect of the adversarial process and the
effective participation of the parties;
– - the postponement of hearings after 30 June
99
2020;
– - the holding of civil hearings that require the
participation only of the defendants through
written procedure.
– LATVI – Written civil procedure if it does not violate rights of – The Republic of Latvia has issued Guidelines for – In the event of emergency all the
A (LV) parties and court finds it possible. Instead of postponing the organization of the work of the district (city) requests and attached documents
court hearings Latvia has switched to written court procedure and regional courts during the emergency. are accepted sent electronically
unless it is absolutely necessary to hold a proper court hearing Those guidelines recommend that in urgent (via email) maintaining a moment
or there is high urgency to examine the case or there is high cases, hearings in the event of an emergency of credibility. MLA requests are
risk of grave infringement of rights. shall, where possible, be organized by means of scanned and transformed to PDF
a video conference form and forwarded to foreign
– countries from the official e-mail
– of the Ministry of Justice. The
– Limitation periods (e.g. prescription) are suspended between same is accepted from other
12/03 and 01/07. – If the hearing is organized in person, the countries.
necessary distance shall be provided between the
– persons at the hearing and other precautions shall –
be taken (rooms to be ventilated, etc.).
– Enforcement proceedings: the maximum term of voluntary
fulfillment of obligations under the judgment concerning the –
returning of goods, recovery of debt, evictions from premises
is prolonged from 10 days to 60 days except the cases when –
judgment should be enforced immediately.
–
–
–
– Commercial pledge. Time limits for taking the decision on
delivering the commercial pledge is prolonged form 30 days to
60 days.
–
–
– LITH – Lithuania has not adopted official legal acts suspending or – Judicial Council has issued recommendations to – Most public authorities’ employees
UANI extending procedural deadlines in civil cases. The renewal or the Chairpersons of the Courts regarding the work remotely. International legal
extension of procedural time limits is decided on a case-by- organization of work in their respective courts assistance is still provided, but
100
A (LT) case basis by the court hearing the case. during quarantine period, leaving the some processes can take longer.
specification of the recommendations to the –
– discretion of each Chairperson.
–
– The Judicial Council circulated recommendations to courts, – Civil proceedings, where possible by written
urging Lithuanian courts to “flexibly assess requests from procedure, take place in the normal way. In
individuals to renew a missed deadline for submitting a civil cases where an oral hearing is mandatory
procedural document or to perform a procedural action” and the parties have expressed a position that
during and after the quarantine period if said actions were they wish to take part in the hearing, the
impeded by the emergency state declared in the Republic of scheduled oral hearings shall be adjourned
Lithuania and subsequently altered organization of work in without a date, informing the participants in the
state institutions. The person requesting to renew missed proceedings, agreeing on possible preliminary
deadlines shall provide the court with the data substantiating hearing dates with the parties.
such circumstances together with the request –
– Oral proceedings in courts are limited to civil
cases that must be dealt with immediately, such
as civil cases concerning the court's permission
to extend involuntary hospitalization and/or
involuntary treatment, the removal of a child
from an unsafe environment, cases provided for
by the CPC and giving priority to the
organization of oral meetings remotely if the
court has the means to do so;
–
– In urgent cases, safety recommendations are
followed during oral proceedings (social
distancing, courtroom disinfection)
–
– Judicial procedural decisions are sent by
electronic means of communication, giving
priority to the judicial information system. In
exceptional cases, documents are sent by e-mail
and regular mail to persons who do not have
access to the judicial information system.
Procedural documents and other correspondence
are sent to non-participants in the proceedings
(e.g. bailiffs, notaries) via the state E-delivery
system or by e-mail, and only in exceptional
cases by post. Communication/cooperation takes
place by electronic means of communication, by
telephone.
101
–
– Upon the suspension of the direct service of
persons in the courts, procedural documents are
received electronically or sent by post.
–
– Bailiffs: After transitioning to working remotely
as of 16-03, judicial officers are continuing to
provide most of their regular services to creditors
and debtors during the quarantine period. While
direct contact is limited, judicial officers and
their employees will communicate with
participants of proceedings by phone, e-mail, via
the website www.antstoliai.lt or by regular mail.
The current quarantine is also not an obstacle for
the submission of new enforcement orders:
written enforcement orders may be submitted to
judicial officers by mail, and electronic
enforcement orders – by e-mail or via the
Internet by logging into the Judicial Officers'
Information System at http://www.antstoliai.lt/.
During the quarantine period, judicial officers
shall also refrain from announcing new auctions.
–
– Regarding the organization of the notaries’
work, draft amendments to the Law on the
Notarial Profession and the Civil Code are being
prepared. They provide that the majority of
notarial services will be moved online and
provided remotely. The draft amendments
propose granting notaries the right to perform
remote notarial acts and execute them as
electronic notarial documents. The information
will be transmitted to operating state registers
and information systems. Visits to notary offices
would be reserved solely for the direct
identification of a person or expressed will. It is
also planned to refuse the participation of a
notary in approving some simpler mandates and
enable electronic registration of mandates for
which a notarial form is not required. The remote
notarial services will exclude certification of
102
wills and their acceptance into custody, as well
as authentication of the fact that a person is
alive. Also Notaries should not provide remote
services if they believe that they would be able
to ensure better protection of a client’s legitimate
interests only when meeting with him or her in
person or in case they need to document a
person’s will, explain the consequences of
notarial acts or ascertain a person’s identity.
–
– Regarding the provision of state-guaranteed
legal aid services, recommendations have been
published on the State-guaranteed legal aid
service webpage. It is strongly advised to avoid
personal contact and organize the provision of
legal aid using remote working tools, i.e. send all
request by e-mail, provide consultations by
phone, online or use other means of
telecommunication. In urgent cases when the
participation of an advocate is necessary in
certain pre-trial investigation actions or court
proceedings, act with due care, follow national
guidelines for preventing the spread of Covid-19
(safe distance, hygiene, etc.), refuse to attend
proceedings if adequate protective measures
have not been taken (e.g. the room is not
ventilated, there is no disinfectant, suspicions
regarding the health of others in the room arise).
–
– The Lithuanian Bar has also published similar
recommendations to all practising advocates in
Lithuania.
–
–
–
103
– LUXE – The state of crisis, based on a grand-ducal regulation of – The Judicial Administration has put in place the – All instruments in the field of
MBOU March 18,2020 introducing a series of measures in the context necessary measures at this stage of the pandemic judicial cooperation in civil and
RG of the fight against Covid-19, has been extended for three to, on the one hand, to guarantee a reduced criminal matters are executed and
(LU) months by a law on March 24,2020. functional service and on the other hand to emitted by the central authority,
safeguard as much as possible the health of all the Prosecutor General. The
– employees. working rhythm has been
somewhat reduced to allow a
– The parliament cannot be dissolved during the state of crisis, – These provisions are taken in strict maximum of people to work from
preserves all its legislative powers and can at any moment, compliance with the Constitution and home.
during the period of three months, adopt a law to end the state Luxembourg's international commitments
of crisis. The decrees adopted during this period legally cease especially those relating to fundamental –
to exist the day the state of crisis ends. rights. They are applied according to the
criteria of necessity and proportionality.
–
–
– The government adopted at the council of government on
March 25, 2020 a grand-ducal regulation drawn up by the – As part of the fight against coronavirus, many
Ministry of Justice suspending time limits in jurisdictional member states have imposed restrictions on
matters and adapting certain other procedural modalities. movement. Luxembourg has done so too, whilst
providing for a number of exceptions to these
– restrictions (for instance for workers in the
healthcare sector and other essential sectors in
the current crisis).
– A general provision suspends all the time limits prescribed in
the proceedings before the judicial, administrative, military and
constitutional courts. The text provides for some exceptions –
concerning the deprivation of liberty for which swift decisions
must be taken. – One of these exceptions provides that separated
parents are still allowed to leave their home for
– the exercise of their parental responsibility
especially for the exercise of the right of access
vis-à-vis their child.
– Time limits in civil and commercial matters
–
–
– The courts in Luxembourg are functioning at a
– Luxembourg suspended deadlines in legal proceedings and
extended certain deadlines in specific procedures. reduced pace but maintaining a sufficient level
of activity to process the essential and urgent
matters. During the period of the state of crisis,
–
requests and requests addressed to the chambers
of the council of the district courts and of the
104
– Luxembourg also set some exceptions particularly for urgent Court of Appeal are judged based on a written
matters that cannot suffer suspensions of deadlines. procedure.
– –
– The time limits for appeal or opposition are suspended. – The notaries continue their activity. Measures
were taken to grant derogations in certain legal
– procedures in order to reduce the need of
physical contact.
In tenancy matters, the enforcement of eviction sentences has been
suspended. The provision provides for the suspension of evictions in –
the area of residential leases. The deadlines for the execution of
evictions in terms of commercial lease were also suspended, as were – The lawyers are also continuing their activity
those for foreclosures and forced sale. and are encouraged -during the crisis -to use
– electronic means of communication with the
In matters of civil status, the period of 5 days within which birth courts.
declarations must be made is suspended. For marriage certificates,
the possibility of dispensing with the publication of banns eliminates –
any time constraint.
– – As to avoid physical contact, the bailiffs serve
A specific provision provides for the suspension of deadlines in documents not on the addressee in person but at
matters of succession, outside any judicial procedure. It is the address of the addressees only in their post
important to preserve the rights of citizens, insofar as the liquidation
boxes.
of successions is a very formalistic procedure with many delays.
–
It is planned to extend for three months the deadlines for filing and –
publication of annual accounts, consolidated accounts and
related reports of companies. This only applies to financial years –
closed on the date of end of the state of crisis and for which the
deadlines for filing and publication had not expired by March 18,
2020.
–
–
–
– MALT – As from 16-03 all legal and judicial times, including – With effect from the 16-03 the Courts of Justice – Cross-border judicial cooperation
A prescription in civil matters and any peremptory time limits and registries were closed - including the continued on a business as usual
105
(MT) have been suspended until seven days after the Order for superior, inferior and appellate courts; any basis - of course as far as this is
closure of the Courts is lifted. tribunal established by law operating from the possible under the present
building of the Courts of Justice; and any boards, circumstances particularly in the
– commissions, committees or other entities, also context of reduced activity in the
operating from the same building of the Courts, Courts and reduced international
– Apart from this, all ex lege time limits imposed upon Notaries and before which any proceedings are heard. travel.
Public have also been suspended during the time when the
Courts are closed. The time limits for concluding a sale – –
stipulated in a registered promise of sale agreement were also
suspended. The suspension of time limits concerning Notaries – Despite this closure, the Courts have
shall last until twenty days after the Order for the closure of the nevertheless been given the power to order the
courts is lifted. hearing of urgent cases or of cases where the
Court deems that the public interest should
– prevail in having the case heard. This was of
course, however subjected to any specific
arrangements for the guarding against the spread
of the virus as the court may determine.
– NETH – – Following the measures announced by the Dutch – The central authorities in the
ERLA government on March 15, 2020, up to and Netherlands are mostly working in
NDS including April 6, to combat the spread of home office. Communication by
(NL) COVID-19, the judiciary has accordingly taken email is recommended.
the following measures:
–
–
1. The courthouses have been closed since March
17, 2020. This means that physical sessions will not take
place from that date until April 6, unless there is an urgent
need for a hearing.
2. Urgent matters will continue, but as much as
possible with the use of audio-visual means. Urgent matters
include far-reaching decisions such as placing children out
of the house, supervision orders and the detention of aliens
for the purpose of deportation.
3. Justice is a vital process in the democratic
constitutional state and must therefore continue in this
crisis. The Judiciary does this by handling as many cases as
possible in writing or with the aid of audio-visual means.
4. On March 31, 2020, the Dutch Government
106
decided to continue the measures previously taken until
April 28, 2020. In line with this, the Judiciary has decided
to continue the measures previously taken, but also to
increase the number and type of cases that are handled
using audio-visual resources. In this way, it is possible to
prevent the work stocks becoming too big.
5. Extending the handling of cases is possible,
because many extra possibilities have been realized in
recent weeks to make the use of audio-visual means and the
digital submission of procedural documents.
6. The Judiciary has provided for a temporary
adjustment of the procedural regulations for all
jurisdictions and has created a page on its website with all
current overview and instruction on how to work during the
COVID-19 crises. www.rechtspraak.nl
7. The Dutch government is working on an
emergency law that will, among other things, temporarily
enhance the possibility of making use of audio-visual
means in the Judiciary and facilitate the progress of cases.
–
– POLA – The Polish special legislation provides, among other things, for – Specific measures have been adopted to mitigate – Ministry of Justice employees
ND the suspension of a not yet started and postponement of the negative consequences of the COVID-19 working in the central authority are
(PL) commenced: pandemic including. teleworking.
– • limitation periods of enforcement of judgements, – –
– • time limits in proceedings and for court's actions in legal – The transfer of cases among Polish courts (by – All communication to the Polish
proceedings, including in enforcement proceedings. judicial authority and for a defined period in Ministry of Justice as the Central
urgent cases as defined by the special legislation Authority (including service of
– concerning mitigating impact of the COVID-19 documents and taking of
pandemic on the Polish justice system) has been evidence), or Polish EJN contact
– made possible. point must be sent through
electronic means with necessary
– attachments in the form of scanned
copies.
– The category of urgent cases is defined as
following:
107
– 1. Proceedings concerning minors including:
– - proceedings for the removal of a minor from
parental authority or custody;
– - proceedings concerning placement of a
foreigner minor in a care and educational
institution;
– - proceedings for the establishment of a guardian
to represent the interests of a minor in judicial
proceedings;
– - proceedings regarding placement or extension
of a juvenile's stay in a juvenile shelter;
– - enforcement proceedings involving minors.
– 2. Proceedings concerning mentally ill and
incapacitated persons
–
– The president of each competent Polish court
may order that any case be considered urgent if
the failure to adjudicate on such a case: - could
cause danger to human or animal life or health;
– - could cause serious harm to the public interest;
– - could cause imminent and irreparable material
damage;
– - and when urgent adjudication on such case is
required by the interests of justice.
–
– Detachment of judges to other courts is
108
simplified. Decisions in that regard are taken by
judicial authorities, in accordance with the
principle of independence of judges and for a
period of time defined in advance. Such
procedures will enable to provide support courts
experiencing a heavier caseload.
–
– Suspension and postponement of court’s
proceedings is also possible in certain cases.
–
–
– PORT – The state of emergency was declared. – Any procedural acts are permitted through – EJN Civil contact point are
UGAL tele/video conference. currently working from home,
(PT) – The national legislation concerning the Judiciary is: Decree 14- processing all the requests for
A/2020, Decree 17-A/2020 and Law 1-A/2020 amended by – cooperation and information as
Law 4-A/2020. swiftly as possible. However the
– The use of email instead of telephone is suspension of time limits and
– recommended to seek information from Courts. periods set forth Portuguese special
law applies.
– In judicial processes deadlines are suspended within a –
period to be ended by Decree Law. –
– Telework is mandatory whenever the nature of
– the work allows it. – EJN Civil contact points will go to
their workplace whenever it is
needed and in urgent cases.
– Urgent judicial processes shall run without suspension of –
deadlines or acts.
–
– Judges keep doing their normal work from home
– where they have access to the case management
system. They remain available to go to Court – Preference should be given to
communication by email to
– Limitation periods and prescription periods are suspended. whenever it is necessary.
[email protected] in cases
regarding judicial cooperation.
– –
– Eviction of tenants and enforcement of mortgages that fall on – Urgent acts and procedures in which
109
private housing are suspended. fundamental rights are at stake are carried –
out in person (urgent protection of children,
– procedural acts and trial of imprisoned
defendants).
– The deadlines set forth for debtors to file applications to open
insolvency proceedings are suspended. –
– – Trials and procedural acts that are not urgent
have been adjourned except when Judges
– Acts in enforcement procedures, including enforcement deem it necessary to hold hearings, namely to
measures, are suspended unless this causes irreparable damage avoid irreparable harm or in cases where all
or endangers the creditor´s livelihood. the parties agree on using tele/video
conference.
–
–
– Final remark:
– Judgements can be pronounced if all the
parties agree that further enquiries by the
– Although this information was carefully collected, it does not
Court are unnecessary.
exempt from consulting the applicable legal texts and their
further amendments. In light of Article 5(2)(c) of Decision
2001/470/EC, this information is not binding for the –
Portuguese High Judicial Council, for national Courts or for
the Contact Point. – Acts and procedures carried out in person
shall take place in adequate rooms that were
made available in each district Court, with
protection and disinfection material. The
number of attendants shall be adjusted by the
Judge to the limits recommended by the
health authorities.
–
– Going to Court is not advised unless for those
who are summoned to appear (presentation of a
medical certificate of quarantine = force
majeure).
– In case of Court closure, which has happened in
a few exceptional cases, periods and time limits
110
are suspended.
–
– The Portuguese High Judicial Council stresses
that Courts must remain the ultimate guarantor
of fundamental rights.
–
– Practical information on the functioning of
national courts during the emergency period is
available in the website of the High Judicial
Council
– https://www.csm.org.pt/
–
– ROMA – According to the State of Emergency Decree No. 195/2020 and – State of emergency declared on 16/03, with – Part of the personnel of the
NIA Decree for Prolongation of the State of Emergency No. specific measures regarding the organization of Ministry of Justice is entitled to
(RO) 250/2020, limitation and prescription time limits do not the justice system: work from home. Judicial
commence or they are suspended if they are running, – cooperation in civil matters will be
during the state of emergency. – Judicial activity in civil matters is suspended, affected for an unpredictable
except for urgent cases, which are determined by period of time. In order to
– Interruption of time limits for lodging appeals. decision No. 417/24.3.2020 of the Council of minimise the delays, electronic
Magistracy; communication of requests of
– – Decisions continue to be drafted, as well as the judicial cooperation to the Central
registrations of documents from the parties. Authority is strongly encouraged.
– Documents sent in hard copy will
–
– Use of videoconference is encouraged – be processed with significant
including through letter rogatory, as well as delays.
hearings closed to the public, where the situation –
permits. – The Ministry of Justice acts on the
– basis of Article 3 c) of the Service
– All the documents of the parties are sent to of Documents and Taking of
the courts by electronic means, exception Evidence Regulations as
being allowed where these persons have no such transmitting/receiving authority in
means. exceptional cases. All requests
(service of documents, taking of
111
– evidence, maintenance cases, child
abduction cases etc.) are currently
– Transfers of files from a court to another is made dealt by the Ministry of Justice as
by electronic means; also the notification of usually, with no prioritisation.
judicial documents to the parties. –
– The following e-mail addresses can
– be used:
[email protected],
[email protected].
– Where the panel of judges cannot be completed,
delegation of judges from another division of the
court is allowed.
–
–
– SLOV – Legal deadlines, enforcement proceedings, statutory interest rates: – Article 3 of the COVID Act limited the necessity – In the area of cross-border judicial
AKIA – On 27 March the Act No 62/2020 Coll. on certain extraordinary measures to conduct hearings in courts and the public cooperation in civil matters
(SK) in connection with COVID-19 outbreak and on measures in the justice participation if such hearings do take place COVID Act did not introduce any
area (hereinafter the “COVID Act”) (https://www.slov-lex.sk/pravne- during the emergency situation. In case the court specific restrictions, however
predpisy/SK/ZZ/2020/62/) entered into force which introduced restrictive hearing is conducted with the exclusion of general restrictions applies.
and other measures that required statutory legal basis. public, there is a legal obligation to make an –
audio recording of the hearing which should be – The central authorities are mostly
– made accessible as soon as possible after the working from home.
hearing. –
– § 1 of the COVID Act temporarily (until 30 April 2020) – At the end of April we encountered
suspended the running of the limitation and prescription – first problems with postal delivery
periods in private law or introduced a waiver of such deadlines - the court letters addressed even to
in specified cases – the law was complemented by guidelines for EU member states were returned
courts issued by the Ministry of Justice that undelivered.
– instructed the courts to :
– In the absence of a secure
- electronic delivery the use of e-
– Pursuant to §2 of the COVID Act the same applies to restrict the movement of the public within the court
- introduce compliance with hygienic preventive mails can is legally acceptable only
procedural deadlines on the part of the parties to the
in certain cases. Moreover, when
proceedings. If the extension of the deadline in not possible measures
using e-mails, there is a risk of
due to threat to life, health, security, freedom and possible - provide information via telephone/email
breach of security and a risk of a
significant damage, the court has a discretion not to apply this - limit participation of public in court hearings leak of sensitive personal data.
provision and continue within the set deadline. - limit the conduct of hearings only to :
o custodial matters, conditional release – There is also a problem with the
112
– o proceedings related to minors and proof of delivery / service of
o matters where failure to act would cause documents.
– No changes to statutory interest rates were introduced (yet). irreparable damage
– – Slovakia would welcome a
– – Courts reduced working time and allowed work from uniform EU approach that would
home meet the criteria required for cross-
– Restrictive provisions in the COVID Act are limited in time border judicial cooperation.
(30 April 2020). Possible extension will be subject to future –
consideration (consent of the Government and the Parliament –
will be required to amend the law). – General requests/ questions to
central authority may be sent via
– email:
- the central authority for the Regulation
(EC) No 1393/2007 and the Council
Regulation (EC) No 1206/2001
(Ministry of Justice):
[email protected]
–
- the central Authority for the Council
Regulation (EC) No 2201/2003 and
the Council Regulation (EC) No
4/2009 (The Centre for
International Legal
Protection of Children and
Youth):
[email protected]
–
– SLOV – The Decree of March 13 of the President of the Supreme Court – The 13 March Decree invoked special measures – The Central authority for
ENIA on the basis of a proposal by the Minister of Justice, stipulated in the Courts' Act that can be used in Regulation (EC) No 1393/2007
(SI) determined that except in the urgent matters, procedural cases of natural disasters and large epidemics. and the Council Regulation (EC)
deadlines are suspended. No 1206/2001 (Ministry of
– Main hearings will only be held and Justice) established a system of
– decisions will only be taken in urgent matters teleworking. Therefore,
(what is urgent matter is established in the communication should be
– A Law on temporary measures in judicial, administrative and Courts act. The law authorised the President of transmitted as much as possible via
other public matters in order to damage control of the the Supreme Court with the power to further e-mail instead of paper mail, to the
spreading of the SARS-CoV-2 (COVID-19) was adopted on 20 limit the list of urgent procedures. following e-mail address:
march 2020 and came into force on 29 March 2020. All the – Second Decree of the President of the mailto:
[email protected]. Due to
measures determined in this law and any other measures taken Supreme Court was issued on 31 March 2020 these special circumstances,
113
on the basis of this law are valid until it is established by the further limiting the list of urgent matters. transmitting of requests in paper
decision of the Government, that the reasons for these – Urgent civil matters are currently the mail to competent courts may be
measures have ceased, but at the longest until 1 July 2020. following: delayed.
–
– The Law introduced provisions for all time limits (material - security matters (i.e. securing evidence, –
and procedural). Time limits to bring up a claim in judicial withholding the payment, execution of forbidding of certain
proceedings), which are determined by law, are suspended as actions) except the actions where personal contact of the – The Ministry of Labour, Family,
from 29 March 2020. Deadlines in judicial proceedings enforcement officers, parties and other persons is needed Social Affairs and Equal
(procedural deadlines) are also suspended as from 29 March under the condition that these actions are not urgent in Opportunities, the Central
2020, except in judicial matters that are established as urgent. order to prevent danger for life and health of citizens or Authority under the Council
their property of higher value, Regulation (EC) No 2201/2003 has
– - civil enforcement regarding child custody and established a system of remote
alimony, working, reducing physical
– In addition, the deadline to lodge the constitutional complaint - non-contentious maters regarding detention in presence at workplaces to a
is suspended. psychiatric establishments, minimum. In view of the current
- Claims regarding publishing of correct situation, and as long as this
– information. situation persists, the Central
– All main hearings, sittings of the court and Authority cannot guarantee the
hearings of witnesses/parties in urgent matters normal processing of all incoming
– Time limits will continue to run after the measures determined
are to be held via videoconference, if the requests. Processing of incoming
by the Law will expire.
technical and spatial conditions are fulfilled. applications can only be
– All scheduled hearings in non-urgent matters are guaranteed when received by e-
– cancelled. mail to
[email protected]. They
– strongly encourage keeping all
– Communication with parties. Except in urgent communications by electronic
matters, during the time when special measures means. Outgoing requests will be
are in place, parties and their representatives and sent exclusively by electronic
other persons: means.
– 1. Are not allowed to enter court buildings,
– 2. All applications, in the proceedings where this –
is possible, are to be filed by a postal way or via
portal e-Justice,
– Public Scholarship,
– 3. For the communication with courts, published
Development, Disability
email addresses or phone numbers are to be used
and Maintenance Fund of
during official hours.
the Republic of
– During the time when special measures are in Slovenia, the Central
force, parties and their representatives and other Authority under the
persons who in urgent matters request
Council Regulation (EC) No
information regarding their proceedings, have to
4/2009 is currently
give notice using the published e-mail addresses
operating remotely from
and phone numbers during the official hours.
114
– In all cases, that are not included in the examples home. Therefore, the
from the first and the second paragraph of this Central Authority would
point, courts determine one access to the court appreciate if the
building, where all preventive measures against communications were
the COVID-19 infection are taken. sent via e-mail to the
– following e-mail
– Judicial documents are not served as from 16 address:
[email protected].
March 2020. The Central Authority
will also communicate
– and send requests via
– email.
– Enforcement of the decisions is suspended,
from the day of the entering into force of the –
COVID-19 law, except in cases of enforcement
of maintenance claims, and in cases for damages –
for lost maintenance because of the death of the
providing person. The suspension comes into
effect by operation of law, therefore courts and
tax authorities will not issue any decisions
during this time.
–
–
–
– SPAIN – All terms are suspended, and time limits provided for in – The work within judicial premises has been – Spanish central authority cannot
(ES) the procedural laws for all jurisdictional orders are significantly reduced. I.T. solutions and guarantee normal processing of
suspended and discontinued. The calculation of the time communication tools have been provided or incoming requests (especially
limits will be resumed at the moment that the extensions of reinforced, in order to facilitate teleworking of paper requests). Requests must be
Royal Decree 463/2020 become invalid. judges, prosecutors, and other legal actors. sent by electronic means.
– – –
– Suspension of procedural deadline don’t apply to a number of – Public Notaries and Public Registries are – - Taking of evidence (art 3 of
specific proceedings, including the protection of children. considered as an essential public service and Regulation 1206/2001 : Serious
they are guaranteed. and urgent requests will be
– processed, requests must be sent to
–
[email protected] . All
– The judge or court may agree to conduct any judicial the rest must follow the usual
115
proceedings that are necessary to avoid irreparable damage to procedure by sending them directly
the rights and legitimate interests of the parties to the to the competent Spanish Court in
proceedings. paper.
–
–
–
– - Child abduction and maintenance
recovery : Processing of requests
can only be guaranteed when
received by email. Enforcement
shall be subject to urgency, taking
into account the limitation of
movement imposed on
citizens. (sustraccionmenores@mj
usticia.es)
(
[email protected])
–
– SWED – No measures directed at legal proceedings have been – –
EN introduced so far.
(SE) – The Swedish courts, that are independent from
– the Government, have taken diverse measures to
face the current situation. In general, more
hearings than usual have been cancelled,
primarily due to illness of parties, lawyers and
witnesses. The courts have increased the use of
video- and telephone conference. The existing
rules are used to carry on business as safe and
effective as possible.
–
– – – –
116
117
0
5000
10000
15000
20000
25000
30000
35000
40000
45000
50000
0
20000
40000
60000
80000
100000
120000
140000
2019-01
2019-02
2019-02
2019-03
2019-03
2019-04
2019-04
2019-05
2019-05
2019-06 2019-06
2019-07 2019-07
2019-08 2019-08
2019-09 2019-09
2019-10 2019-10
2019-11 2019-11
2019-12 2019-12
2020-01 2020-01
2020-02 2020-02
2020-03 2020-03
2020-04 2020-04
2020-05 2020-05
118
2020-06 2020-06
2020-07 2020-07
2020-08 2020-08
2020-09 2020-09
2020-10 2020-10
2020-11 2020-11
2020-12 2020-12
2021-01 2021-01
2021-02 2021-02
2021-03
2021-03
2021-04
2021-04
2021-05
2021-05
2021-06
2021-06
2021-07
2021-07
Annex 6: Statistical data on the use of the e-Justice portal
Table 5 - Number of visitors of the e-Justice Portal’s pages related to criminal matters
Number of visitors of the e-Justice Portal’s pages related to civil and commercial matters
Sum of Visits
Sum of Visits
Sum of Unique visitors
Sum of Unique visitors
Annex 7: The standard cost model for estimating
administrative costs
Detailed description of the approach to the assessment of costs and benefits
This annex provides a description of the approach to assess the main benefits and costs to
competent authorities and EU citizens that can be attributed to the communication in
cross-border judicial cooperation under the baseline scenario and for the selected policy
measure. For the assessment of costs and benefits against baseline scenario, combination
of reported data and estimated data based on the reported one was used.
– For the purpose if this analyses we consider the term “transaction” which refer
to the instance where a package of documents is sent cross border with
acknowledgement of receipt from a citizen, legal practitioner or court in one MS
to a court in another MS.
The following data is used as input for the calculations:
The average cost of communication is EUR 10.55 per transaction88. The calculation is
based on an average of the costs of sending an international certified letter from Belgium,
Bulgaria, Finland, France, Italy and Estonia. When further information was available
online, it was factored in, including average cost of sending to different Member States
(the Member States used were the remaining 5 in the list), the weight of the letter (250
grams was used) and the possibility to have the letter picked up in the facilities of the
judicial authority.
The average time declared by operators (postal services, carriers etc.) for posting a
first-class letter in the EU-27 is 2 days (48 hours). This number has been taken as an
average for the time it takes to send a letter from Member State A to Member State B.
However, anecdotal50 evidence suggests the time is much longer – between 3 to 15 days
depending on the destination. Therefore, we have considered an average of 5 days per
transaction.
The processing of paper forms i.e. registration, archiving, making copies, scanning was
estimated at 1.5 hours per transaction (45 min for each instance, sending and
receiving).
The average number of paper pages per transaction (the average length of the
template forms associated to the considered cross-border instruments) is 19.65 at a cost
of EUR 0.24 per transaction.
88 Study by the contractor – Study on the digitalisation of cross-border judicial cooperation in the EU prepared by
Valdani Vicari & Associati (VVA)
119
For the administrative court processes, there are at least 3 copies of each document:
the one being send, the one being kept in the file, one that is circulated with the
enforcement authorities.
For each the resolution of each instrument we consider that a minimum of 3 transactions
take place: send a request, receive acknowledgement of receipt from the court, receive
result of the request.
Data reported by Member States and centralised in table 10 show quite a heterogeneous
availability of statistics and also ranging from 3 cases of request for the application of the
Council Regulation (EC) No 2201/200389 in CZ in 2020 to 1530 active cases, with 3060
messages needed every year for the application of Council Regulation (EC) No 4/2009 in
FR in 2020 and 20226 European Arrest Warrants issued in EU 27 in 2020. For the
purpose of this analysis we considered and average of 1000 transactions per
instrument per Member State.
Total yearly transactions EU27: 3,078,000 = 1000 (transactions/instrument) x 3
exchanges x 38 instruments x 27 MS
Option 0 - Baseline scenario
The baseline scenario considers the as is situation i.e. the use of the digital channel of
communication would remain voluntary for each Member State, and thus most of the
cross-border judicial communication will be done in the traditional way.
This will result in continuing to have the following yearly costs and delays attached to
cross-border cooperation at EU level:
EUR 32 472 900 for communication in physical format (out of which EUR
5,697,000 for the individuals, legal entities);
15 390 000 days for communication by post or equivalent services (out of which
2,700.000 days for the individuals and legal entities);
192 375 days in administrative overheads linked to paper processing which
translates to 874 person-years in processing effort in courts;
181 448 100 A4 standard 80g printing paper pages (out of which 31 833 000 for
the individuals and legal entities) with the overall average cost of EUR 2 216 160
(EUR 388 800).
Under this scenario, the digitalisation costs are not considered as their weight in
offsetting these costs can be calculated only when instruments are fully digitised.
Option 1
Transaction costs and times in cross-border judicial cooperation, as presented in the
baseline option, will start to decrease only when the first two Member States put in place
interoperable IT systems fully supporting communication or if all Member States are
fully digitising one procedure90. The voluntary initiatives of the past decade show a
89 Council Regulation (EC) No 2201/2003
90
Table 16 yearly benefits of the European Payment Procedure
120
coverage of at most 1% of total transactions being carried out by digital means91. This
has not been sufficient to produce any tangible cost savings, as most communication has
been by traditional means. For the purpose of this assessment we will be using the
calculation of the yearly benefits of digitising the European Payment Procedure as
presented in the Impact Assessment of e-Codex. This is consistent with the current level
of participation92 in the e-Codex pilots which shows a maximum number of 6 Member
States participating in a certain procedure. Therefore, it is safe to assume that any further
voluntary cooperation can at best be approximated in terms of benefits with one
procedure like the European payment order being fully digitised.
Based on tables 12 and 16 it will result that the costs for Member States will slightly
decrease to:
EUR 32 174 616 for communication using physical formats;
15 387 525 days for communication by post or equivalent services;
The e-Codex cost model do not offer us any indication of the savings in administrative
costs or in paper.
Option 2 - Preferred Option – Legislative option: mandatory establishment and use
of a digital channel for cross-border communication
This option is based on the assumption that the IT systems for the exchanges of the
European Investigation Orders and for Service of Documents/Taking of Evidence that are
developed by the European Commission will be extended to cover the cross-border
judicial communication (table 3). The total one-off cost for extending the eEDES and
Service of documents/Taking of evidence93 to the full scope of the legislative option
would be EUR 18 700 000 over 5 years. This will result in a yearly investment of EUR
3 740 000. This cost will be covered by the EU Budget thorough the Digital Europe
Program and the Justice Program. The yearly business as usual (maintenance and
support) costs that are associated with operating the IT system at EU27 level is estimated
at EUR 8 100 000 which corresponds to 3 person-years/Member State x EUR 100,000.
This is an average cost to be covered by each MS.
The cost per digital transaction is EUR 2.95. The average overall yearly saving at EU
level is EUR 23 372 900 in postage costs and EUR 2 216 160 in paper costs amounting
to a grand total of EUR 25 589 060. The individuals and legal entities will be saving
EUR 4 098 600 in postage costs and EUR 388 800 in paper costs.
91
Currently, only the e-CODEX pilot implementations are providing for cross-border digital exchanges.
This leads to the assumption that less than 1% of the total transactions in cross-border cases are
digital..see tables 12 and 16
92
Table 17 – Participation in e-Codex Pilots
93Table3 – investment and running costs for the e-Evidence Digital Exchange System and Service of
Documents/Taking of Evidence IT system(s)
121
The average posting time will be reduced to 0 resulting in an overall yearly reduction of
the duration of the procedures by 15 389 999 days. The the individuals and legal entities
will be gaining 2 700 000 days in average posting time.
874 person-years will be gained in processing effort at court/competent authority level.
181 448 100 A4 standard 80g printing paper pages will be saved out of which 31 833 000
by individuals and legal entities.
Sensitivity analysis – after 1 year of implementation at 1/5 of digital exchanges
Even in the year 1 of implementing on 1/5 of exchanges digital will have a net gain of
EUR 4 672 404 in postage costs to which it adds EUR 443 232 in paper. Further
deducting the yearly investment of EUR 3 740 000 in the IT system, the partial digital
exchange will generate a net benefit of EUR 1 375 636.
175 person-years will be gained in processing effort in courts.
36 289 620 A4 standard 80g printing paper pages will be saved.
This analysis demonstrated net benefits of implementing the digital channel even from
the first year of hybrid operation digital/traditional, where the investment costs are offset
by the gain in postal and paper costs.
– This analysis demonstrated net benefits of implementing the digital channel even
from the first year of hybrid operation digital/traditional, where the investment
costs are offset by the gain in postal and paper costs. The man/year effort saved
in courts is substantial.
Sources of data
Statistics of cross-border communication by purpose of request94
This subsection presents an overview of available relevant statistics of cross-border
communication inn judicial cooperation in EU Member States. Consultation of relevant
stakeholders suggests that little to no statistical records are currently collected at the
institutional and Member States level in what concerns the means of exchange of
information (paper-based vs. digital). Where information is available, it indicates that the
vast majority of cross-border exchanges are currently carried out in paper-based form.
According to a representative of the Slovenian Office of the State Prosecutor General,
their Office is the first judicial authority in Slovenia that will be using e-CODEX for the
purpose of exchanging requests in the frame of EIO and MLA (through the e-Evidence
portal). Currently, they do not have a lot of EIO and MLA cases. According to an
interviewed stakeholder, Slovenian Office of the State Prosecutor General joined EXEC
94 Study by the contractor – Study on the digitalisation of cross-border judicial cooperation in the EU prepared by
Valdani Vicari & Associati (VVA)
122
II95 because of the fast exchange of digital information through this tool, as well as of the
intention that other instruments will be included in the e-Evidence portal in the future.
The table below presents statistics for the exchange of data on received and issued
requests regarding the European Investigation Order and the Mutual Legal Assistance in
Slovenia in 2019:
Table 8 - Statistical data on received and issued requests regarding European
Investigation Order and Mutual Legal Assistance in Slovenia (2019)
– European Investigation Order – issued requests – 135
– EIO – issued – 89
– Receipt of data – 45
– Rejected EIO – 1
– European Investigation Order – received requests – 114
– EIO – received – 68
– Answers – sent evidence – 13
– Assignment to another authority – 32
– Rejection – 1
– Mutual Legal Assistance – issued requests – 221
– Issued requests – 154
– Closed cases - no answer – 2
– Received answer – 65
– Mutual Legal Assistance – received requests – 173
– Received requests – 105
– Closed cases - no answer – 4
– Answers sent – 64
– Events together 96 – 637
95 The EXEC II project (Electronic Xchange of e-Evidences) is the follow-up project of the previous EXEC and
EVIDENCE2-e-CODEX projects. It provides a package of activities for its project partners to set up, roll out, maintain
and integrate the eEDES (e-Evidence Digital Exchange System) of the European Commission.
96 Excluded closed cases with no answer
123
According to the Austrian Federal Computing Centre, Austria currently exchanges e-
CODEX messages predominantly with Germany – with other Member States there is no
significant communication. The exchanges through e-CODEX between the two countries
happen in relation to the European Payment Order and Small Claims, while iSupport is
currently in evaluation, and EIO is in the course of preparation.
The table below presents statistics for the exchange of e-CODEX messages between
Austria and Germany in the first quarter of 202197:
Table 9 - Exchange of e-CODEX messages between Austria and Germany in the first
quarter of 2021
Messages received by AT
Party Service from DE Messages sent by AT to DE
1/2021
DE EPO 133 194
Totals 133 194
2/2021
DE EPO 186 373
Totals 186 373
3/2021
DE EPO 255 296
Totals 255 296
Overall Totals 574 863
In turn, the consulted Swedish national authority, deals with the following number of
cases (both received and issued requests) on a yearly basis:
European Payment Order: 200-300;
Small Claims: 30;
Financial Penalties: 200-300;
EIO and MLA: 1 300 from the Prosecution Authority of which the EIOs are about
90%;
MLA: 500 from The County Administrative Board;
iSupport: 2 000;
European Arrest Warrants: 200.
No information is available on whether the above exchanges are implemented in paper-
based or digital form.
Moreover, according to a representative of the Directorate-General for the
Administration of Justice of the Portuguese Central Authority, for Council
Regulation (EC) No 1206/2001 on cooperation between the courts of the Member States
in the taking of evidence in civil or commercial matters, there is an average of 40 new
cases per month where Portugal is the requesting State. If the case is to be sent to another
Member State, the initial request is always handled by post. Any further communication
within Central Authorities of receiving Member States is carried out by e-mail.
97 Statistics provided by the Austrian Federal Computing Centre
124
Each letter sent by post by the Portuguese Central Authority to another Member State has
a cost between EUR 5.25 and EUR 8.80, depending on the letter weight and the distance
to the recipient Member State. On average, each letter takes 10 minutes to be processed,
which implies at least 6 hours per month dealing with letters that are sent by post.
Portuguese authorities estimate that with digitalisation, processing of each case would
take 5 to 10 minutes, depending on the volume of the case. The total monthly time
dedicated to processing of requests would then be reduced by half in case of
digitalisation of the process.
According to the information in the annual report of the Sofia City Court in Bulgaria,
the following number of requests were received by the Court in 2019-2020:
Table 10: Requests for judicial cooperation procedures received by the Sofia City Court
in 2019-2020
Judicial cooperation procedures 2019 2020
EPO applications 60 38
Enforcement of foreign judgments 2 8
on maintenance
Requests for ToE - 1
Requests for enforcement of 1 6
judgments on uncontested claims
Requests for recognition of foreign 6 6
judgments based on Brussels I and
Brussels Ia
EIO 13 14
Requests for SoD 2 -
As an anecdotal example in the same court there was a civil case where the claim and the
written evidence comprised twelve cartoon boxes full of paper and those had to be
multiplied by the number of defendants (27) and sent to each one of them. Some of the
defendants resided other EU countries and the expenses for sending the documents were
especially high.
Although the figures above concern only certain Member States and apply only with
regard to exchanges on specific EU instruments, it is clear that the paper exchanges are
still prevalent in most EU Member States. Digitalisation of cross-border cooperation
would speed up the exchange of information between competent authorities and would
reduce costs and workload associated with this exchange.
Cross-border communication process, costs and benefits
The section below outlines some examples of cross-border processes provided by the
consulted stakeholders that illustrate the time and activities involved in cross-border
exchanges. The analysis of information collected through follow-up interviews and e-
mail exchanges with relevant stakeholders (first consulted through the online survey),
125
suggests that the process of cross-border communication follows a similar logic in most
Member States.
A prosecutor from the Prosecution office in Italy, which is the only Italian competent
authority to deal with the European Investigation Orders (EIO), explained that she
receives an average of one EIO per working day, all of which arrive in paper format98.
According to the interviewee, handling the EIO is a very time- and effort-consuming
process. Processing of the EIO typically follows the steps below:
Scanning the received paper dossier for the prosecutor’s own files (up to 15
minutes per case);
Receiving the signature of the deputy prosecutor, in case their signature is
required (up to one additional day);
Making a physical copy of the received dossier for the judicial police, and
sending the copy to the police (up to 15 minutes per case); the exact time of
processing of the dossier by the judicial police is unknown.
Once the documents are received back from the judicial police, the received files
are scanned and added to the digitalised dossier (up to 40 minutes per case);
Finalised paper documents are sent to the receiving Member State by post. The
postal delivery takes between three and 15 days, depending on the destination.
Based on this information, the postal delivery of the documents between the Prosecution
office and the sending/receiving Member State currently takes six to 30 days. The
processing time could be reduced by this time (for postal delivery), if the document
exchange was carried out through digital means. The prosecutor themselves would save
approximately one hour per EIO case (so 22-23 hours per month). As regards costs,
digitalisation would save 4-5 euros per postal package. The exchange of documents
through digital means would also be more secure than by regular post, according to the
consulted stakeholders.
According to data collected by the Commission through their September 2020
questionnaires to competent authorities and lawyers in Member States, Eurojust and EJN,
most Member States execute an EIO and transfer the evidence to the issuing Member
State within 31 to 60 days. Some Member States, however, stated to receive evidence
from the executing State only within 91 to 120 days.
An interviewed representative of the Portuguese EJN Civil Contact Point stated that
100 % of their incoming and outgoing cross-border communication exchanges are
carried out through digital means (by e-mail). The majority of the communication
exchanges constitute requests for information, and approximately one third of cross-
border communication are requests for cooperation. Cross-border communication
requests in the EJN Civil Contact Point in Portugal are dealt within the same time frame
as national procedures. If the receiving Member State requests so, cross-border
communication with them may be carried out in paper-based form (per registered mail)
as an exception. The interviewed representative of the EJN Civil Contact Point did not
have statistics about the differences in cost between communication sent and/or received
digitally and that sent and/or received by postal mail.
A representative of a bailiff office in Luxembourg explained that by current
Luxembourg legislation, all internal and cross-border communication on judicial matters
98 Interview with the Prosecution office in Italy, carried out by DG JUST of the European Commission.
126
is carried out exclusively on paper-based form, with some exceptions. The interviewee
shared that they carry out two major types of work that may require cross-border
communication: (1) service of documents and (2) enforcement of judgements.
Communication related to the service of documents is typically a one-time operation,
while the enforcement of judgements may require several communication exchanges.
Processing the incoming cross-border service of documents requests usually follows the
steps below:
Receipt of a letter with documents to be served, accompanied by request details. On
rare occasions, requests may come in digitally (for example, requests from Germany).
Opening a case and assigning a case number.
Sending an acknowledgement of receipt to the transmitting agency in the sending
Member State (always in a digital form, per e-mail).
Analysing the received documents (checking whether the assigned bailiff is
competent to serve the addressee; checking, whether the addressee’s address is
correct). The analysis of the documents typically takes one to two days.
Delivering the documents to the addressee (by national law, the documents must be
served to the addressee on paper). The addressee typically receives the documents
three working days after they arrive to the bailiff’s office.
Issuing a certificate of proof of delivery and sending it to the transmitting agency
(always in a digital form, per e-mail).
Sending the documents back to the transmitting agency – five days after the
documents first arrived to the bailiff’s office.
Closing the file.
Processing the outgoing cross-border service of documents requests usually follows the
steps below:
• Preparing the paper documents;
• Identifying the competent receiving agency in the receiving Member State;
• If necessary, preliminarily getting in touch with the receiving agency by phone or
per e-mail;
• Translating of documents in the language of the receiving Member State;
• Sending the documents to the receiving Member State (estimated receipt date:
five-six days after the case is originated by the bailiff’s office).
According to the interviewee, there are advantages and disadvantages of digitalisation of
cross-border communication in judicial matters. On the one hand, digitalisation will
speed up the delivery of the documents, and will thus reduce substantially the processing
time for each case. On the other hand, it is time-consuming for the bailiffs to scan multi-
page sets of paper documents to convert them to the digital form. Nonetheless, this time
for scanning documents would be avoided if both the sending and receiving Member
State were to exchange documents electronically.
In relation to the establishment and finalisation of the e-CODEX platform in the
European Union, the interviewee assessed the expected national-level investment to
equal 300 000 to 500 000 euros. He estimated the expected company-level investment to
127
equal 10 000 to 20 000 euros. The interviewee believes that the investment in the e-
CODEX platform would pay off in approximately 10 years.
An interviewee from the Network of Dutch Bailiffs said that in the Netherlands, as
well as in Luxembourg, all cross-border communication on judicial matters is carried out
in paper-based format. According to the interviewee, the requests for services from
abroad arrive to the Royal Chamber of Bailiffs of the Netherlands. The Royal Chamber
receives and processes approximately 40 requests for services per week; it then
distributes the requests among the bailiffs. All requests are processed within 1.5 days a
week by a dedicated administrator.
The consulted stakeholders also shared some general considerations with regard to
digitalisation of cross-border judicial cooperation:
Some Member States (e.g. Netherlands, Spain) have a national justice system
which is already digitalised and, thus, no major investments would be needed from
them to digitalise cross-border justice. The investments would mainly pertain to
the costs to make the national system ‘interoperable’.
All stakeholders agree that the process will be much faster if all Member States are
connected to the same digital system. Efforts required by Member States would be
paid off on the long term.
While less time/resources would be needed if the documents are exchanged
electronically, more work would fall on specific categories such as lawyers/judges,
thus, highly qualified staff (costly) compared to administrative staff currently
involved in handling paper exchanges;
Investment in training on ICT skills would be needed for all judicial/legal
categories should digitalisation be mandatory;
Translation costs should also be taken into account.
128
Table 11 – Quantitative data from the MS
– Instrument – Forms and – No of – Notes – No of – Time for – Costs – Other
pages per pages cases communic
form per ation
instrum
ent
– Civil law instruments
– 1.Council – Annex 5 – 2 – No longer – – – – SK – no
Regulation (1), Annex in force, electronic
(EC) No 6 (1) Date of communic
44/2001 end of ation;
validity:
09/01/201
5;
Repealed
by
32012R12
15 which
has
Annex 1
(4),
Annex
2(3), for a
total of 7
pages for
the
instrumen
t.
– 2.Council – N/A – – – – – – SK – no
Directive electronic
2003/8/EC communic
1.
ation;
– 3. Council – Annex 1 – 8 – In force: – DE – – DE - – – BE – all
Regulation (2), Annex This act between Length of requests
(EC) No 2 has been 2017-2020 incoming received
2201/2003 (2),Annex changed. – 2135 Hague via post;
3 Current various court
(2),Annex consolidat cases; return – SK – no
4 (2) ed proceedin electronic
version: – CZ – for gs communic
01/03/200 2019 and involving ation;
5 Total 2020 – 3 another
pages for cases; EU MS – – BG –
the from the Central
consolidat – BG – 95 applicatio authority
ed version exchanges n made to communic
does NOT by the court until ates
change. Central a decision mostly on
authority; is issued paper;
at first rarely – by
– HR – instance: e-mail
doesn’t 2016 – 60
have a days,
separate 2017 – 55
index for days,
some of 2018 – 59
the civil days, until
law cases – a final
for 2018- decision is
2021 – 67 issued:
cross- 2016 – 93
border days,
civil law 2017 – 82
cases days,
2018 – 93
days.
130
– 4. Regulation – Annex 1 – 15 – In force: – LT – – – – BE – files
(EC) No (3),Annex This act between are sent to
805/2004 2 has been 2016 and other MS
(2),Annex changed. 2020 – 498 by e-mail,
3 Current cases followed
(2),Annex consolidat (increasing by a phone
4,(2)Anne ed each year); call to
x version: till July confirm
5(4),Anne 04/12/200 2021 – 133 the receipt;
x 6(2) 8 Total cases; Files
pages for received
the – DE – from other
consolidat between MS – on
ed version 2017 and paper.
CHANGE 2019 –
S and are 1794 cases – SK – no
as electronic
follows: – CZ – for communic
Annex 1 2018-2020 ation;
(2), – 576
Annex 2 certificates
(2), requested
Annex 3
(2),
Annex 4
(1),
Annex 5
(3),
Annex 6
(1).
– 5. Regulation – Annex 1 – 20 – In force: – SE – 200- – – – BE – all
(EC) (7),Annex This act 300 cases communic
1896/2006 2 has been per year; ation is
(EPO) (2),Annex changed. mainly via
3(2),Anne Current – LT – post;
x consolidat between rarely –an
131
4(2),Anne ed 2016 and agreement
x version: 2020 – 112 for e-mail
5(3)Annex 14/07/201 cases; till exchange.
6(2),Anne 7 Total July 2021
x 7(2) pages for – 51 – SK – no
the electronic
consolidat – DE – for communic
ed version 2018-3.706 ation;
does NOT cases; for
change. – DE - As
– 2019- 3577 soon as an
cases; for application
2020-cases is
3697; submitted
electronica
– CZ – for lly not
2018-2020 only as a
– 443 pdf but in
requests; a
structured
– FR – for data
2016-202 – format,
2611 cases. this could
result in a
– AT – for considerab
2015 - le
2241 cases reduction
of which in
309 workload:
objections the data
(14 %); for entry work
2016 - would be
3328 cases completely
of which eliminated
444 because
objections the
(13 %); for application
132
2017 - data is
2420 cases read
of which directly
289 into the IT
objections application
(12 %); for for the
2018 - European
3807 cases order for
of which payment
413 procedure.
objections In this
(11 %); for case,
2019 - further
5251 cases communic
of which ation
899 would take
objections place
(17 %); for electronica
2020 - lly (as far
5167 cases as legally
of which permissibl
871 e), so that
objections no postal
(17 %). charges
would
– incur. Up
to now,
this form
of
application
has only
been
submitted
via e-
Codex by
Austrian
133
lawyers.
– 6. Regulation – Annex 1 – 13 – In force: – SE – 30 – – – BE – all
(EC) No (7),Annex This act cases per communic
861/2007 2 has been year; ation is
(small claims) (2),Annex changed. mainly via
3(2),Anne Current – LT – post;
x 4(2) consolidat between rarely –an
ed 2018-2020 agreement
version: – 7 cases; for e-mail
14/07/201 till July exchange.
7 Total 2021 – 2
pages for cases; – SK – no
the electronic
consolidat – DE – for communic
ed version 2017-2019 ation;
CHANGE – 2200
S and is initiated
as cases
follows: (increasing
Annex 1 each year);
(10),
Annex 2 – CZ – for
(2), 2018-2020
Annex 3 – 485
(3), cases;
Annex 4
(2), for a – FR – for
total of 17 2016-2020
pages for – 1280
the cases
instrumen
t. – HR – for
2018-2021
– 559 new
cases.
134
– AT – for
2009- 183
cases; for
2010 – 177
cases; for
2011 – 218
cases; for
2012 – 222
cases; for
2013 – 258
cases; for
2014 – 270
cases; for
2015 – 233
cases; for
2016 – 215
cases; for
2017 – 255
cases; for
2018 – 287
cases; for
2019 – 306
cases; for
2020 – 402
cases.
–
– 7. Directive – N/A – – – – – – SK – no
2008/52/EC electronic
communic
ation;
– 8. Council – Annex 1 – 56 – In force: – SE - – PT - On – PT - • – BE – all
Regulation (9), 2 (9), This act iSupport, 2 average- E requests
(EC) No 3 (7), 4 has been 000 per each letter ach letter received
(7), 5 (5), changed. takes 10 sent by
135
4/2009 6 (7), 7 Current year; minutes to post has a via post;
(10), 8 (1), consolidat be cost
9(1) ed – PT – 40 processed, between € – SK – no
version: cases per which 5,25 and electronic
31/12/201 month; implies, at € 8,80, communic
8 Total least, 6 dependin ation;
number of – DE – hours per g on the
pages in requests month volume – BG –
the under dealing communic
consolidat art.56 for with ation
ed version 2018 – letters that mostly on
CHANGE 8805; for are sent paper;
S and it 2019 – by post. rarely via
has 9302; for To this- to e-mail
Annex 1 2020 – add the
(8), 9284 (see time for
Annex 2 statistics processing
(8), sent by DE received
Annex 3 – correspon
(7), elaborated dence by
Annex 4 under each post from
(7), Art.)* the initial
Annex 5 requests
(5), – CZ – for that are
Annex 6 2020 – 6 sent to PT.
(7), cases; With the
Annex 7 digitalizati
(11), – FR - 1530 on process
Annex 8 active we can
(1), cases, with estimate 5
Annex two to 10
9(1) , for messages a minutes,
a total of year on depending
55. average on the
(=3060 volume of
messages the case.
needed
136
every
year);
– BG – for
2020 and
2021 – 297
communic
ations by
the CA
–
– 9. Regulation – N/A – – – CZ – for – – –
(EU) No 2019 and
650/2012 2020 – 8
Succession) cases
– 10. Regulation – Annex – 7 – In force: – CZ – for – – – BE – all
(EU) No 1(4),Anne This act 2019 and communic
1215/2012 x 2 (3) has been 2020 – 98 ation is
changed. certificates mainly via
Current post;
consolidat rarely –an
ed agreement
version: for e-mail
26/02/201 exchange.
5 Total
number of – SK – no
pages electronic
does NOT communic
change. ation;
– 11. Regulation – N/A – – – – – – SK – no
(EU) No electronic
606/2013 communic
137
ation;
– 12. Regulation – N/A – – – BE – 3 – DE – time – NL - € – BE-All
(EU) No cases since for the 84.64 ex cases
655/2014 entry into various VAT (for received
(EAPO) force requests – execution via post;
between )
– DE – for 52 and – SK – no
2018 and 119 days electronic
2019 – 758 communic
cases; ation;
– BG – for
2020 – 4
requests to
CA
– 13. Regulation – N/A – – – – – –
(EU) 2015/848
– 14. Council – N/A – – – – – –
Regulation
(EC) No
2016/1103
– 15. Council – N/A – – – – – –
Regulation
(EU)
2016/1104
– 16. Regulation – Annex – 117 – – – – – SK – no
(EU) 1(8), 2 electronic
2016/1191 (9),3 (9),4 communic
(10), 5 ation;
(14), 6
(12), 7
138
(10), 8
(13),9
(11),10
(10),11
(11)
– 17. Directive – N/A – – – – – –
(EU)
2019/1023
– 18. Council – Annex – 58 – – – – –
Regulation 1(6), 2 (4),
(EU) 3 (11), 4
2019/1111 (7), 5 (8),
6 (7), 7
(2), 8 (3),
9 (10)
– Criminal law instruments
– 1. Regulation – Annex 1 – 14 – – – – –
(EU) (7), Annex
2018/1805 on 2 (7).
the mutual
recognition of
freezing orders
and
confiscation
orders
– 2. Directive – Annex 1 – 6 – – – – –
2011/99/EU (4), Annex
on the 2 (2)
European
protection
139
order
– 3. Council – N/A – – – – – –
Framework
Decision
2009/948/JHA
on prevention
and settlement
of conflicts of
exercise of
jurisdiction in
criminal
proceedings
– 4. Council – Annex 1 – 9 – – – – –
Framework (6), Annex
Decision 2 (3)
2009/829/JHA
on the
application of
the principle
of mutual
recognition to
decisions on
supervision
measures as an
alternative to
provisional
detention
– 5. Council – Annex 1 – 8 – – – – –
Framework (6), Annex
Decision 2 (2)
2008/947/JHA
on the
application of
the principle
140
of mutual
recognition to
judgments and
probation
decisions
– 6. Council – Annex 1 – 7 – In force: – – – –
Framework (6), Annex This act
Decision 2 (1) has been
2008/909/JHA changed.
on the Current
application of consolidat
the principle ed
of mutual version:
recognition to 28/03/200
judgments in 9 Total
criminal pages for
matters the
imposing consolidat
custodial ed version
sentences or does NOT
measures change.
involving (also see
deprivation of notes for
liberty instrumen
t n.19 of
this list)
– 7. Council – Annex – 11 – No longer – – – –
Framework (11) in force,
Decision Date of
2006/783/JHA end of
on the validity:
application of 18/12/202
the principle 0;
of mutual Replaced
recognition to by
141
confiscation 32018R18
orders 05, which
has
Annex 1
(7),
Annex 2
(7). Total
pages for
the new
instrumen
t is 14.
(also see
notes for
instrumen
t n.19 of
this list)
– 8. Council – Annex (5) – 5 – No longer – – – –
Framework in force,
Decision Date of
2003/577/JHA end of
on the validity:
execution of 18/12/202
orders freezing 0;
property or Replaced
evidence by
32018R18
05, which
has
Annex 1
(7),
Annex 2
(7). Total
pages for
the new
instrumen
142
t is 14.
– 9. Council – N/A – – – – – –
Directive
2004/80/EC on
compensation
to crime
victims
– 10. Directive – N/A – – – – – –
2012/29/EU
on victim’s
rights
– 11. Council – Annex (5- – 5 or 6 – In force: – SE – 200 – – –
Framework 6) (depend This act per year;
Decision ing if has been
2002/584/JHA we changed. – FR – for
of 13 June count Current 2017-2020
2002 on the the consolidat 6348 EAW
European initial ed through
arrest warrant page version: police
with the 28/03/200 cooperatio
title of 9. Total n; 6641
the form number of EAW
only) pages for received
the new and
version
does NOT – HR – for
change. 2018-2021
(also see – 314
instrumen EAW.
t n.19 of
this list) –
– – In 2018,
143
the 27
Member
States
issued
17471
EAWs. In
2019 the
MS issued
20226
EAWs.
–
– 12. Directive – Annex A – 12 – In force: – SE – EIO – – –
2014/41/EU of (8), Annex This act and MLA
the European B (2), has been 1 300 per
Parliament and Annex C changed. year from
of the Council (2) Current the
of 3 April consolidat Prosecutio
2014 regarding ed n
the European version: Authority
Investigation 01/05/201 of which
Order 4 Total the EIOs
pages for are about
the 90%.
consolidat
ed version – SI – in
does NOT 2019 - 135
change. EIO were
issued and
114 EIO
were
received.
– 13 Convention – N/A – – – SE - 500 – – –
established by from The
the Council in County
144
accordance Administra
with Article 34 tive Board;
of the Treaty
on European – FR – for
Union, on 2017-2020
Mutual – 6817
Assistance in MLA
Criminal received;
Matters 3111 sent;
between the
Member States – HR – for
of the 2018-2021
European – 379
Union MLA.
– – SI – in
2019 – 221
MLA were
issued and
173 MLA
were
received.
– 14. Protocol – N/A – – – – – –
established by
the Council in
accordance
with Article 34
of the Treaty
on European
Union to the
Convention on
Mutual
Assistance in
Criminal
Matters
between the
145
Member States
of the
European
Union
–
– 15. – N/A – – – – – –
Convention
drawn up on
the basis of
Article K.3 of
the Treaty on
European
Union, relating
to extradition
between the
Member States
of the
European
Union
–
– 16. – N/A – – – – – –
Convention
drawn up on
the basis of
Article K.3 of
the Treaty on
European
Union, on
simplified
extradition
procedure
between the
Member States
146
of the
European
Union
–
– 17. Council – N/A – – – – – –
Framework
Decision
2002/465/JHA
of 13 June
2002 on joint
investigation
teams
–
– 18. Council – Annex (8) – 8 – In force: – SE – 200- – – –
Framework This act 300 per
Decision has been year;
2005/214/JHA changed.
of 24 February Current –
2005 on the consolidat
application of ed
the principle version:
of mutual 28/03/200
recognition to 9
financial Total
penalties pages for
the
– consolida
ted
version
does
NOT
change.
(also see
147
notes for
instrumen
t n.19 of
this list)
–
– 19. Council – N/A – – The forms – – – –
Framework are not
Decision given in
2009/299/JHA full in the
of 26 February amendme
2009 nt. Any
amending reference
Framework to forms
Decisions here
2002/584/JHA refers to
, other
2005/214/JHA insturmen
, ts (n.
2006/783/JHA 5,6,7,11,1
, 8 of this
2008/909/JHA list)
and
2008/947/JHA
, thereby
enhancing the
procedural
rights of
persons and
fostering the
application of
the principle
of mutual
recognition to
decisions
rendered in the
148
absence of the
person
concerned at
the trial
– 20. Proposal – Annex 1 – 12 – – – – –
for a (5), Annex
Regulation 2 (4),
(EU) on Annex 3
European (3)
Production and
Preservation –
Orders for
electronic
evidence in
criminal
matters
–
149
Table 12 – Cost/benefit analysis paper vs digital
Cost of Total cost of Avg paper
No of No of Avg Posting Avg paper
transaction transaction processing Avg page #
Instruments transactions Time (days) cost #
(EUR) (EUR) time (days)
per transaction 38.00 1 5.00 0.06 19 65 0.24
baseline 3 078 000 10 55 32 472 900 15,390,000 192 375 181 448 100 2 216 160
fully digital 3 078 000 2 96 9 100 000 0 0 0 0
Savings (Baseline-Fully Digital) 23 372 900 15 389 999 192 375 181 448 100 2 216 160
baseline 3 078 000 10 5 32 472 900 15 390 000 192 375 181 448 100 2 216 160
baseline at 4/5 2 462 400 10 55 25 978 320 12 312 000 153 900 145 158 480 1 772 928
baseline difference 6 494 580 3 078 000 38 475 36 289 620 443 232
implementation Year 1 digital at 1/5 615 600 2.96 1 822 176 0 0 0 0
Savings (4/5 paper, 1/5 Digital 4 672 404 3 078 000 38 475 36 289 620 443 232
civil and commercial justice - Individuals
and legal entities 20.00 1 5.00 n/a 19.65 0.24
baseline - Individuals and legal entities 540,000 10,5 5,697,000 2,700,000 n/a 31 833 000 388 800
fully digital - Individuals and legal entities 540,000 2,96 1,598,400 1 n/a 0 0
Savings (Baseline-Fully Digital) 4,098,600 2,699,999 n/a 31 833 000 388 800
2.
Table 13 –Investment and running costs for the e-Evidence Digital Exchange System and Service of Documents/Taking of Evidence
IT system(s)
Installation
20 Technical
20 instruments costs,
eEDES99 SoD/ToE100 instruments support in
with forms including
with free field the MS
hardware
Year 1 1 000 000 1 000 000 2 000 000 100 000 5 400 000 2 700 000
Year 2 1 000 000 1 000 000 2 000 000 100 000 5 400 000 2 700 000
Year 3 1 000 000 1 000 000 2 000 000 100 000 8 100 000 0
Year 4 1 000 000 100 000 2 000 000 100 000 8 100 000 0
Year 5 1 000 000 100 000 2 000 000 100 000 8 100 000 0
Year 6 1 000 000 100 000 1 000 000 50 000 8 100 000 0
*this amount includes the modification to the e-Justice portal to support direct applications from citizens and businesses to judicial authorities in cross-
border proceedings.
Table 14 - Average time for processing a cross-border request (EIO, EPO etc) from Member State A to Member State B including
time for posting the documentation101
– Average time for processing a cross-border request (EIO, EPO etc.) from Member State A to Member State B
99 DG Just IT Portfolio report Ares(2021)2343643
100 The legislative financial statement for the Service of Documents/Taking of Evidence Regulations
101 The study from the contractor
151
including time for posting the documentation
– Communications – MS A – Average time – MS B – TOTAL
channel processin required for processin
g time sending the g time
documentatio
n*
– Paper-based – 0.75 hrs – 48 hrs102 – 0.75 hrs – 49.5 hrs
Table 15 – Average costs for posting a first-class letter in the EU-27
Cost international letter in EUR
Belgium 8.87
Bulgaria 5.62
Finland 22.35
France 7.5
Italy 8.5
Estonia 10.5
Average Cost 10.55
Table 16 - Yearly benefits of digitalisation of the European Payment Order procedure103
102 Average time for EU-27 first class letter https://postandparcel.info/103425/news/post/50-first-class-letter-mail-within-europe-was-delivered-within-two-days-of-posting-in-2018/
103
The e-Codex Impact Assessment
152
153
Table 17 – participation in e-Codex Pilots by end of 2020
Legislative instruments Member States4
European Order for Payment (EPO) Active: AT, DE, EL, IT, MT, PL
European Small Claims (ESC) Active: AT, CZ, DE, MT, PL (work finished),
Transmission of Mutual Legal Assistance in Active DE, NL, AT
Criminal Matter (MLA) and/or European
Investigation Order (EIO)
Mutual Recognition of Financial Penalties (FP) Active: FR, NL (pilot)
Service of documents via EJS/EUBF platform Active: FR, BE, LU
1393 regulation
154
Annex 8: What are the problems and their causes?
Lack of digital tools fully supporting cross-border judicial cooperation
According to the findings of the legal mapping conducted as part of the Study on the
Digitalisation of cross-border judicial cooperation, in most Member States (e.g. Belgium,
Germany, Czechia, Spain, Malta, Lithuania, Slovakia), paper-based communications
constitute the majority of cross-border communications. Besides, in some Member States
(e.g. Czechia) it is common practice that paper documents are sent first, whereas the
subsequent communication takes place for example by email. Digital means are, thus,
used as a second option giving priority to the transmission via paper documents. For
example, for Czechia the estimate is 90% paper-based versus 10% of digital
communication.
A pilot project between Austria and Germany aimed at introducing an electronic
communication channel based on e-CODEX between the respective national courts for
the purposes of the European Payment Order procedure, has illustrated in a clear manner
the disadvantages of paper-based communication. The conclusions of the concerned
project were as follows:
• proceedings were made faster and safer, with messages being sent by e-mail in a
secure and reliable manner;
• the transmission process was retraced, which made it easier to resolve technical
failures to deliver a message;
• the use of timestamps allowed the determination of the exact time a recipient has
received a message;
• the data transmitted was only structured data which allowed for its automatic
processing in the receiving system instead of re-entering it manually. This shortened the
time of the proceedings and was less error-prone as there was no manual intermediary
step;
• some costs savings were realised in terms of postal fees (an electronic message
costs EUR 0.07 to send, while postal fees amount to EUR 3-5 for a piece of
recommended registered letter).
• the permanent availability of the electronic channel enhanced the work of judicial
employees on night shifts or on weekend duties.
• the alignment and the optimisation of the internal workflows to a digital-first
approach relieved the administrative burden since there was much less need to
expensively digitalise paper messages afterwards.
Lack of digital tools facilitating access to justice
As per Eurostat data for 2019, 3,3% of EU citizens live in a Member State other than
their Member State of origin. For these individuals and legal entities, the safeguarding of
basic rights is very often additionally burdened with language differences, unfamiliarity
with foreign legal systems, and geographical distance. Businesses may encounter these
156
difficulties in to the context of cross-border cases, such as in the scope of the European
Payment Order procedure and, for individuals such difficulties also occur in family law
cases, succession procedures, legal aid and others.
As illustrated by the study supporting this impact assessment, the availability of
electronic means for submitting and following a claim online, varies significantly across
Member States. The ability to use electronic means, e.g. for submitting claims,
monitoring and advancing a judicial proceeding online, is a key element of the quality of
justice systems, as it allows access to justice and reduces delays and costs. This may
particularly affect those vulnerable categories of individuals, which for various reasons
such as disabilities or residing in remote areas or others may not have easy access to
judicial authorities.
Different level of digitalisation and the voluntary use of the existing digital channels:
• eight Member States participate in the European Order for Payment pilot;
• eight Member States take part in the Small Claims pilot;
• three Member States and the European Chamber of Judicial Officers/ Bailiffs
(CEHJ) are interconnected under the European Account Preservation Order pilot;
• the procedure for Mutual Legal Assistance under the Convention on Mutual
Assistance in Criminal Matters between the Member States of the European Union has
been piloted by seven Member States;
• the Mutual Recognition of Financial Penalties pilot connects two Member States;
• the e-Evidence Digital Exchange System (eEDES), developed by the European
Commission enables the digital exchange of European Investigation Orders between the
national competent authorities based on e-CODEX. Five Member States were connected
by 2020 and 11 Member States are planning to complete their connection in 2021.
The fragmented approach to developing IT solutions and lack of interoperability between
existing national systems can have negative consequences such as:
• low or no trust in terms of authentication and signature;
• lack of semantic interoperability between forms and data elaborated in one
system by another system;
• no guarantee for the authenticity and integrity of the documents and the reliability
of the communication;
• mutual misunderstanding regarding the execution of procedures because of
diverging rules and traditions between the countries;
• incoming requests need to be manually entered into the national case
management system. This process not only takes time, but also involves a high risk of
human error, which could have serious consequences for the treatment of the request.
156
In addition to the absence of interoperability at EU level, there is a lack of
interoperability between the judicial authorities within an individual country according to
the consulted stakeholders.
The need for more interoperability was also emphasised by the stakeholders who
attended the EU level focus group. They considered interoperability a key factor allowing
respect for the legal differences between national systems. The interoperability, safety
and security of digital communication channels is also a priority for many national
stakeholders, consulted during the legal mapping conducted for this study. Many think
that it is necessary to harmonise the certificates of secure devices, to ensure their
performance, traceability, security level, etc.
Recognition of electronic signatures/seals and legal validity/acceptance of electronic
documents
In the absence of commonly agreed assurance levels of electronic signatures/seals, those
used by the issuing Member State may not be recognised by the receiving Member State
in judicial proceedings. Although electronic identification frameworks are currently in
place, few Member States have the infrastructures or experience to facilitate qualified e-
signatures within the judiciary.
Data from 25 Member States in the context of the Public Documents Regulation show
that only 13 Member States have legal coverage to recognise and admit public
documents signed electronically and issued by another Member State. Out of 12
countries (one did not provide information), eight require the use of e-IDAS qualified
electronic signatures. In two Member States, both qualified and advanced electronic
signatures are legally admissible. One Member State requires the use of advanced
electronic signatures whereas another one recognises electronic signatures not regulated
by the e-IDAS Regulation.
In the case of cross-border transmissions using e-CODEX, the participating Member
States established a “Circle of Trust Agreement” to overcome this impediment and
ensure the validity and admissibility of documents and evidence transmitted
electronically. In order to join the Circle of Trust, a document sent by the joining system
must have the following characteristics: the document is uniquely linked to the user; the
system is capable of identifying the user; the document is created using means that the
user can maintain under their control and any subsequent change of the data is detectable.
Despite the existence of this agreement, the latter only concerns direct users of e-
CODEX and is not binding on them nor does it bind all participants in a judicial case.
Therefore, it provides insufficient guarantees in the context of EU-wide judicial
cooperation.
Non-resilience of judicial systems to force majeure circumstances
The main impacts on civil and criminal proceedings, due to national restricting pandemic
measures include:
• complete or partial suspension of the work of courts and other judicial authorities;
• delayed or suspended activities of the competent and central authorities leading to
practical issues, for instance delays in enforcing a decision in a cross-border context;
157
• temporary inability to obtain legal aid;
• difficulty to access information normally provided by the competent authorities;
• temporary adjustments in terms of communication with the public (by email, by
phone or by postal mail);
In addition, the expiry of deadlines, due mainly to the restrictions on societal life and
movement, have deprived individuals/legal entities or courts from the possibility to take
procedural steps, such as appealing against a decision, the possibility to consult a lawyer,
delays in the submission of legal documents to the courts due to delays in the postal
services, etc. This already brought insecurity as to the application of judicial cooperation
instruments and the Court of Justice of the European Union has already been seized with
a preliminary referral regarding the interpretation of the rules applicable in the European
order for payment procedure and the case is pending with the Court. Similar
consequences would arise in case of other force majeure events, such as terrorist attacks
and natural disasters which have serious negative impact on the everyday life of citizens
and the functioning of the state institutions.
158
EUROPEAN
COMMISSION
Brussels, 1.12.2021
COM(2021) 760 final
2021/0395 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
amending Council Directive 2003/8/EC, Council Framework Decisions 2002/465/JHA,
2002/584/JHA, 2003/577/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA,
2008/947/JHA, 2009/829/JHA and 2009/948/JHA, and Directive 2014/41/EU of the
European Parliament and of the Council, as regards digitalisation of judicial
cooperation
{SWD(2021) 392} - {SWD(2021) 393} - {SEC(2021) 580}
EN EN
EXPLANATORY MEMORANDUM
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Efficient cross-border judicial cooperation requires secure, reliable and time-efficient
communication between courts and competent authorities. Moreover, this cooperation should
be carried out in a way that does not create a disproportionate administrative burden and is
resilient to force majeure circumstances.
At Union level, there exists a comprehensive set of instruments designed to enhance judicial
cooperation in cross-border civil, commercial and criminal cases. Many of these govern the
communication between authorities, including in certain cases with the EU Justice and Home
Affairs (JHA) agencies and bodies. However, most instruments do not provide for engaging in
such communication through digital means. Even where they do, other gaps still exist, such as
a lack of secure and reliable digital communication channels or non-recognition of electronic
documents, signatures and seals. This deprives judicial cooperation of using the most
efficient, secure and reliable channels of communication available.
In addition, the COVID-19 pandemic has shown that force majeure events may severely
affect the normal functioning of Member States’ justice systems. During the crisis, in many
cases national courts have been unable to maintain normal operations due to the spread of the
virus. Member States were forced to take a number of measures ranging from full lockdowns
to treating certain priority cases only. At the same time, those activities that could be
conducted digitally (e.g. by email, videoconference, etc.) were able to continue without
interruption. However, many of the technical solutions employed were developed in an ad hoc
manner, and did not necessarily satisfy security and fundamental rights standards to the full.
Judicial cooperation in EU cross-border cases has been similarly affected, and the COVID-19
pandemic has underlined the need to ensure the resilience of communication.
Against this background, the Commission proposed the adoption of a harmonised set of rules
on digitalisation, which aim at improving access to justice and the efficiency and resilience of
the communication flows inherent to the cooperation between judicial and other competent
authorities in EU cross-border cases [Reference to Digitalisation Regulation]. The proposed
Regulation provides that written communication between competent authorities taking part in
judicial cooperation in civil, commercial and criminal matters should be conducted through
digital communication channel, subject to justified exceptions. In order to ensure that
communication is conducted uniformly under the scope of all Union legal instruments in the
area of civil, commercial and criminal matters, certain provisions already governing
communication need to be aligned with the goal of ensuring “digital by default”1 information
exchanges. The purpose of the amendments is to ensure legal certainty in such situations
where existing provisions may govern communication differently than the proposed
Regulation. Considering that a certain number of the concerned legal acts are Framework
Decisions and Directives, it is appropriate to amend them by way of a Directive, which also
sets out transposition aspects.
1
In the context of this proposal for a Directive, the “digital by default” principle should be understood as
a way to improve the efficiency and resilience of communication, reduce costs and administrative
burden, by making the digital channel of communication the preferred one to be used.
EN 1 EN
As Framework Decision 2003/577/JHA2 and Framework Decision 2006/783/JHA3 continue to
apply not only between the Member States that are not bound by Regulation (EU) 2018/18054
but also between any Member State that is not bound by Regulation (EU) 2018/1805 (notably
Ireland) and any Member State that is bound by (EU) Regulation 2018/1805, amendments to
these Framework Decisions are also proposed by the current proposal, in case Ireland opts in
to the Digitalisation Regulation.
• Consistency with existing policy provisions in the policy area
The Commission’s proposal on the digitalisation of judicial cooperation and access to justice
in civil, commercial and criminal matters (hereinafter “the proposal for a regulation”) lays
down a comprehensive set of horizontal rules regarding the use of the digital communication
channel between judicial authorities, the possibility for natural and legal persons to
communicate with judicial authorities through electronic means and the use of
videoconferencing.
Considering that the purpose of this proposal is to ensure alignment of Framework Decisions
and Directives in the area of civil and criminal matters with the provisions of the proposal for
a regulation and to amend conflicting legal provisions, the proposed Directive makes
consistent references to the proposal for a regulation for all horizontal rules on
communication.
• Consistency with other Union policies
Similarly, the proposal for a regulation fully complies with the existing statutory provisions in
the area of trust services and data protection.
Given the highly sensitive nature of the information exchanged, it is essential that the
implementation of the toolbox approach on the digitalisation of justice, including through this
proposal, takes place in a way that guarantees strong cybersecurity standards. This is
consistent with the approach outlined in the EU's Cybersecurity Strategy5 and the
Commission’s proposal for a Directive on measures for a high common level of cybersecurity
across the Union (NIS2)6, aiming to improve further the cybersecurity capacities of public and
private entities, competent authorities and the Union as a whole in the field of cybersecurity
and critical infrastructure protection. While judiciary in Member States is not in the scope of
NIS2 proposal it is of essence that Member States will put in place national measures that
would ensure a comparable level of cybersecurity.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
2
Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of
orders freezing property or evidence (OJ L 196, 2.8.2003, p. 45).
3
Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of
mutual recognition to confiscation orders (OJ L 328, 24.11.2006, p. 59).
4
Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on
the mutual recognition of freezing orders and confiscation orders PE/38/2018/REV/1 (OJ L 303,
28.11.2018, p. 1).
Regulation (EU) […] of the European Parliament and of the Council on the digitalisation of judicial
cooperation and access to justice in cross-border civil, commercial and criminal matters (OJ L …).
5
JOIN/2020/18 final.
6
COM 2020/823 final.
EN 2 EN
The use of digital channels for communication in cross-border judicial proceedings would
facilitate judicial cooperation in civil, commercial and criminal matters. Therefore, the legal
basis for this initiative are Articles 81(2) and 82(1) of the Treaty on the Functioning of the
European Union (TFEU)7.
The use of digital channels for communication would facilitate judicial cooperation and the
effective access to justice in civil matters in line with Article 81(2) TFEU. Article 82(1)
TFEU is the legal basis for the Union to facilitate the cooperation between Member States’
judicial or other competent authorities in criminal proceedings and in the enforcement of
decisions.
• Subsidiarity (for non-exclusive competence)
Under Article 4(2)(j) of the TFEU, the competence to adopt measures in the area of freedom,
security and justice is shared between the Union and its Member States. Therefore, Member
States may act alone to govern the use of digital communication channels in the context of
judicial cooperation and access to justice to the extent that the Union has not exercised its
competence. However, without EU action, progress can be expected to be very slow and, even
where Member States take action, it is very difficult to ensure interoperability of the
communication channels without coordination and intervention at the EU level. Moreover, the
envisaged digitalisation measures are strictly linked to existing Union legal instruments in the
area of cross-border judicial cooperation and cannot be achieved by Member State acting
alone. Therefore, the objectives of this proposal cannot be fully achieved by the Member
States acting alone, but only at EU level.
There are already certain EU rules governing the conduct of communication, some of which
even provide for the use of modern technology. However, the existing rules do not ensure an
adequate and holistic infrastructure for electronic communication between individuals, legal
entities or competent authorities with the authorities of another Member State.
EU action is needed to coordinate Member States’ efforts and establish a coherent framework
for the existing EU rules. This will improve the efficiency, resilience, security and speed of
judicial procedures having cross-border implications and will simplify and speed up
communication between Member States’ authorities. Therefore, the administration of justice-
related cases with cross-border implications will improve.
Further benefits arise from driving forward the digitalisation of EU judicial cooperation and
bringing on board all Member States, as this will improve the current situation, where only
certain groups of Member States have taken action, resulting in a limited and fragmented
response to the identified problems.
• Proportionality
The proposed actions will not burden Member States beyond what is needed to achieve the
objective of digital communication in judicial cooperation in civil, commercial and criminal
matters. Provisions governing communication need to be amended so as to include the digital
communication channel. Since these provisions are laid down in Union legal acts, the only
appropriate means to amend them is through another Union act.
7
Consolidated version of the Treaty on the Functioning of the European Union (OJ C 326, 26.10.2012, p.
47–390).
EN 3 EN
The proposed amending Directive does not lay down new substantive rules, it is limited to
expanding the rules on communication in order to include the digital communication channel,
in-line with the proposal for a regulation.
• Choice of the instrument
Since the legal acts amended by this proposal are Framework Decisions and Directives, it is
appropriate to amend them through a Directive, which also sets out transposition aspects.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
CONSULTATIONS AND IMPACT ASSESSMENTS
• Stakeholder consultations
For more than a decade, the Commission has been working on e-Justice policy in close
cooperation with various stakeholders. These stakeholders have been consulted on the
proposal’s objectives and on the identified policy options. Following the consultation strategy
for this proposal, a broad range of stakeholders were consulted. Consultations were carried
out in the Council Working Party on e-Justice (EJUSTICE), the Council Working Party on
Civil Law Matters (JUSTCIV), the Council Working Party on Judicial Cooperation in
Criminal Matters (COPEN), the European Judicial Network in Civil and Commercial Matters,
and the European Judicial Network in Criminal Matters.
In publishing the inception impact assessment and launching a public consultation, the
Commission reached out to a broad range of stakeholders, including Member States’ national
authorities, non-governmental organisations, professional associations, business organisations
and individuals.
The findings of the consultations show support for the proposals’ objectives. The stakeholders
favoured a compulsory use of the digital channel for communication against a voluntary use
in judicial cooperation. They also supported the possibility for the parties to cross-border
proceedings to take part in oral hearings through videoconferencing or other distance
communication technology.
• Collection and use of expertise
The Commission engaged the services of a contractor to prepare a study to support the impact
assessment. The contractor carried out various stakeholder consultation activities specifically
designed for the purposes of the study, such as organising an EU level focus group, national
stakeholder consultation on the impacts of the policy options, carried out a national survey,
held one-to-one interviews, etc.
All data collected informed the preparation of the proposal, including the impact assessment.
In addition, the Commission used the considerable amount of existing data on the
digitalisation of justice in the EU. For instance from the EU Justice Scoreboard, the rule of
law report, data from the Council of Europe’s European Commission for the efficiency of
justice (CEPEJ) and the Digital Criminal Justice study.
• Impact assessment8
8
SWD(2021) 392
EN 4 EN
Since this proposal lays down alignment provisions to ensure coherence with the set of rules
included in the proposal for a Regulation on digitalisation of judicial cooperation and access
to justice in civil, commercial and criminal matters, the impact has been assessed as part of
the impact assessment presented in the accompanying staff working document to that
proposal.
The Regulatory Scrutiny Board (RSB) discussed the draft impact assessment on
22 September 2021 and delivered its positive opinion on 27 September 2021. The RSB made
the following recommendations:
(1) The problem analysis should be strengthened to highlight the main problems this proposal
aims to address. The analysis should be backed by evidence on voluntary participation in
digitalisation, non-recognition of electronic documents, signatures or seals and
interoperability.
(2) The report should explain how this proposal will ensure coherence with other EU-level
instruments designed to improve digitalisation that could be used in cross-border judicial
cooperation. The report should also explain why Member States do not fully exploit the
existing possibilities for digitalisation.
(3) The impact analysis should be strengthened with a clear presentation of impacts,
particularly investment costs and stakeholders affected. It should acknowledge the
uncertainties in the assumptions made and the implications these have for the impacts
assessed.
(4) The report should assess the effects of a potential increase of cross-border cases. It should
discuss if there is a risk that improved access to justice and more efficient cross-border
judicial cooperation could lead to delays in the treatment of cases due to higher workload for
judges and the time legal proceedings take.
(5) The report should clarify the data protection issues at stake and acknowledge that moving
from a paper to a digital format entails other risks. The report should address potential
sensitivities linked to the fact that having more data in digital format may not only ease their
transmission, but also creates data protection and security issues. The concerns raised by
stakeholders about data protection should be considered.
The RSB has also sent additional recommendations with the quality checklist.
In addressing the RSB’s recommendations, the following changes were introduced to the
impact assessment:
(1) The problem definition has been reformulated so that it reflects the actual problems
analysed in Section 2.
(2) The coherence with other initiatives, such as e-CODEX and e-IDAS has been explained,
as well as the links with the European e-Justice Portal9.
9
The main tool that has been developed as a one-stop shop for access to information and services in the
area of justice.
EN 5 EN
(3) Section 6 on the impacts of the baseline and the policy options has been restructured and
the main impacts (i.e. economic impacts, social impacts, impacts on fundamental rights) have
been outlined for each of the options. The section also addresses in what way the main
stakeholders will be affected by the proposal.
(4) Section 6 on the impacts clarified if there is a potential risk of an increased number of
cross-border cases and the capacity of the judiciary to absorb such a development.
(5) Clarifications on data protection have been added in Section 6.
In addition, the impact assessment was supplemented with the data available from the
supporting study and from Annex 7 of the report. The economic analysis and the costs for
Member States have been added to the report. The views of the stakeholders consulted have
been outlined in the corresponding sections of the report. The technical recommendations,
such as merging the outcome of the public consultation with Annex 2, numbering the pages of
the Annexes, deleting the Annex on the subsidiarity grid, have been addressed.
The impact assessment identified one non-legislative and one legislative policy option with
three sub-options. There were additional options that were discarded at an early stage. A
promotional campaign on using digital tools and the e-CODEX system for communicating in
cross-border judicial procedures has been discarded because it was considered that such a
campaign would not constitute a real alternative to regulatory action and could in any case be
carried out as part of the baseline scenario. The option of the electronic exchange of
information and data through a centralised EU system was not considered appropriate, as it
was difficult to justify from the point of view of proportionality and subsidiarity. In addition,
all information, data and documents would be stored in Commission infrastructure or
infrastructure of the entity managing the system (e.g. eu-LISA), while these would not be
party to cross-border exchanges. A centralised system would also constitute a single point of
failure, as all data would be stored in one place compared to a decentralised system where
data are stored by each Member State individually.
The baseline scenario against which the two main options were assessed did not envisage any
action to drive forward the digitalisation of cross-border judicial cooperation and the use of
digital tools to improve access to justice. Therefore, the use of electronic communication
between the authorities would remain voluntary. The use of electronic signatures/seals and
data protection responsibilities would continue to be fragmented. Therefore, the two options
considered in view of the outlined objectives of the proposal were adoption of a Commission
recommendation (non-legislative option) or adoption of a legal act – a regulation (legislative
option).
The legislative option would require a package of a Regulation with horizontal provisions and
amendments to existing Regulations to ensure consistency and a Directive with amendments
to existing Directives and Framework Decisions.
The non-legislative option would involve action to encourage Member States to use the
e-CODEX system for digital cross-border communication and access to justice. A
Commission recommendation could encourage Member States to follow a harmonised
approach to the use of electronic communications, including videoconferencing, electronic
documents, electronic seals and signatures. Given the voluntary nature of this approach,
Member States would be free to develop their own digital tools. Such action could be
technically and operationally feasible. Cost-effectiveness would depend on the individual
EN 6 EN
Member State approach to digitalisation and on their needs and resources. However, on the
extent to which the option fulfils the objectives of the proposal, a recommendation would not
guarantee the actual implementation of digital tools for communication, the interoperability of
the digital channel, the acceptance of electronic documents, or common standards on the use
and recognition of trust services.
Under the legislative option, legislative measures (a Regulation and a Directive) will be
adopted. A regulation will include rules establishing a secure electronic channel based on
e-CODEX (identified as the most appropriate technical solution in the impact assessment on
the Commission’s proposal for a Regulation on e-CODEX). This channel, constituting a
decentralised IT system, will be used for communication and exchange of information, data
and documents between courts and competent authorities, and where relevant with JHA
agencies and EU bodies. Rules will be introduced in support of communication between
individuals and legal entities, and Member States’ courts and competent authorities, including
rules on the use of videoconference or other distance communication technology. The
responsibilities of the data controllers and data processors will be outlined. This option is
based on the assumption that the IT systems for exchanges of European Investigation Orders
(EIOs) and the service of documents/taking of evidence, as developed by the Commission,
will be extended to all cross-border judicial communication regulated in the EU judicial
cooperation instruments. Member States will be able to connect their national IT system to a
decentralised network or use the software solution developed by the Commission and
provided free of charge. This will allow direct communication between the courts and/or
competent authorities participating in the proceedings under the EU instruments in cross-
border judicial cooperation in civil, commercial or criminal matters. Three sub-options were
considered under the legislative option, namely a) compulsory or voluntary use of the digital
channel, b) compulsory or voluntary acceptance of electronic communication regarding
natural and legal persons, and c) regulatory or non-regulatory approach to the use and
recognition of trust services. A Directive will amend the existing Framework Decisions and
Directives to align them with the rules of the Regulation.
After comparing the policy options and the sub-options, and assessing them against the
objectives of the proposal, the preferred option chosen is the legislative option. This option
will make using digital communication compulsory (subject to justified exceptions) for
communication between courts and competent authorities (and between them and the EU JHA
agencies and bodies). It will also oblige courts and competent authorities to accept electronic
communication from natural and legal persons, provide a legal basis for the use of
videoconferencing or other distance communication technology for oral hearings in cross-
border cases, and the use and recognition of trust services.
While the courts and competent authorities will be required to accept electronic
communication from natural and legal persons, the use of the digital channel will be voluntary
for the natural and legal persons. They will be free to use traditional means of communication,
including a paper based one if they wish.
The use of the digital channel can be expected to have a positive environmental impact, due to
the use of less paper and postage. These environmental impacts relate mainly to the adoption
of electronic means of communication and a likely increase in the use of videoconferencing
and distance communication instead of in-person hearings. While it could be presumed that
the production and operation of equipment will consume energy, the overall impact on the
environment will be positive.
EN 7 EN
• Regulatory fitness and simplification
This proposal aims at introducing modern digital technology in judicial cooperation in civil,
commercial and criminal matters with cross-border implications. The expected result is
quicker, cheaper, more secure and reliable communication between the competent authorities.
The use of the digital communication channel will alleviate administrative burden and will
render processing of cases more efficient.
• Fundamental rights
Making use of the digital channel of communication between Member States’ courts and
competent authorities will help to overcome delays, reduce the administrative burden and
facilitate and accelerate the exchange of information between these authorities. As a result,
the overall time for processing cases will be reduced as well as the costs for the proceedings.
THE DECENTRALISED NATURE OF THE SYSTEM, ESTABLISHED BY THE PROPOSED
REGULATION ON DIGITALISATION OF JUDICIAL COOPERATION AND ACCESS TO
JUSTICE IN CIVIL, COMMERCIAL AND CRIMINAL MATTERS, FOR THE EXCHANGE
BETWEEN THE COURTS AND THE COMPETENT AUTHORITIES AND BETWEEN THESE
ENTITIES AND NATURAL OR LEGAL PERSONS, MEANS THAT THERE WILL BE NO DATA
STORAGE OR DATA PROCESSING BY THE ENTITY ENTRUSTED WITH THE
OPERATIONAL MANAGEMENT OF THE SYSTEM’S COMPONENTS. DEPENDING ON
WHETHER AN ACCESS POINT TO THE SYSTEM IS OPERATED BY AN EU INSTITUTION,
AGENCY OR BODY, OR AT NATIONAL LEVEL, AND DEPENDING ON WHICH NATIONAL
AUTHORITIES ARE PROCESSING PERSONAL DATA AND FOR WHAT PURPOSES, EITHER
REGULATION (EU) 2018/172510 OR THE GENERAL DATA PROTECTION
REGULATION11 OR DIRECTIVE (EU) 2016/68012 WILL APPLY.4. BUDGETARY
IMPLICATIONS
This proposal ensures coherence with the cohesive set of rules laid down in the proposed
Regulation on digitalisation of judicial cooperation and access to justice in civil, commercial
and criminal matters. Therefore, its budgetary impact is already considered as part of the
proposed Regulation, which addresses technical implementation aspects, whereas this
proposal only ensures legal alignment.
For this reason, the proposal for an amending directive will have no standalone budgetary
implications.
10
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the
protection of natural persons with regard to the processing of personal data by the Union institutions,
bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No
45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39–98).
11
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free movement of
such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016,
p. 1–88).
12
Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data by competent authorities for
the purposes of the prevention, investigation, detection or prosecution of criminal offences or the
execution of criminal penalties, and on the free movement of such data, and repealing Council
Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89–131).
EN 8 EN
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
Since the technical aspects of implementing the judicial cooperation through the digital
communication channel are governed by the proposed Regulation on digitalisation of judicial
cooperation and access to justice in civil, commercial and criminal matters, the
implementation, monitoring, evaluation and reporting on the achievement of its specific goals,
shall be performed under the rules of the Regulation.
The scope of this proposal is limited to amending certain legal provisions on communication.
Therefore, its impact should be monitored, evaluated and reported on under the individual
amended instruments.
• Explanatory documents (for directives)
This Directive does not require Explanatory Documents on the transposition.
• Detailed explanation of the specific provisions of the proposal
Articles 1 – 11 - introduce amendments to the Framework Decisions and Directives in civil,
commercial and criminal matters to include references to the digital means of communication
as established by the Regulation on digitalisation of judicial cooperation and access to justice
in civil, commercial and criminal matters, to avoid uncertainty as to the communication
means to be used under the existing legal acts.
Article 12 – 15 - set out the transposition periods for the implementation of the amendments
in the concerned Directives and Framework decisions.
Article 16 - provides that the Directive would enter into force on the twentieth day following
that of its publication in the Official Journal of the European Union.
Article 17 – clarifies that the Directive is addressed to the Member States in accordance with
the Treaties.
EN 9 EN
2021/0395 (COD)
Proposal for a
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
amending Council Directive 2003/8/EC, Council Framework Decisions 2002/465/JHA,
2002/584/JHA, 2003/577/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA,
2008/947/JHA, 2009/829/JHA and 2009/948/JHA, and Directive 2014/41/EU of the
European Parliament and of the Council, as regards digitalisation of judicial
cooperation
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 81(2), points (e) and (f) and Article 82(1), (d) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1) In its 2 December 2020 Communication on the digitalisation of justice in the EU 1 the
Commission identified the need to modernise the legislative framework of the Union’s
cross-border procedures in civil, commercial and criminal law, in line with the “digital
by default” principle, while ensuring all necessary safeguards to avoid social
exclusion.
(2) Facilitating judicial cooperation between the Member States is among the main
objectives of the Union’s area of freedom, security and justice enshrined in Title V of
Part Three of the Treaty on the Functioning of the European Union.
(3) For the purposes of enhancing judicial cooperation in civil commercial and criminal
matters with cross-border implications, legal acts of the Union providing for
communication between competent authorities, including Union agencies and bodies,
should be complemented by conditions for conducting such communication through
digital means.
(4) In order to achieve these goals, Regulation (EU) …/…[Digitalisation Regulation] has
been adopted.
(5) For the purposes of ensuring the full attainment of the objectives of Regulation (EU)
…/…[Digitalisation Regulation], and for the alignment of the existing Union legal
acts in civil, commercial and criminal matters with that Regulation, it is necessary to
1
Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions. Digitalisation of justice in the
European Union. A toolbox of opportunities, COM(2020) 710 final
EN 10 EN
amend the following legal acts: Council Directive 2002/8/EC2, Council Framework
Decisions 2002/465/JHA3, 2002/584/JHA4, 2003/577/JHA5, 2005/214/JHA6,
2006/783/JHA7, 2008/909/JHA8, 2008/947/JHA9, 2009/829/JHA10 and
11
2009/948/JHA , and Directive 2014/41/EU of the European Parliament and of the
Council12.
(6) The amendments seek to ensure that communication between authorities takes place in
accordance with the rules and principles set out in Regulation (EU)
…/…[Digitalisation Regulation].
(7) Whereas this Directive sets out amendments to rules already transposed into the
national legal order of the Member States, it should also have specific provisions on
the transposition of these amendments. The transposition provisions should be aligned
with the implementation timeline provided for in Regulation (EU)
…/…[Digitalisation Regulation].
(8) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark,
annexed to the Treaty on European Union and to the Treaty on the Functioning of the
European Union, Denmark is not taking part in the adoption of this Directive and is
not bound by it or subject to its application.
(9) [In accordance with Articles 1, 2 and 4a(1) of Protocol No 21 on the position of the
United Kingdom and Ireland in respect of the area of freedom, security and justice,
annexed to the Treaty on European Union and to the Treaty on the Functioning of the
European Union, and without prejudice to Article 4 of that Protocol, Ireland is not
taking part in the adoption of this Directive and is not bound by it or subject to its
application.]
OR
2
Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes
by establishing minimum common rules relating to legal aid for such disputes (OJ L 026, 31.1.2003,
p.41).
3
Council Framework Decision of 13 June 2002 on joint investigation teams (OJ L 162, 20.6.2002, p. 1).
4
2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the
surrender procedures between Member States - Statements made by certain Member States on the
adoption of the Framework Decision
5
Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender
procedures between Member States (OJ L 190, 18.7.2002, p. 1–20).
6
Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of
mutual recognition to financial penalties (OJ L 76, 22.3.2005, p. 16–30).
7
Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of
mutual recognition to confiscation orders (OJ L 328, 24.11.2006, p. 59–78).
8
Council Framework Decision 2008/909/JHA of 27 November 2008 on the application of the principle
of mutual recognition to judgments in criminal matters imposing custodial sentences or measures
involving deprivation of liberty for the purpose of their enforcement in the European Union (OJ L 327,
5.12.2008, p. 27–46).
9
Council Framework Decision 2008/947/JHA of 27 November 2008 on the application of the principle
of mutual recognition to judgments and probation decisions with a view to the supervision of probation
measures and alternative sanctions (OJ L 337, 16.12.2008, p. 102–122).
10
Council Framework Decision 2009/829/JHA of 23 October 2009 on the application, between Member
States of the European Union, of the principle of mutual recognition to decisions on supervision
measures as an alternative to provisional detention (OJ L 294, 11.11.2009, p. 20–40).
11
Council Framework Decision 2009/948/JHA of 30 November 2009 on prevention and settlement of
conflicts of exercise of jurisdiction in criminal proceedings (OJ L 328, 15.12.2009, p. 42–47).
12
Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the
European Investigation Order in criminal matters (OJ L 130, 1.5.2014, p. 1–36).
EN 11 EN
[In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of
the United Kingdom and Ireland in respect of the area of freedom, security and
justice, annexed to the Treaty on European Union and to the Treaty on the
Functioning of the European Union, Ireland has notified [, by letter of …,] its wish to
take part in the adoption and application of this Directive],
HAVE ADOPTED THIS DIRECTIVE:
CHAPTER I
AMENDMENTS TO LEGAL ACTS IN THE AREA OF JUDICIAL
COOPERATION IN CIVIL AND COMMERCIAL MATTERS
Article 1
Amendments to Directive 2002/8/EC
In Article 13 of Directive 2002/8/EC, paragraph 4 is replaced by the following:
“4. The competent transmitting authority shall transmit the application to the competent
receiving authority in the other Member State t in accordance with Article 3 of Regulation
(EU) …/…[Digitalisation Regulation]* within 15 days of the receipt of the application duly
completed in one of the languages referred to in paragraph 2 of this Article, and the
supporting documents, translated, where necessary, into one of those languages.”.
________
Regulation (EU) […] of the European Parliament and of the Council on the
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 (OJ L
…).”.
CHAPTER II
AMENDMENTS TO LEGAL ACTS IN THE AREA OF JUDICIAL
COOPERATION IN CRIMINAL MATTERS
Article 2
Amendment to Framework Decision 2002/465/JHA
In Article 1 of Framework Decision 2002/465/JHA, the following paragraph is added:
“13. Written communications between Member States to set up a joint investigation team and
sign a joint investigation team agreement, shall be made in accordance with Article 3 of
Regulation (EU) …/…[Digitalisation Regulation]*.
_______
Regulation (EU) […] of the European Parliament and of the Council on the
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 (OJ L
…).”
EN 12 EN
Article 3
Amendment to Framework Decision 2002/584/JHA
Framework Decision 2002/584/JHA is amended as follows:
(1) in Article 10, paragraph 4 is replaced by the following:
“The issuing judicial authority shall forward the European arrest warrant in accordance with
Article 3 of Regulation (EU) …/…[Digitalisation Regulation]*, without prejudice to
paragraphs 2 and 3 of this Article.”;
________
Regulation (EU) […] of the European Parliament and of the Council on the
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 (OJ L
…).”;
(2) in Article 18, paragraph (1), point (a) is replaced by the following:
(a) either agree that the requested person should be heard according to Article 19 or via video-
conference in accordance with Article 8 of Regulation (EU) …/…[Digitalisation Regulation]
(3) in Article 25, paragraph 3 is replaced by the following:
“3. The transit request and the information set out in paragraph 1 of this Article may be
addressed to the authority designated pursuant to paragraph 2 of this Article in accordance
with Article 3 of Regulation (EU) …/…[Digitalisation Regulation]. The Member State of
transit shall notify its decision by the same procedure.”.
Article 4
Amendment to Framework Decision 2003/577/JHA
Framework Decision 2003/577/JHA is amended as follows:
(1) in Article 4, paragraph 1 is replaced by the following:
“1. A freezing order within the meaning of this Framework Decision, together with the
certificate provided for in Article 9 of this Framework Decision, shall be transmitted by the
judicial authority which issued it directly to the competent judicial authority for execution in
accordance with Article 3 of Regulation (EU) …/…[Digitalisation Regulation].”.
________
Regulation (EU) […] of the European Parliament and of the Council on the
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 (OJ L
…).”;
(2) in Article 5(1), the third subparagraph is replaced by the following:
“A report on the execution of the freezing order shall be made forthwith to the competent
authority in the issuing State in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation].”;
(3) in Article 7, paragraph 3 is replaced by the following:
EN 13 EN
“3. Any decision to refuse recognition or execution shall be taken and notified forthwith to the
competent judicial authorities of the issuing State in accordance with Article 3 of Regulation
(EU) …/…[Digitalisation Regulation].”;
(4) Article 8 is amended as follows:
(a) paragraph 2 is replaced by the following:
“2. A report on the postponement of the execution of the freezing order, including the grounds
for the postponement and, if possible, the expected duration of the postponement, shall be
made forthwith to the competent authority in the issuing State in accordance with Article 3 of
Regulation (EU) …/…[Digitalisation Regulation].”;
(b) paragraph 3 is replaced by the following:
“3. As soon as the ground for postponement has ceased to exist, the competent judicial
authority of the executing State shall forthwith take the necessary measures for the execution
of the freezing order and inform the competent authority in the issuing State thereof in
accordance with Article 3 of Regulation (EU) …/…[Digitalisation Regulation].”
Article 5
Amendment to Framework Decision 2005/214/JHA
Council Framework Decision 2005/214/JHA is amended as follows:
(1) in Article 4, paragraph 3 is replaced by the following:
“3. The decision or a certified copy of it, together with the certificate, shall be transmitted by
the competent authority in the issuing State directly to the competent authority in the
executing State in accordance with Article 3 of Regulation (EU) …/…[Digitalisation
Regulation]*. The original of the decision, or a certified copy of it, and the original of the
certificate, shall be sent to the executing State if it so requires. All official written
communications shall also be made directly between the said competent authorities in
accordance with Article 3 of Regulation (EU) …/…[Digitalisation Regulation].”.
________
Regulation (EU) […] of the European Parliament and of the Council on the
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 (OJ L
…).”;
(2) In Article 7, paragraph 3 is replaced by the following:
“3. In cases referred to in paragraphs 1 and 2(c) and (g), before deciding not to recognise and
to execute a decision, either totally or in part, the competent authority in the executing State
shall consult the competent authority in the issuing State, in accordance with Article 3 of
Regulation (EU) …/…[Digitalisation Regulation]*, and shall, where appropriate, ask it to
supply any necessary information without delay.”
(3) In Article 14, introductory wording, is replaced by the following:
“The competent authority of the executing State shall without delay inform the competent
authority of the issuing State in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation].”.
EN 14 EN
Article 6
Amendment to Framework Decision 2006/783/JHA
Framework Decision 2006/783/JHA is amended as follows:
(1) in Article 4, paragraph 2 is replaced by the following:
“2. The confiscation order or a certified copy thereof, together with the certificate, shall be
transmitted by the competent authority of the issuing State directly to the authority of the
executing State which is competent to execute it, in accordance with Article 3 of Regulation
(EU) …/…[Digitalisation Regulation]*. The original of the confiscation order, or a certified
copy thereof, and the original of the certificate shall be transmitted to the executing State if it
so requires. All official written communications shall be made directly between the said
competent authorities in accordance with Article 3 of Regulation (EU) …/…[Digitalisation
Regulation].”.
________
Regulation (EU) […] of the European Parliament and of the Council on the
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 (OJ L
…).”;
(2) Article 10 is amended as follows:
(a) paragraph 3 is replaced by the following:
“3. In the case of postponement pursuant to paragraph 1, point (a), of this Article the
competent authority of the executing State shall inform the competent authority of the issuing
State thereof immediately in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation], and the competent authority of the issuing State shall
comply with the obligations referred to in Article 14(3) of this Framework Decision.”;
(b) paragraph 4 is replaced by the following:
“4. In the cases referred to in paragraph 1, points (b) to (e), of this Article, a report on the
postponement, including the grounds for the postponement and, if possible, the expected
duration of the postponement, shall be made forthwith by the competent authority of the
executing State to the competent authority of the issuing State in accordance with Article 3 of
Regulation (EU) …/…[Digitalisation Regulation].
As soon as the ground for postponement has ceased to exist, the competent authority of the
executing State shall forthwith take the necessary measures for the execution of the
confiscation order and inform the competent authority of the issuing State thereof in
accordance with Article 3 of Regulation (EU) …/…[Digitalisation Regulation].”.
(3) in Article 14(3), the introductory wording, is replaced by the following:
“The competent authority of the issuing State shall immediately inform the competent
authority of any executing State concerned in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation]:”
(4) Article 15 is replaced by the following:
“Article 15
Termination of execution
EN 15 EN
The competent authority of the issuing State shall forthwith inform the competent authority of
the executing State in accordance with Article 3 of Regulation (EU) …/…[Digitalisation
Regulation] of any decision or measure as a result of which the order ceases to be enforceable
or shall be withdrawn from the executing State for any other reason. The executing State shall
terminate execution of the order as soon as it is informed by the competent authority of the
issuing State of that decision or measure.”;
(5) In Article 17, the introductory wording, is replaced by the following:
“The competent authority of the executing State shall without delay inform the competent
authority of the issuing State in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation]:”
Article 7
Amendments to Framework Decision 2008/909/JHA
Framework Decision 2008/909/JHA is amended as follows:
(1) in Article 5, paragraph 1 is replaced by the following:
“1. The judgment or a certified copy of it, together with the certificate, shall be forwarded, by
the competent authority of the issuing State directly to the competent authority of the
executing State in accordance with Article 3 of Regulation (EU) …/…[Digitalisation
Regulation]*. The original of the judgment, or a certified copy of it, and the original of the
certificate, shall be sent to the executing State if it so requires. All official written
communications shall also be made directly between the said competent authorities in
accordance with Article 3 of Regulation (EU) …/…[Digitalisation Regulation].”.
________
Regulation (EU) […] of the European Parliament and of the Council on the
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 (OJ L
…).”;
(2) in Article 16, paragraph 1 is replaced by the following:
“1. Each Member State shall, in accordance with its law, permit the transit through its
territory of a sentenced person who is being transferred to the executing State, provided that a
copy of the certificate referred to in Article 4 of this Framework Decision has been forwarded
to it by the issuing State together with the transit request. The transit request and the
certificate may be transmitted in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation]. Upon request of the Member State to permit transit, the
issuing State shall provide a translation of the certificate into one of the languages, to be
indicated in the request, which the Member State requested to permit transit accepts.”;
(3) in Article 21, the introductory wording is replaced by the following:
“The competent authority of the executing State shall without delay inform the competent
authority of the issuing State in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation]:”.
Article 8
Amendments to Framework Decision 2008/947/JHA
Framework Decision 2008/947/JHA is amended as follows:
EN 16 EN
(1) Article 6 is amended as follows:
(a) paragraph 2 is replaced by the following:
“2. The judgment and, where applicable, the probation decision, together with the certificate
referred to in paragraph 1 of this Article, shall be forwarded by the competent authority of the
issuing State directly to the competent authority of the executing State in accordance with
Article 3 of Regulation (EU) …/…[Digitalisation Regulation]*. The original of the judgment
and, where applicable, the probation decision, or certified copies thereof, as well as the
original of the certificate, shall be sent to the competent authority of the executing State if it
so requires. All official written communications shall also be made directly between the said
competent authorities in accordance with Article 3 of Regulation (EU) …/…[Digitalisation
Regulation].”.
________
Regulation (EU) […] of the European Parliament and of the Council on the
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 (OJ L
…).”;
(b) paragraph 7 is replaced by the following:
“7. When an authority of the executing State which receives a judgment and, where
applicable, a probation decision, together with the certificate referred to in paragraph 1 of this
Article, has no competence to recognise it and take the ensuing necessary measures for the
supervision of the probation measure or alternative sanction, it shall, ex officio, forward it to
the competent authority and shall without delay inform the competent authority of the issuing
State accordingly in accordance with Article 3 of Regulation (EU) …/…[Digitalisation
Regulation].”;
(2) in Article 12, paragraph 1 is replaced by the following:
“1. The competent authority of the executing State shall decide as soon as possible, and within
60 days of receipt of the judgment and, where applicable, the probation decision, together
with the certificate referred to in Article 6(1) of this Framework Decision, whether or not to
recognise the judgment and, where applicable, the probation decision and assume
responsibility for supervising the probation measures or alternative sanctions. It shall
immediately inform the competent authority of the issuing State of its decision, in accordance
with Article 3 of Regulation (EU) …/…[Digitalisation Regulation].”;
(3) Article 16 is amended as follows:
(a) paragraph 1 is replaced by the following:
“1. The competent authority of the executing State shall without delay inform the competent
authority of the issuing State, in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation], of all decisions on the:
(a) modification of the probation measure or alternative sanction;
(b) revocation of the suspension of the execution of the judgment or revocation of the decision
on conditional release;
(c) enforcement of a custodial sentence or measure involving deprivation of liberty, because
of non-compliance with a probation measure or alternative sanction;
(d) lapsing of the probation measure or alternative sanction.”;
EN 17 EN
(b) paragraph 3 is replaced by the following:
“3. The competent authority of the issuing State shall immediately inform the competent
authority of the executing State, in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation], of any circumstances or findings which, in its opinion,
could entail one or more of the decisions referred to in paragraph 1, points (a), (b) or (c) of
this Article being taken. “;
(4) in Article 17, paragraph 3 is replaced by the following:
“3. Notice of the findings mentioned in paragraph 1 points (a) and (b) and in paragraph 2 of
this Article shall be given using the standard form set out in Annex II. Notice of the facts and
circumstances mentioned in paragraph 1, point (c), of this Article shall be given, in
accordance with Article 3 of Regulation (EU) …/…[Digitalisation Regulation], including,
where possible, through the form set out in Annex II of this Framework Decision.”;
(5) in Article 18, the introductory wording is replaced by the following:
“The competent authority of the executing State shall without delay inform the competent
authority of the issuing State, in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation], of:”.
Article 9
Amendments to Framework Decision 2009/829/JHA
Framework Decision 2009/829/JHA is amended as follows:
(1) in Article 10, paragraph 2 is replaced by the following:
“2. The decision on supervision measures or a certified copy of it, together with the
certificate, shall be forwarded by the competent authority in the issuing State directly to the
competent authority in the executing State in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation]*. The original of the decision on supervision measures, or a
certified copy of it, and the original of the certificate, shall be sent to the executing State if it
so requires. All official written communications shall also be made directly between the said
competent authorities in accordance with Article 3 of Regulation (EU) …/…[Digitalisation
Regulation].”.
________
Regulation (EU) […] of the European Parliament and of the Council on the
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 (OJ L
…).”;
(2) in Article 20(2), the introductory wording is replaced by the following:
“The competent authority in the executing State shall, without delay, inform the competent
authority in the issuing State in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation]”.
Article 10
Amendments to Framework Decision 2009/948/JHA
Article 7 of Framework Decision 2009/948/JHA is replaced by the following:
“Article 7
EN 18 EN
Means of communication
The contacting and contacted authorities shall communicate in accordance with Article 3 of
Regulation (EU) …/…[Digitalisation Regulation]*.
________
Regulation (EU) […] of the European Parliament and of the Council on the
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 (OJ L
…).”.
Article 11
Amendment to Directive 2014/41/EU
Directive 2014/41/EU is amended as follows:
(1) in Article 7, paragraph 1 is replaced by the following:
“1. The EIO completed in accordance with Article 5 of this Directive shall be transmitted
from the issuing authority to the executing authority in accordance with Article 3 of
Regulation (EU) …/…[Digitalisation Regulation]*.
________
Regulation (EU) […] of the European Parliament and of the Council on the
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 (OJ L
…).”;
(2) in Article 15, paragraph 2 is replaced by the following:
“2. As soon as the ground for postponement has ceased to exist, the executing authority shall
forthwith take the necessary measures for the execution of the EIO and inform the issuing
authority in accordance with Article 3 of Regulation (EU) …/…[Digitalisation Regulation].”;
(3) Article 16 is amended as follows:
(a) paragraph 2 is replaced by the following:
“2. Without prejudice to Article 10(4) and (5) of this Directive the executing authority shall
inform the issuing authority immediately by any means:
(a) if it is impossible for the executing authority to take a decision on the recognition or
execution due to the fact that the form provided for in Annex A is incomplete or manifestly
incorrect;
(b) if the executing authority, in the course of the execution of the EIO, considers without
further enquiries that it may be appropriate to carry out investigative measures not initially
foreseen, or which could not be specified when the EIO was issued, in order to enable the
issuing authority to take further action in the specific case; or
(c) if the executing authority establishes that, in the specific case, it cannot comply with
formalities and procedures expressly indicated by the issuing authority in accordance with
Article 9.
EN 19 EN
Upon request by the issuing authority, the information shall be confirmed without delay in
accordance with Article 3 of Regulation (EU) …/…[Digitalisation Regulation].”;
(b) in paragraph 3, the introductory wording is replaced by the following:
“Without prejudice to Article 10(4) and (5) of this Directive the executing authority shall
inform the issuing authority without delay in accordance with Article 3 of Regulation (EU)
…/…[Digitalisation Regulation]:”.
CHAPTER III
TRANSPOSITION
Article 12
Transposition of Articles 3, 7 and 11
Member States shall adopt and publish, by [two years from the adoption of the Implementing
act referred to in Article 12(3) of Regulation (EU) …/…(Digitalisation Regulation) at the
latest, the laws, regulations and administrative provisions necessary to comply with Articles 3,
7 and 11. They shall forthwith communicate to the Commission the text of those provisions.
They shall apply those provisions from the first day of the month following the period of two
years after the adoption of the implementing act referred to in Article 12(3) of Regulation
(EU) …/…[Digitalisation Regulation].
When Member States adopt those provisions, they shall contain a reference to Articles 3, 7
and 11 of this Directive or be accompanied by such a reference on the occasion of their
official publication. Member States shall determine how such reference is to be made.
Article 13
Transposition of Article 1
Member States shall adopt and publish, by [two years from the adoption of the Implementing
act referred to in Article 12(4) of Regulation (EU) …/…(Digitalisation Regulation)] at the
latest, the laws, regulations and administrative provisions necessary to comply with Article 1.
They shall forthwith communicate to the Commission the text of those provisions.
They shall apply those provisions from the first day of the month following the period of two
years after the adoption of the implementing act referred to in Article 12(4) of Regulation
(EU) …/…[Digitalisation Regulation].
When Member States adopt those provisions, they shall contain a reference to Article 1 of this
Directive or be accompanied by such a reference on the occasion of their official publication.
Member States shall determine how such reference is to be made.
Article 14
Transposition of Articles 4, 5, 6 and 10
Member States shall adopt and publish, by [two years from the adoption of the Implementing
act referred to in Article 12(5) of Regulation (EU) …/…(Digitalisation Regulation)] at the
latest, the laws, regulations and administrative provisions necessary to comply with Articles 4,
5, 6 and 10. They shall forthwith communicate to the Commission the text of those
provisions.
EN 20 EN
They shall apply those provisions from the first day of the month following the period of two
years after the adoption of the implementing act referred to in Article 12(5) of Regulation
(EU) …/…[Digitalisation Regulation].
When Member States adopt those provisions, they shall contain a reference to Articles 4, 5, 6,
10 and 11 of this Directive or be accompanied by such a reference on the occasion of their
official publication. Member States shall determine how such reference is to be made.
Article 15
Transposition of Articles 2, 8 and 9
Member States shall adopt and publish, by [two years from the adoption of the Implementing
act referred to in Article 12(6) of Regulation (EU) …/…(Digitalisation Regulation)] at the
latest, the laws, regulations and administrative provisions necessary to comply with Articles 2,
8 and 9. They shall forthwith communicate to the Commission the text of those provisions.
They shall apply those provisions from the first day of the month following the period of two
years after the adoption of the implementing act referred to in Article 12(6) of Regulation
(EU) …/…[Digitalisation Regulation].
When Member States adopt those provisions, they shall contain a reference to Articles 2, 8
and 9 of this Directive or be accompanied by such a reference on the occasion of their official
publication. Member States shall determine how such reference is to be made.
Article 16
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in
the Official Journal of the European Union.
Article 17
This Directive is addressed to the Member States in accordance with the Treaties.
Done at Brussels,
For the European Parliament For the Council
The President The President
EN 21 EN
EUROPEAN
COMMISSION
Brussels, 1.12.2021
COM(2021) 759 final
ANNEXES 1 to 2
ANNEXES
to the
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE
COUNCIL
on the 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
{SEC(2021) 580 final} - {SWD(2021) 392 final} - {SWD(2021) 393 final}
EN EN
ANNEX 1
Legal acts in the area of judicial cooperation in civil and commercial matters
(1) Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in
cross-border disputes by establishing minimum common rules relating to legal
aid for such disputes.
(2) Regulation (EC) No 805/2004 of the European Parliament and of the Council of
21 April 2004 creating a European Enforcement Order for uncontested claims.
(3) Regulation (EC) No 1896/2006 of the European Parliament and of the Council
of 12 December 2006 creating a European order for payment procedure.
(4) Regulation (EC) No 861/2007 of the European Parliament and of the Council of
11 July 2007 establishing a European Small Claims Procedure.
(5) Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction,
applicable law, recognition and enforcement of decisions and cooperation in
matters relating to maintenance obligations.
(6) Regulation (EU) No 650/2012 of the European Parliament and of the Council of
4 July 2012 on jurisdiction, applicable law, recognition and enforcement of
decisions and acceptance and enforcement of authentic instruments in matters of
succession and on the creation of a European Certificate of Succession.
(7) Regulation (EU) No 1215/2012 of the European Parliament and of the Council
of 12 December 2012 on jurisdiction and the recognition and enforcement of
judgments in civil and commercial matters (recast).
(8) Regulation (EU) No 655/2014 of the European Parliament and of the Council of
15 May 2014 establishing a European Account Preservation Order procedure to
facilitate cross-border debt recovery in civil and commercial matters.
(9) Regulation (EU) 2015/848 of the European Parliament and of the Council of 20
May 2015 on insolvency proceedings.
(10) Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced
cooperation in the area of jurisdiction, applicable law and the recognition and
enforcement of decisions in matters of matrimonial property regimes.
(11) Council Regulation (EU) 2016/1104 of 24 June 2016 implementing enhanced
cooperation in the area of jurisdiction, applicable law and the recognition and
enforcement of decisions in matters of the property consequences of registered
partnerships.
(12) Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the
recognition and enforcement of decisions in matrimonial matters and the matters
of parental responsibility, and on international child abduction.
EN 1 EN
ANNEX 2
Legal acts in the area of judicial cooperation in criminal matters
(1) Council Framework Decision 2002/465/JHA of 13 June 2002 on joint
investigation teams.
(2) Council Framework Decision 2002/584/JHA of 13 June 2002 on the European
arrest warrant and the surrender procedures between Member States.
(3) Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in
the European Union of orders freezing property or evidence.
(4) Council Framework Decision 2005/214/JHA of 24 February 2005 on the
application of the principle of mutual recognition to financial penalties.
(5) Council Framework Decision 2006/783/JHA of 6 October 2006 on the
application of the principle of mutual recognition to confiscation orders.
(6) Council Framework Decision 2008/909/JHA of 27 November 2008 on the
application of the principle of mutual recognition to judgments in criminal
matters imposing custodial sentences or measures involving deprivation of
liberty for the purpose of their enforcement in the European Union.
(7) Council Framework Decision 2008/947/JHA of 27 November 2008 on the
application of the principle of mutual recognition to judgments and probation
decisions with a view to the supervision of probation measures and alternative
sanctions.
(8) Council Framework Decision 2009/829/JHA of 23 October 2009 on the
application, between Member States of the European Union, of the principle of
mutual recognition to decisions on supervision measures as an alternative to
provisional detention.
(9) Council Framework Decision 2009/948/JHA of 30 November 2009 on
prevention and settlement of conflicts of exercise of jurisdiction in criminal
proceedings.
(10) Directive 2014/41/EU of the European Parliament and of the Council of 3 April
2014 regarding the European Investigation Order in criminal matters.
(11) Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14
November 2018 on the mutual recognition of freezing orders and confiscation
orders.
EN 2 EN
EUROPEAN
COMMISSION
Brussels, 1.12.2021
COM(2021) 759 final
2021/0394 (COD)
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the 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
{SEC(2021) 580 final} - {SWD(2021) 392 final} - {SWD(2021) 393 final}
EN EN
EXPLANATORY MEMORANDUM
1. CONTEXT OF THE PROPOSAL
• Reasons for and objectives of the proposal
Efficient cross-border judicial cooperation requires secure, reliable and time-efficient
communication between courts and competent authorities. Moreover, this cooperation should
be carried out in a way that does not create a disproportionate administrative burden and is
resilient to force majeure circumstances. These considerations are equally important for
individuals and legal entities, as getting effective access to justice in a reasonable time is a
crucial aspect of the right to a fair trial, as enshrined in Article 47 of the EU Charter of
Fundamental Rights of the European Union1 (the Charter).
To protect their rights, both individuals and legal entities should be able to rely on effective
remedies. Mere access to judicial authorities does not automatically constitute effective access
to justice. For this reason, it is important to find ways to facilitate the conduct of procedures
and reduce practical difficulties as much as possible. Individuals and legal entities should be
able to exercise their rights and comply with their obligations in a swift, cost-efficient and
transparent way.
At EU level, there exists a comprehensive set of instruments designed to enhance judicial
cooperation and access to justice in cross-border civil, commercial and criminal cases. Many
of these govern the communication between authorities, including in certain cases with the
EU Justice and Home Affairs (JHA) agencies and bodies, and between authorities and
individuals or legal entities. However, most instruments do not provide for engaging in such
communication through digital means. Even where they do, other gaps may exist, such as a
lack of secure and reliable digital communication channels or non-recognition of electronic
documents, signatures and seals. This deprives judicial cooperation and access to justice of
using the most efficient, secure and reliable channels of communication available.
In addition, the COVID-19 pandemic has shown that force majeure events may severely
affect the normal functioning of Member States’ justice systems. During the crisis, in many
cases national courts have been unable to maintain normal operations due to the spread of the
virus. Member States were forced to take a number of measures ranging from full lockdowns
to treating certain priority cases only. At the same time, the use of digital technologies (e.g.
email, videoconference, etc.) helped to limit disruption2. However, many of the technical
solutions employed were developed in an ad hoc manner, and did not necessarily satisfy
security and fundamental rights standards to the full. Judicial cooperation and access to justice
in EU cross-border cases have been similarly affected, and the COVID-19 pandemic has
underlined the need to ensure the resilience of communication.
Against this background, the rules on digitalisation set out in this proposal aim at improving
access to justice and the efficiency and resilience of the communication flows inherent to the
cooperation between judicial and other competent authorities in EU cross-border cases.
1
Charter of Fundamental Rights of the European Union (OJ C 326, 26.10.2012, p. 391–407).
2
COM(2021) 700 final.
EN 1 EN
The use of digital technologies has the potential to make judicial systems more efficient in
this regard, by easing the administrative burden, shortening case processing times, making
communication more secure and reliable, and partially automating case handling. However, as
experience has shown, leaving Member States to develop their own national IT solutions
leads to a fragmented approach and risks solutions not being compatible.
Therefore, to guarantee a common approach towards the use of modern technologies in cross-
border judicial cooperation and access to justice, this initiative aims to:
Ensure the availability and use of electronic means of communication in cross-
border cases between Member States’ judicial and other competent authorities,
including the relevant JHA agencies and EU bodies, where such
communication is provided for in EU legal instruments on judicial cooperation.
Enable the use of electronic means of communication in cross-border cases
between individuals and legal entities, and courts and competent authorities,
except in cases covered by the Service of documents regulations3.
Facilitate the participation of parties to cross-border civil and criminal
proceedings in oral hearings through videoconference or other distance
communication technology, for purposes other than the taking of evidence in
civil and commercial cases4.
Ensure that documents are not refused or denied legal effect solely on the
grounds of their electronic form (without interfering with the courts’ powers to
decide on their validity, admissibility and probative value as evidence under
national law).
Ensure the validity and acceptance of electronic signatures and seals in the
context of electronic communication in cross-border judicial cooperation and
access to justice.
• Consistency with existing policy provisions in the policy area
In December 2020, the Commission adopted a Communication on the digitalisation of justice
in the EU5, proposing a toolbox approach. This approach includes a set of measures to bring
forward digitalisation at both the national and EU level. The Communication also addresses
modernising the legislative framework for EU cross-border procedures in civil, commercial
and criminal law, in line with the ‘digital by default’ principle6, while ensuring all necessary
3
Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on
the service in the Member States of judicial and extrajudicial documents in civil or commercial matters
(service of documents) (recast) (OJ L 405, 2.12.2020, p. 40–78) and Regulation (EC) No 1393/2007 of
the European Parliament and of the Council of 13 November 2007 on the service in the Member States
of judicial and extrajudicial documents in civil or commercial matters (service of documents) (OJ L
324, 10.12.2007, p. 79–120).
4
Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on
cooperation between the courts of the Member States in the taking of evidence in civil or commercial
matters (taking of evidence) (recast) (OJ L 405, 2.12.2020, p. 1–39).
5
COM/2020/710 final.
6
In the context of this proposal for a Regulation, the “digital by default” principle should be understood
as a way to improve the efficiency and resilience of communication, reduce costs and administrative
burden, by making the digital channel of communication the preferred one to be used.
EN 2 EN
safeguards (for example, specifically acknowledging the need to avoid social exclusion). This
proposal was announced by the Commission and included in its work programme for 2021 7
(see ‘digital judicial cooperation’ package).
Together with the December 2020 Communication, the Commission adopted a legislative
proposal for a Regulation of the European Parliament and of the Council on a computerised
system for communication in cross-border civil, commercial and criminal proceedings (e-
CODEX system)8. The proposal aims to establish a legal basis for the e-CODEX system and
guarantee its sustainability and future management by entrusting it to the European Union
Agency for the Operational Management of Large Scale IT Systems in the Area of Freedom,
Security and Justice (eu-LISA). The e-CODEX system is a suite of software components for
EU judicial cooperation, developed by a consortium of Member States and financed by the
Commission. It supports the communication in civil and criminal proceedings by enabling the
secure and interoperable cross-border exchange of electronic messages and documents. The e-
CODEX system would therefore be the most suitable tool for the digitalisation of cross-
border judicial cooperation procedures.
In November 2020, the European Parliament and the Council adopted recasts of the Service of
Documents Regulation and the Taking of Evidence Regulation. These require Member States’
competent authorities to communicate with each other through a decentralised IT system (e.g.
to exchange standardised forms, documents, etc.), which is composed of national IT systems
interconnected via an interoperable solution (such as e-CODEX). The two Regulations
establish for the first time a comprehensive legal framework for electronic communication
between competent authorities in cross-border judicial procedure. An identical approach for
communication between competent authorities is taken under the current proposal, while the
Service of documents and Taking of evidence Regulations (recasts) are left out of the scope of
this proposal.
The work on the two Regulations was closely linked with the Commission’s overall priority
of digitalisation and e-Justice and its simultaneous work in criminal justice. Following the
Commission’s proposals of 2018, the European Parliament and the Council (the co-
legislators) are negotiating a legislative framework on cross-border access to e-evidence. In
this context, the Commission’s proposals9 already highlight the importance of electronic
platforms, e.g. for the submission of requests, the authentication of orders and responses by
service providers. The exchange of e-evidence will take place via an identical decentralised IT
system as the one envisaged under this proposal or the e-evidence proposal will refer directly
to this proposal.
• Consistency with other Union policies
On 9 June 2020, the Council adopted conclusions on “Shaping Europe’s digital future”10,
where it recognises that ‘the digitalisation of the justice systems of the Member States has the
potential to facilitate and improve access to justice throughout the EU.’ The Council calls on
the Commission “to facilitate the digital cross-border exchanges between the Member States
7
COM/2020/690 final.
8
COM/2020/712 final.
9
COM/2018/225 final - 2018/0108 (COD).
10
Council conclusions on shaping Europe’s digital future 2020/C 202 I/01 (OJ C 202I, 16.6.2020, p. 1–
12).
EN 3 EN
both in criminal and civil matters and to ensure the sustainability and ongoing development
of the technical solutions which have been developed for cross border exchanges.”
The October 2020 Council conclusions on “Access to justice – seizing the opportunities of
digitalisation”11 call on the Commission to take concrete action to digitalise justice, including
by:
examining the potential for modernising the core provisions of instruments in
civil and commercial matters in line with the ‘digital by default’ principle; and
considering to which judicial cooperation instruments in criminal matters the
e-Evidence Digital Exchange System (eEDES)12 might be extended.
The December 2020 Council conclusions on “The European arrest warrant and extradition
procedures – current challenges and the way forward”13 underline that digitalisation should
play a central role in the operation of the European arrest warrant (EAW).
This initiative is consistent and creates direct links with the e-IDAS Regulation14, as it
introduces provisions on the use of trust services to the electronic communication between
judicial and other competent authorities, as well as between these authorities, individuals and
legal entities. Concretely, the proposal seeks to remove any doubts with respect to the legal
validity of electronic documents exchanged in these contexts, and creates a common regime
on the use and recognition of electronic signatures and seals in cross-border judicial
procedures.
At the beginning of June 2021, the Commission adopted a proposal amending the e-IDAS
Regulation to establish a framework for a European digital identity15. The proposal addresses
the increased private and public sector demand for electronic identity solutions that rely on
specific attributes and ensure a high level of trust across the EU. The proposed digital identity
wallet storing attributes and credentials will allow individuals and legal entities to access
public services, including digital public services allowing individuals and legal entities to
engage in cross-border judicial proceedings. In the context of EU cross-border judicial
cooperation and the communication of natural persons with the competent authorities in
cross-border cases, the Commission’s proposal on a framework for a European Digital
Identity should be taken into account in view of the future requirements the proposal sets out
with respect to electronic identification. While the present Regulation does not address
identification requirements insofar as access to national IT portals operated by the Member
States or requirements with regard to the remote electronic identification of the parties in a
videoconference may be concerned, Member States should take into account the requirements
for the application of the European Digital Identity Wallet.
11
Council conclusions ‘Access to justice – seizing the opportunities of digitalisation’ 2020/C 342 I/01 (OJ
C 342I, 14.10.2020, p. 1–7).
12
Implemented further to the ‘Council conclusions on improving criminal justice in cyberspace’ of 9 June
2016.
13
Council conclusions ‘The European arrest warrant and extradition procedures – current challenges and
the way forward’ 2020/C 419/09 (OJ C 419, 4.12.2020, p. 23–30).
14
Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on
electronic identification and trust services for electronic transactions in the internal market and
repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73–114).
15
COM/2021/281 final.
EN 4 EN
Given the highly sensitive nature of the information exchanged, it is essential that the
implementation of the toolbox approach on the digitalisation of justice, including through this
proposal, takes place in a way that guarantees strong cybersecurity standards. This is
consistent with the approach outlined in the EU's Cybersecurity Strategy16 and the
Commission’s proposal for a Directive on measures for a high common level of cybersecurity
across the Union (NIS2)17, aiming to improve further the cybersecurity capacities of public
and private entities, competent authorities and the Union as a whole in the field of
cybersecurity and critical infrastructure protection. While judiciary in Member States is not in
the scope of NIS2 proposal it is of essence that Member States will put in place national
measures that would ensure a comparable level of cybersecurity.
Training justice professionals on EU law is an essential tool to ensure its correct and effective
application. To prepare justice professionals, make them fit for the challenges of the 21st
century, and keep them updated on developments in EU law, the Commission adopted a
European judicial training strategy for 2021-202418. The strategy addresses training justice
professionals on the use of the digital tools set by the regulatory framework in their daily
work. Following the adoption of this proposal, in line with the strategy, timely training of all
justice professionals would need to be organised to ensure correct and seamless application
and use of new digital tools.
2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY
• Legal basis
The use of digital channels for communication in cross-border judicial proceedings would
facilitate judicial cooperation in civil, commercial and criminal matters. Therefore, the legal
basis for this initiative are Articles 81(1) and 82 (2) of the Treaty on the Functioning of the
European Union (TFEU)19.
The use of digital channels for communication would facilitate judicial cooperation and the
effective access to justice in civil matters in line with Article 81(2) TFEU.
Article 82(1) TFEU is the legal basis for the Union to facilitate the cooperation between
Member States’ judicial or other competent authorities in criminal proceedings and in the
enforcement of decisions.
• Subsidiarity (for non-exclusive competence)
Under Article 4(2)(j) of the TFEU, the competence to adopt measures in the area of freedom,
security and justice is shared between the EU and its Member States. Therefore, Member
States may act alone to govern the use of digital communication channels in the context of
judicial cooperation and access to justice to the extent that the EU has not exercised its
competence. However, without EU action, progress can be expected to be very slow and, even
where Member States take action it is very difficult to ensure interoperability of the
communication channels without coordination and intervention at the EU level. Moreover, the
16
JOIN/2020/18 final
17
COM/2020/823 final
18
COM/2020/713 final
19
Consolidated version of the Treaty on the Functioning of the European Union (OJ C 326, 26.10.2012, p.
47–390).
EN 5 EN
envisaged digitalisation measures are strictly linked to existing EU legal instruments in the
area of cross-border judicial cooperation and cannot be achieved by Member States acting
alone. Therefore, the objectives of this proposal cannot be fully achieved by Member State
acting alone, but only at EU level.
There are already certain EU rules governing the conduct of communication, some of which
even provide for the use of modern technology. However, the existing rules do not ensure an
adequate and holistic infrastructure for electronic communication between individuals, legal
entities or competent authorities with the authorities of another Member State.
EU action is needed to coordinate Member States’ efforts and establish a coherent framework
for the existing EU rules. This will improve the efficiency, resilience, security and speed of
cross-border judicial procedures, and will simplify and speed up communication between
Member States’ authorities and with individuals and legal entities. Therefore, the
administration of justice-related cases with cross-border implications will improve.
Further benefits arise from driving forward the digitalisation of EU judicial cooperation and
bringing on board all Member States, as this will improve the current situation, where only
certain groups of Member States have taken action, resulting in a limited and fragmented
response to the identified problems.
• Proportionality
Adoption of uniform measures for electronic communication in cross-border judicial
cooperation and access to justice at EU level is a proportionate way of establishing a coherent
framework for the existing EU rules. Overall compliance with the principle of proportionality
would be guaranteed as the proposal will propose only measures that are necessary to ensure
the use of digital technology in the context of judicial cooperation and access to justice in
cross-border cases. The proposed actions will not burden Member States beyond what is
needed to achieve the proposal’s objectives. This is explained in more detail in the impact
assessment accompanying the proposal (see Section 8 thereof)20. These objectives can be
achieved only through rules requiring mandatory use of digital communication between the
courts and competent authorities of the Member States, and obliging them to accept electronic
communication from natural and legal persons, allowing videoconferencing and recognising
trust services.
• Choice of the instrument
The proposal is a Regulation, which would provide a new standalone legal basis for the
digitalisation of the EU judicial cooperation instruments. The aim is to have common rules
applying to all EU judicial cooperation instruments in one single, binding act.
The Regulation will directly apply in all Member States and be binding. It therefore
guarantees that the rules will apply and enter into force across the EU at the same time. It
offers legal certainty by avoiding divergent interpretations in the Member States, therefore
preventing legal fragmentation.
20
SWD(2021) 392
EN 6 EN
Since this initiative requires the alignment of conflicting civil, commercial and criminal
matters rules with this Regulation, amendments in existing legal acts need to be adopted.
While certain legal acts are Regulations, others are Framework Decisions and Directives. It is
therefore appropriate to enact the amendments to the concerned Framework Decisions and
Directives in a separate legal instrument, which would ensure alignment with the cohesive set
of rules laid down in this Regulation. For this reason, a dedicated amending Directive should
be proposed together with this Regulation.
3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER
CONSULTATIONS AND IMPACT ASSESSMENTS
• Stakeholder consultations
For more than a decade, the Commission has been working on e-Justice policy in close
cooperation with various stakeholders. These stakeholders have been consulted on the
proposal’s objectives and on the identified policy options. Following the consultation strategy
for this proposal, a broad range of stakeholders were consulted. Consultations were carried
out in the Council Working Party on e-Justice (EJUSTICE), the Council Working Party on
Civil Law Matters (JUSTCIV), the Council Working Party on Judicial Cooperation in
Criminal Matters (COPEN), the European Judicial Network in Civil and Commercial Matters,
and the European Judicial Network in Criminal Matters.
In publishing the inception impact assessment and launching a public consultation, the
Commission reached out to a broad range of stakeholders, including Member States’ national
authorities, non-governmental organisations, professional associations, business organisations
and individuals.
The findings of the consultations show support for the proposals’ objectives. The stakeholders
favoured a compulsory use of the digital channel for communication against a voluntary use
in judicial cooperation. They also supported the possibility for the parties to cross-border
proceedings to take part in oral hearings through videoconferencing or other distance
communication technology. While most stakeholders favoured mandatory electronic
communication between individuals and legal entities and the courts and competent
authorities, it is appropriate to maintain the possibility to use the paper channel of
communication for individuals and legal entities. The main reason for keeping the electronic
communication voluntary is to guarantee access to justice of vulnerable people, minors and
people who need technical assistance or may not have access to digital means or the required
skills.
• Collection and use of expertise
The Commission engaged the services of a contractor to prepare a study to support the impact
assessment. The contractor carried out various stakeholder consultation activities specifically
designed for the purposes of the study, such as organising an EU level focus group, national
stakeholder consultation on the impacts of the policy options, carried out a national survey,
held one-to-one interviews, etc.
All data collected informed the preparation of the proposal, including the impact assessment.
EN 7 EN
In addition, the Commission used the considerable amount of existing data on the
digitalisation of justice in the EU. For instance from the EU Justice Scoreboard, the rule of
law report, data from the Council of Europe’s European Commission for the efficiency of
justice (CEPEJ) and the Digital Criminal Justice study21.
• Impact assessment22
This proposal is supported by an impact assessment presented in the accompanying staff
working document.
The Regulatory Scrutiny Board (RSB) discussed the draft impact assessment on
22 September 2021 and delivered its positive opinion on 27 September 2021. The RSB made
the following recommendations:
(1) The problem analysis should be strengthened to highlight the main problems this proposal
aims to address. The analysis should be backed by evidence on voluntary participation in
digitalisation, non-recognition of electronic documents, signatures or seals and
interoperability.
(2) The report should explain how this proposal will ensure coherence with other EU-level
instruments designed to improve digitalisation that could be used in cross-border judicial
cooperation. The report should also explain why Member States do not fully exploit the
existing possibilities for digitalisation.
(3) The impact analysis should be strengthened with a clear presentation of impacts,
particularly investment costs and stakeholders affected. It should acknowledge the
uncertainties in the assumptions made and the implications these have for the impacts
assessed.
(4) The report should assess the effects of a potential increase of cross-border cases. It should
discuss if there is a risk that improved access to justice and more efficient cross-border
judicial cooperation could lead to delays in the treatment of cases due to higher workload for
judges and the time legal proceedings take.
(5) The report should clarify the data protection issues at stake and acknowledge that moving
from a paper to a digital format entails other risks. The report should address potential
sensitivities linked to the fact that having more data in digital format may not only ease their
transmission, but also creates data protection and security issues. The concerns raised by
stakeholders about data protection should be considered.
The RSB has also sent additional recommendations with the quality checklist.
In addressing the RSB’s recommendations, the following changes were introduced to the
impact assessment:
(1) The problem definition has been reformulated so that it reflects the actual problems
analysed in Section 2.
21
https://data.europa.eu/doi/10.2838/118529
22
SWD(2021) 392
EN 8 EN
(2) The coherence with other initiatives, such as e-CODEX and e-IDAS has been explained,
as well as the links with the European e-Justice Portal23.
(3) Section 6 on the impacts of the baseline and the policy options has been restructured and
the main impacts (i.e. economic impacts, social impacts, impacts on fundamental rights) have
been outlined for each of the options. The section also addresses in what way the main
stakeholders will be affected by the proposal.
(4) Section 6 on the impacts clarified if there is a potential risk of an increased number of
cross-border cases and the capacity of the judiciary to absorb such a development.
(5) Clarifications on data protection have been added in Section 6.
In addition, the impact assessment was supplemented with the data available from the
supporting study and from Annex 7 of the report. The economic analysis and the costs for
Member States have been added to the report. The views of the stakeholders consulted have
been outlined in the corresponding sections of the report. The technical recommendations,
such as merging the outcome of the public consultation with Annex 2, numbering the pages of
the Annexes, deleting the Annex on the subsidiarity grid, have been addressed.
The impact assessment identified one non-legislative and one legislative policy option with
three sub-options. There were additional options that were discarded at an early stage. A
promotional campaign on using digital tools and e-CODEX system for communicating in
cross-border judicial procedures has been discarded because it was considered that such a
campaign would not to constitute a real alternative to regulatory action and could in any case
be carried out as part of the baseline scenario. The option of the electronic exchange of
information and data through a centralised EU system was not considered appropriate, as it
was difficult to justify from the point of view of proportionality and subsidiarity. In addition,
all information, data and documents would be stored in Commission infrastructure or
infrastructure of the entity managing the system (e.g. eu-LISA), while these would not be
party to cross-border exchanges. A centralised system would also constitute a single point of
failure, as all data would be stored in one place compared to a decentralised system where
data are stored by each Member State individually.
The baseline scenario against which the two main options were assessed did not envisage any
action to drive forward the digitalisation of cross-border judicial cooperation and the use of
digital tools to improve access to justice. Therefore, the use of electronic communication
between the authorities would remain voluntary. The use of electronic signatures/seals and
data protection responsibilities would continue to be fragmented. Therefore, the two options
considered in view of the outlined objectives of the proposal were adoption of a Commission
recommendation (non-legislative option) or adoption of a legal act – a regulation (legislative
option).
The legislative option would require a package of a Regulation with horizontal provisions and
amendments to existing Regulations to ensure consistency and a Directive with amendments
to existing Directives and Framework Decisions.
23
The main IT tool that has been so far developed at the EU level, as a one-stop shop for access to
information and services in the area of justice.
EN 9 EN
The non-legislative option would involve action to encourage Member States to use the
e-CODEX system for digital cross-border communication and access to justice. A
Commission recommendation could encourage Member States to follow a harmonised
approach to the use of electronic communications, including videoconferencing, electronic
documents, electronic seals and signatures. Given the voluntary nature of this approach,
Member States would be free to develop their own digital tools. Such action could be
technically and operationally feasible. Cost-effectiveness would depend on the individual
Member State approach to digitalisation and on their needs and resources. However, on the
extent to which the option fulfils the objectives of the proposal, a recommendation would not
guarantee the actual implementation of digital tools for communication, the interoperability of
the digital channel, the acceptance of electronic documents, or common standards on the use
and recognition of trust services.
Under the legislative option, legislative measures (a Regulation and a Directive) will be
adopted. A regulation will include rules establishing a secure electronic channel based on
e-CODEX (identified as the most appropriate technical solution in the impact assessment on
the Commission’s proposal for a Regulation on e-CODEX). This channel, constituting a
decentralised IT system, will be used for communication and exchange of information, data
and documents between courts and competent authorities, and where relevant with JHA
agencies and EU bodies. Rules will be introduced in support of communication between
individuals and legal entities, and Member States’ courts and competent authorities, including
rules on the use of videoconference or other distance communication technology. The
responsibilities of the data controllers and data processors will be outlined. This option is
based on the assumption that the IT systems for exchanges of European Investigation Orders
(EIOs) and the service of documents/taking of evidence, as developed by the Commission,
will be extended to all cross-border judicial communication regulated in the EU judicial
cooperation instruments. Member States will be able to connect their national IT system to a
decentralised network or use the software solution developed by the Commission and
provided free of charge. This will allow direct communication between the courts and/or
competent authorities participating in the proceedings under the EU instruments in cross-
border judicial cooperation in civil, commercial or criminal matters. Three sub-options were
considered under the legislative option, namely a) compulsory or voluntary use of the digital
channel, b) compulsory or voluntary acceptance of electronic communication regarding
natural and legal persons, and c) regulatory or non-regulatory approach to the use and
recognition of trust services. A Directive will amend the existing Framework Decisions and
Directives to align them with the rules of the Regulation.
After comparing the policy options and the sub-options, and assessing them against the
objectives of the proposal, the preferred option chosen is the legislative option. This option
will make using digital communication compulsory (subject to justified exceptions) for
communication between courts and competent authorities (and between them and the EU JHA
agencies and bodies). It will also oblige courts and competent authorities to accept electronic
communication from natural and legal persons, provide a legal basis for the use of
videoconferencing or other distance communication technology for oral hearings in cross-
border cases, and the use and recognition of trust services.
While the courts and competent authorities will be required to accept electronic
communication from natural and legal persons, the use of the digital channel will be voluntary
for the natural and legal persons. They will be free to use traditional means of communication,
including a paper based one if they wish.
EN 10 EN
The use of the digital channel can be expected to have a positive environmental impact, due to
the use of less paper and postage. These environmental impacts relate mainly to the adoption
of electronic means of communication and a likely increase in the use of videoconferencing
and distance communication instead of in-person hearings. While it could be presumed that
the production and operation of equipment will consume energy, the overall impact on the
environment will be positive.
On economic impact, the obligation to set up a digital channel would require new investment
from Member States to develop the necessary infrastructure to interact with e-CODEX. The
scale of the investment would depend on their current degree of digitalisation, their level of
involvement in the e-CODEX project, the compatibility with current solutions and the scope
for electronic transmissions under national law. However, in the long run, the digitalisation of
justice would significantly reduce the costs incurred by national justice systems in cross-
border procedures. It would also positively influence the process of digitalisation at national
level.
Introducing digital means for improving access to justice for cross-border cases in civil,
commercial and criminal matters will affect individuals and businesses, including the SMEs.
The possibility to file claims and to digitally communicate with the courts and competent
authorities, as well as the possibility to participate in oral hearings through videoconference or
other distance communication technology will facilitate access to justice in cross-border
procedures. This is because individuals will have more flexibility to seize courts and to
participate in hearings taking place in another Member State. Businesses, including SMEs,
will also benefit from an improved access to justice and more efficient protection of their
rights, which is expected to have a beneficial effect on and boost cross-border trade.
Lower costs for proceedings will have an indirect effect by improving the competitiveness of
the businesses, including SMEs. The average overall yearly saving at EU level is estimated at
EUR 23 372 900 in postage costs and EUR 2 216 160 in paper costs amounting to a total of
EUR 25 589 060. Natural and legal persons will be saving EUR 4 098 600 in postage costs
and EUR 388 800 in paper costs.
Reducing the time for communication will lead to natural and legal persons gaining 2 700 000
days per year in average posting time at EU level. The average posting time will be reduced to
zero resulting in an overall yearly reduction of the duration of the procedures by 15 389 999
days. There would be no additional costs for natural and legal persons and for the SMEs for
using the digital channel of communication in a specific legal procedure. All that would be
needed is a computer and internet connection. Digitalising the communication between courts
and competent authorities will alleviate the administrative burden. The impact assessment
concluded that 874 person-years will be gained in processing effort at court/competent
authority level.
• Regulatory fitness and simplification
This proposal aims at introducing modern digital technology in access to justice and judicial
cooperation in cross-border civil, commercial and criminal cases. The expected result is
quicker, cheaper, more secure and reliable communication between the competent authorities
and with natural and legal persons.
All natural and legal persons will have the option to digitally communicate with the courts
and the competent authorities and to take part in oral hearings though a videoconference or
other distance communication technology. Paper-based communication will be maintained for
the natural and legal persons. There are no specific costs that are envisaged for businesses to
EN 11 EN
use digital communication – they simply need to possess a computer and to have access to the
internet. Businesses will benefit from improved access to justice and more efficient protection
of their rights, which is expected to boost cross-border trade. Similarly, SMEs involved in
cross-border transactions are expected to benefit directly from the improved access to justice,
as well as from lower costs and shorter proceedings when enforcing their rights across
borders. This could also drive SMEs to engage more in cross-border transactions within EU.
The lower costs of proceedings will have an indirect effect by improving the competitiveness
of the SMEs.
The possibility for citizens to file claims and to digitally communicate with the courts and
competent authorities, as well as the possibility to participate in oral hearings through
videoconference or other distance communication technology will ensure improved access to
justice in cross-border procedures, once they are digitalised. Such digital tools will not require
significant costs or investments on the part of the citizens. What would be needed is a
computer and access to the internet. To ensure that citizens who lack digital skills, who live in
remote areas or whose personal capacity does not allow them a seamless access to the digital
tools, the possibility for paper-based communication will be maintained.
• Fundamental rights
Making use of the digital channel of communication between Member States’ courts and
competent authorities will help to overcome delays, reduce the administrative burden and
facilitate and accelerate the exchange of information between these authorities. As a result,
the overall time for processing cases will be reduced, as well as the costs for the proceedings.
The possibility for individuals and legal entities to file claims and to digitally communicate
with the courts and competent authorities, as well as the possibility to participate in oral
hearings through videoconferencing or other distance communication technology will ensure
improved access to justice in cross-border procedures, once they are digitalised. To respect
the needs of disadvantaged groups and vulnerable people, the paper-based communication
will be maintained as an option.
THE PROPOSAL WILL ESTABLISH A DECENTRALISED IT SYSTEM FOR THE EXCHANGE
BETWEEN THE COURTS AND THE COMPETENT AUTHORITIES AND BETWEEN THESE
ENTITIES AND NATURAL OR LEGAL PERSONS. THE DECENTRALISED NATURE OF THE
SYSTEM MEANS THAT THERE WILL BE NO DATA STORAGE OR DATA PROCESSING BY
THE ENTITY ENTRUSTED WITH THE OPERATIONAL MANAGEMENT OF THE SYSTEM’S
COMPONENTS. DEPENDING ON WHETHER AN ACCESS POINT TO THE SYSTEM IS
OPERATED BY AN EU INSTITUTION, AGENCY OR BODY, OR AT NATIONAL LEVEL,
AND DEPENDING ON WHICH NATIONAL AUTHORITIES ARE PROCESSING PERSONAL
DATA AND FOR WHAT PURPOSES, EITHER REGULATION (EU) 2018/172524, THE
24
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the
protection of natural persons with regard to the processing of personal data by the Union institutions,
bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No
45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39–98).
EN 12 EN
GENERAL DATA PROTECTION REGULATION25 OR DIRECTIVE (EU) 2016/68026 WILL
APPLY.4. BUDGETARY IMPLICATIONS
The implementation of the Regulation will require the establishment and maintenance of a
decentralised IT system. This system constitutes a network of national IT systems and
interoperable access points, operating under the individual responsibility and management of
each Member State, Union institution, agency or body, which enables secure and reliable
cross-border exchange of information. Where Member States have not already developed
appropriate national IT systems, the Commission will provide a reference implementation
software, which Member States may choose to use instead. The reference implementation
software will be built upon the eEDES and Service of Documents/Taking of Evidence IT
system(s). These electronic systems already follow a multifunctional approach and could be
built upon, thus avoiding unnecessary expenses.
The investment and running costs for these systems, including the modification to the
European e-Justice Portal to support interactions between natural and legal persons and courts
and competent authorities in cross-border proceedings, are presented in Annex 9 of the impact
assessment27.
The Digital Europe programme28 is the most appropriate funding instrument that could
support the development and maintenance of the decentralised IT system and the
establishment of a European electronic access point on the European e-Justice Portal. Under
the overall objectives of supporting the digital transformation of areas of public interest, the
initiative directly addresses the objectives of the programme to enable seamless and secure
cross-border electronic communication within the judiciary and between the judiciary and
other competent bodies in the area of civil and criminal justice, and to foster access to justice.
The costs for the Member States will be rather limited: a total of EUR 8 100 000 per year i.e.
EUR 300 000 per year per Member State. In the first two years, the cost of installation will be
EUR 100 000 per year per Member State. This includes equipment costs and the human
resources needed to configure it. The remaining EUR 200 000 are needed to provide support
to an increasing number of users. As of the third year, there are no hardware and installation
costs, only costs related to user support and maintenance of the system. This is estimated at
EUR 300 000 per year. The e-CODEX system is an open-source solution that could be used
free of charge. While Member States are expected to bear these costs from their national
budgets, they can nonetheless apply for EU financial support under the relevant financing
programmes, such as the Justice programme and the cohesion policy instruments. It should
25
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free movement of
such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016,
p. 1–88).
26
Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data by competent authorities for
the purposes of the prevention, investigation, detection or prosecution of criminal offences or the
execution of criminal penalties, and on the free movement of such data, and repealing Council
Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89–131).
27
SWD(2021) 392
28
Regulation (EU) 2021/694 of the European Parliament and of the Council of 29 April 2021
establishing the Digital Europe Programme and repealing Decision (EU) 2015/2240 (OJ L 166,
11.5.2021, p. 1–34).
EN 13 EN
also be highlighted that some Member States already operate a pilot version of e-CODEX,
which they may reuse and build upon for the newly defined purposes.
Courts and competent authorities, which are not equipped with videoconferencing equipment,
will have to invest in buying such equipment, if they are planning to use the possibility to
organise remote hearings.
5. OTHER ELEMENTS
• Implementation plans and monitoring, evaluation and reporting arrangements
For the purposes of this Regulation, the decentralised IT system will be developed further
through implementing acts adopted by the Commission. The implementing acts will set out
the:
technical specifications defining the methods of communication by electronic means
for the purposes of the decentralised IT system;
technical specifications for communication protocols;
information security objectives and relevant technical measures ensuring minimum
information security standards and a high level of cybersecurity for the processing
and communication of information within the decentralised IT system;
minimum availability objectives and possible related technical requirements for the
services provided by the decentralised IT system.
A European electronic access point will be established on the European e-Justice Portal, by
modifying the already developed e-CODEX solution for filing small claims.
A system for monitoring the proposed legal instrument is envisaged, including a
comprehensive set of qualitative and quantitative indicators, and a clear, structured reporting
process. The purpose of the monitoring arrangements is to determine whether the instrument
is implemented efficiently in the Member States and whether it is successful in achieving its
specific objectives.
A full evaluation every five years is provided for assessing impacts and contextual issues.
Where electronic communication is used, monitoring will be facilitated by automatically
compiling data and using the reporting features of the decentralised IT system. For data that is
not collected automatically, a monitoring sample of at least one court or competent authority
to be designated by each Member State will be put in place.• Detailed explanation of
the specific provisions of the proposal
Article 1 defines the subject matter and the scope of the Regulation. The Regulation sets the
legal framework for electronic communication in the context of the cross-border judicial
cooperation procedures in civil, commercial and criminal matters and access to justice in civil
and commercial matters with cross-border implications as regulated in the EU acts on judicial
cooperation in civil, commercial and criminal matters. These legal acts are listed in the two
Annexes to the Regulation, Annex I of which comprises legal acts in civil and commercial
matters and Annex II - legal acts in criminal matters.
The Regulation also lays down rules on the use and recognition of electronic trust services, on
the legal effects of electronic documents, on the use of videoconferencing or other distance
communication technology for hearing of persons in civil, commercial and criminal matters.
However, the regulation does not apply for the purposes of taking of evidence in civil and
commercial matters, which is governed in a separate legal act and where similar digitalisation
EN 14 EN
provisions already exist. The Regulation does not lay down new procedures and applies only
to electronic communication in the context of cross-border judicial cooperation procedures
and access to justice in civil, commercial and criminal matters.
Article 2 defines the terms used in the Regulation.
Article 3 lays down that the electronic communication between courts and competent
authorities is carried out through a secure and reliable decentralised IT system. This system
consists of IT systems and interoperable access points, operating under the individual
responsibility and management of each member State, JHA agencies and EU bodies, and
enables interoperable cross-border exchange between the respective authorities of the
Member States. The use of the system is compulsory, except in case of disruption of the
system or in other specific circumstances.
Article 4 establishes the European electronic access point, located on the European e-Justice
Portal. This European electronics access point is part of the 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 with cross-border implications.
Article 5 requires 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. It
provides for some of the digital communication channels, notably the European electronic
access point and existing national IT portals, where developed by the Member States for the
purposes of participating in judicial procedures.
Article 6 requires competent authorities to accept electronic communication from natural and
legal persons, making electronic submissions equivalent to the paper ones.
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. It refers to the national law of the Member State
conducting the videoconference. Additional rules are set out on hearing children through
videoconferencing or other distance communication technology.
Article 8 provides the legal basis and sets out the conditions for using videoconferencing or
other distance communication technology in criminal matters. Additional rules are set out on
hearing a suspect, an accused or a convicted person and on hearing children through
videoconferencing or other distance communication technology.
Article 9 sets out the rules on using trust services (electronic signatures and seals) in
electronic communication governed by the Regulation, by referring to the e-IDAS Regulation.
Article 10 requires that electronic documents are not denied legal effects solely on the ground
that they are in electronic form.
Article 11 provides the legal basis for electronic payment of fees, including through the
European e-Justice Portal.
Article 12 lays down a framework for the Commission to adopt implementing acts.
EN 15 EN
Article 13 mandates the Commission to create, maintain and develop reference
implementation software.
Article 14 sets out who bears the cost for the various IT development tasks.
Article 15 lays down rules on the protection of personal data exchanged through digital
means.
Articles 16 – 18 set out procedural rules, such as the rules applicable to the Committee
procedure, the legal basis for the Commission to collect and use data for evaluating the
effectiveness of the Regulation.
Articles 19-22 introduce amendments to the Regulations in civil and commercial matters,
listed in Annex I to include reference to the digital means of communication as established by
the Regulation and to avoid ambiguities as to the communication means to be used under the
existing legal acts.
Articles 23 introduces amendments to one Regulation in criminal matters to include reference
to the digital means of communication as established by the Regulation and to avoid
ambiguities as to the communication means to be used under the existing legal acts.
Article 24 sets out the transitional period.
Article 25 provides that the Regulation would enter into force on the twentieth day following
that of its publication in the Official Journal of the European Union. It also sets the date on
which the Regulation will start to apply.
EN 16 EN
2021/0394 (COD)
Proposal for a
REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL
on the 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 EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 81(2)(e) and (f), and Article 82(1)(d) thereof,
Having regard to the proposal from the European Commission,
After transmission of the draft legislative act to the national parliaments,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1) In its 2 December 2020 Communication on the digitalisation of justice in the EU 1 the
Commission identified the need to modernise the legislative framework of the Union’s
cross-border procedures in civil, commercial and criminal law, in line with the “digital
by default” principle, while ensuring all necessary safeguards to avoid social
exclusion.
(2) Facilitating access to justice for natural and legal persons, and facilitating judicial
cooperation between the Member States are among the main objectives of the area of
freedom, security and justice enshrined in Title V of Part Three of the Treaty on the
Functioning of the European Union.
(3) For the purposes of enhancing judicial cooperation and access to justice, legal acts of
the Union providing for communication between competent authorities, including
Union agencies and bodies, and between competent authorities and natural and legal
persons, should be complemented by conditions for conducting such communication
through digital means.
(4) This Regulation seeks to improve the effectiveness and speed of judicial procedures
and facilitate access to justice by digitalising the existing communication channels,
which should lead to cost and time savings, reduction of the administrative burden,
and improved resilience in force majeure circumstances for all authorities involved in
cross-border judicial cooperation. The use of digital channels of communication
between competent authorities should lead to reduced delays in processing of the
cases, which should benefit individuals and legal entities. This is also particularly
1
Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions. Digitalisation of justice in the
European Union. A toolbox of opportunities, COM(2020) 710 final
EN 17 EN
important in the area of cross-border criminal proceedings in the context of the
Union’s fight against crime. In this regard, the high level of security that digital
channels of communication can provide constitutes a step forward, also with respect to
safeguarding the rights of the persons concerned and protection of their privacy and
personal data.
(5) It is important that appropriate channels are developed to ensure that justice systems
can efficiently cooperate digitally. Therefore, it is essential to establish, at Union level,
an information technology instrument that allows swift, direct, interoperable, reliable
and secure cross-border electronic exchange of case related data among competent
authorities.
(6) There are tools which have been developed for the digital exchange of case related
data, without replacing or requiring costly modifications to the existing IT systems
already established in the Member States. The e-Justice Communication via On-line
Data Exchange (e-CODEX) system is the main tool of this type developed to date.
(7) Establishing digital channels for cross-border communication should contribute
directly to improving access to justice, by enabling natural and legal persons to seek
the protection of their rights and ascertain their claims, initiate proceedings, exchange
case related data in digital form with judicial or other competent authorities, in
procedures falling under the scope of Union law in the area of civil and commercial
matters.
(8) This Regulation should cover the digitalisation of written communication in cases with
cross-border implications falling under the scope of the Union legal acts in civil,
commercial and criminal matters. These acts should be listed in Annexes to this
Regulation. Written communication between competent authorities and Union
agencies and bodies, such as Eurojust, where provided for by the legal acts listed in
the Annex II, should also be covered by this Regulation. At the same time, whether a
case is to be considered a matter with cross-border implications, should be determined
under the legal acts listed in Annex I and Annex II to this Regulation. Where the
instruments listed in Annex I and Annex II to this Regulation explicitly state that
national law should govern a communication procedure between competent
authorities, this Regulation should not apply.
(9) This Regulation should not apply to service of documents pursuant to Regulation (EU)
2020/1784 of the European Parliament and of the Council2 and Regulation (EC) No
1393/2007 of the European Parliament and of the Council 3, nor to the taking of
evidence pursuant to Regulation (EU) 2020/1783 of the European Parliament and of
2
Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on
the service in the Member States of judicial and extrajudicial documents in civil or commercial matters
(service of documents) (OJ L 405, 2.12.2020, p. 40).
3
Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007
on the service in the Member States of judicial and extrajudicial documents in civil or commercial
matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ L 324,
10.12.2007, p. 79).
EN 18 EN
the Council4 and Council Regulation (EC) No 1206/20015, which already prescribe
their own rules on digitalisation of judicial cooperation.
(10) In order to ensure secure, swift, interoperable, confidential and reliable
communication between Member States for the purposes of cross-border judicial
procedures in civil, commercial and criminal matters, any appropriate modern
communications technology should be used, provided that certain conditions as to the
integrity and reliability of the document received and the identification of the
participants in the communication are met. Therefore, a secure and reliable
decentralised IT system should be used. Accordingly, it is necessary to establish such
an IT system for data exchanges in cross-border judicial procedures. The decentralised
nature of that IT system would enable secure data exchanges exclusively between one
Member State and another, without any of the Union institutions being involved in the
substance of those exchanges.
(11) The decentralised IT system should be comprised of the back-end systems of Member
States and the Union agencies and bodies, and interoperable access points, through
which they are interconnected. The access points of the decentralised IT system should
be based on e-CODEX.
(12) For the purposes of this Regulation, Member States should be able to use instead of a
national IT system, a Commission-developed software (reference implementation
software). The Commission should be responsible for the creation, maintenance and
development of this reference implementation software in accordance with the
principles of data protection by design and by default. The Commission should design,
develop and maintain the reference implementation software in compliance with the
data protection requirements and principles laid down in Regulation (EU) 2018/1725
of the European Parliament and of the Council6 and Regulation (EU) 2016/679 of the
European Parliament and of the Council7, in particular the principles of data protection
by design and by default as well as high level of cybersecurity. The reference
implementation software should also include appropriate technical measures and
enable the organisational measures necessary for ensuring a level of security and
interoperability which is appropriate for the exchange of information in the context of
cross-border judicial procedures.
(13) In order to provide swift, secure and efficient assistance to applicants, written
communication between competent authorities, such as courts and Central Authorities
4
Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on
cooperation between the courts of the Member States in the taking of evidence in civil or commercial
matters (taking of evidence) (recast) (OJ L 405, 2.12.2020, p. 1).
5
Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the
Member States in the taking of evidence in civil or commercial matters (OJ L 174, 27.6.2001, p. 1).
6
Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the
protection of natural persons with regard to the processing of personal data by the Union institutions,
bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No
45/2001 and Decision No 1247/2002/EC (OJ L 295, 21.11.2018, p. 39).
7
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free movement of
such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016,
p. 1).
EN 19 EN
established under Council Regulation (EC) 4/20098 and Council Regulation (EU)
2019/11119, should, as a rule, be carried out through the decentralised IT system. In
exceptional cases, other means of communication may be used if those are found to be
more appropriate for the purposes of ensuring flexibility. However, the decentralised
IT system should always be considered the most appropriate means for exchanging
forms between competent authorities established by the legal acts listed in Annex I
and Annex II to this Regulation.
(14) Transmission through the decentralised IT system could be impossible due to a
disruption of the system or where the nature of what has to be transmitted makes
transmission by digital means impracticable, such as the transmission of
physical/material evidence. Where the decentralised IT system is not used,
communication should be carried out by the most appropriate alternative means. Such
alternative means should entail, inter alia, transmission being performed as swiftly as
possible and in a secure manner by other secure electronic means or by postal service.
(15) For the purposes of ensuring the flexibility of judicial cooperation in certain cross-
border judicial procedures, other means of communication could be more appropriate.
In particular, this may be appropriate for direct communication between courts under
Regulation (EU) 2019/1111 and Regulation (EU) 2015/848 of the European
Parliament and the Council10, as well as direct communication between competent
authorities under the Union legal acts in criminal matters. In such cases, less formal
communication means, such as e-mail, could be used.
(16) In relation to the components of the decentralised IT system, which are under the
responsibility of the Union, the entity managing the system’s components should have
sufficient resources in order to ensure their proper functioning.
(17) For the purpose of facilitating access of natural and legal persons to the competent
authorities, this Regulation should establish an access point at Union level (European
electronic access point), as part of the decentralised IT system through which natural
and legal persons should be able to file claims, launch requests, send and receive
procedurally relevant information and communicate with the competent authorities,
for cases covered by this Regulation. The European electronic access point should be
hosted on the European e-Justice Portal, which serves as a one-stop-shop for judicial
information and services in the Union.
(18) Member States should be responsible for the establishment, maintenance and
development of national electronic portals (national IT portals) for the purposes of
electronic communication between natural and legal persons and the respective
authorities which are competent in the proceedings under the legal acts listed in Annex
I.
8
Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition
and enforcement of decisions and cooperation in matters relating to maintenance obligations (OJ L 7,
10.1.2009, p. 1–79)
9
Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement
of decisions in matrimonial matters and the matters of parental responsibility, and on international child
abduction (OJ L 178, 2.7.2019, p. 1).
10
Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on
insolvency proceedings (OJ L 141, 5.6.2015, p. 19).
EN 20 EN
(19) In the context of the communication in cross-border cases of natural and legal persons
with competent authorities, electronic communication should be used as an alternative
to the existing means of communication. Notwithstanding, to ensure that access to
justice through digital means does not contribute to further widening of the digital
divide, the choice of the means of communication between electronic communication,
as provided by this Regulation, and other means of communication should be left to
the discretion of the individuals concerned. This is particularly important in order to
cater for the specific circumstances of disadvantaged groups and people in situation of
vulnerability, such as children or older people, who may lack the requisite technical
means or digital skills to access digital services.
(20) In order to enhance electronic cross-border communication and transmission of
documents through the decentralised IT system, the European electronic access point
and national IT portals, where available, those documents should not be denied legal
effect and should not be considered inadmissible in the proceedings solely on the
grounds that they are in electronic form. However, that principle should be without
prejudice to the assessment of the legal effects or the admissibility of those documents,
which may constitute evidence in accordance with national law. It should also be
without prejudice to national law regarding the conversion of documents.
(21) In order to facilitate oral hearings in proceedings in civil, commercial and criminal
matters with cross-border implications, this Regulation should provide for the optional
use of videoconferencing or other distance communication technology for the
participation of the parties in such hearings. The procedure for applying and
conducting of hearings through videoconferencing or other distance communication
technology should be governed by the law of the Member State conducting the
videoconference. Conducting a hearing by videoconferencing or other distance
communication technology should not be refused solely based on the non-existence of
national rules governing the use of distance communication technology. In such cases
the most appropriate rules available under the national law, such as rules for taking of
evidence, should apply mutatis mutandis.
(22) This Regulation should not apply to the use of videoconferencing or other distance
communication technology in civil, commercial and criminal proceedings where such
use is already foreseen in the legal acts, listed in Annex I and Annex II.
(23) The Regulation (EU) No 910/2014 of the European Parliament and of the Council11
sets up a common Union regulatory framework for recognition of electronic
identification means and electronic trust services (electronic signatures, electronic
seals, time stamps, electronic delivery services and website authentication) that are
recognised across borders as having the same legal status as their physical equivalents.
Therefore, this Regulation should apply the e-IDAS trust services for the purposes of
digital communication.
(24) For the purposes of facilitating payment of fees in cases with cross-border implications
falling under the scope of the Union legal acts in civil and commercial matters,
electronic payment of fees should be possible in an online environment by payment
11
Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on
electronic identification and trust services for electronic transactions in the internal market and
repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73–114).
EN 21 EN
methods widely available throughout the Union, such as credit cards, debit cards, e-
wallet and bank transfers.
(25) It is necessary, for the purposes of ensuring the full attainment of the objectives of this
Regulation and for the alignment of the existing Union legal acts in civil, commercial
and criminal matters with this Regulation, that amendments are introduced in the
following legal acts: Regulation (EC) No 1896/2006 of the European Parliament and
of the Council12, Regulation (EC) No 861/2007 of the European Parliament and of the
Council13, Regulation (EU) No 655/2014 of the European Parliament and of the
Council14, Regulation (EU) 2015/848 and Regulation (EU) 2018/1805 of the European
Parliament and of the Council15. Those amendments seek to ensure that
communication takes place in accordance with the rules and principles set out in this
regulation. Amendments to Directives and Framework Decisions in civil, commercial
and criminal matters are enacted in a Directive of the European Parliament and the
Council …/… [Amending Directive].
(26) In accordance with paragraphs 22 and 23 of the Interinstitutional Agreement of
13April 2016 on Better Law-Making16, the Commission should evaluate this
Regulation on the basis of the information collected through specific monitoring
arrangements for each of the legal acts, listed in Annexes I and II to this Regulation in
order to assess the actual effects of this Regulation and the need for any further action.
(27) The reference implementation software developed by the Commission as a back-end
system should programmatically collect the data necessary for monitoring purposes
and such data should be transmitted to the Commission. Where Member States choose
to use a national IT system instead of the reference implementation software
developed by the Commission, such a system may be equipped to programmatically
collect those data and, in that case, those data should be transmitted to the
Commission.
(28) In such cases where data cannot be collected automatically, and for the purpose of
alleviating the administrative burden of data collection, each Member State should
designate at least one court or competent authority for the purpose of establishing a
monitoring sample. The court or competent authority designated in this way should be
tasked with collecting and providing the Commission with data on its own proceedings
12
Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006
creating a European order for payment procedure (OJ L 399, 30.12.2006, p. 1).
13
Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007
establishing a European Small Claims Procedure (OJ L 199, 31.7.2007, p.1).
14
Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014
establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery
in civil and commercial matters (OJ L 189, 27.6.2014, p. 59).
15
Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on
the mutual recognition of freezing orders and confiscation orders (OJ L 303, 28.11.2018, p. 1).
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on amending Council
Directive 2003/8/EC, Council Framework Decisions 2002/465/JHA, 2002/584/JHA, 2003/577/JHA,
2005/214/JHA, 2006/783/JHA, 2008/909/JHA, 2008/947/JHA, 2009/829/JHA and 2009/948/JHA, and
Directive 2014/41/EU of the European Parliament and of the Council, as regards digitalisation of
judicial cooperation.
16
Interinstitutional Agreement between the European Parliament, the Council of the European Union and
the European Commission on Better Law-Making (OJ L 123, 12.5.2016, p. 1–14).
EN 22 EN
which should serve to provide an estimate on the level of a given Member State of the
data necessary for the evaluation of this Regulation. The designated court or
competent authority should be representative of the scope of the Regulation insofar as
the Regulation covers Union instruments in civil, commercial and criminal matters. In
areas where authorities other than courts or prosecutors are considered as competent
authorities within the meaning of this Regulation, such as notaries, the designated
monitoring sample should be representative of their implementation of the Regulation
as well.
(29) The application of this Regulation should be without prejudice to procedural rights as
enshrined in the Charter of Fundamental Rights of the European Union17 and Union
law, such as the procedural rights directives18, and in particular to the right to an
interpreter, the right of access to a lawyer, the right of access to the case file, the right
to legal aid, and the right to be present at the trial.
(30) Regulation (EU) 2016/679 of the European Parliament and the Council and Directive
(EU) 2016/68019 of the European Parliament and the Council, apply to the processing
of personal data carried out in the decentralised IT system. In order to clarify the
responsibility for the processing of personal data sent or received through the
decentralised IT system, this Regulation should indicate the controller of the personal
data. For this purpose, each sending or receiving entity should be regarded as having
determined the purpose and means of the personal data processing separately.
(31) In order to ensure uniform conditions for the implementation of this Regulation as
regards the establishment of the decentralised IT system, implementing powers should
be conferred on the Commission. Those powers should be exercised in accordance
with Regulation (EU) No 182/2011 of the European Parliament and of the Council20.
17
Charter of Fundamental Rights of the European Union (OJ C 326, 26.10.2012, p. 391–407).
18
Directive 2010/64/EU of the European Parliament and of the Council of 22 May 2012 on the right to
interpretation and translation in criminal proceedings (OJ 2010 L 280/1) Directive 2012/13/EU of the
European Parliament and of the Council of 22 May 2012 on the right to information in criminal
proceedings (OJ 2012 L 142/1); Directive 2013/48/EU of the European Parliament and of the Council
of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest
warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to
communicate with third persons and with consular authorities while deprived of liberty (OJ 2013 L
294/1); Directive (EU) 2016/343 of the European Parliament and of the Council of 9 March 2016 on the
strengthening of certain aspects of the presumption of innocence and of the right to be present at the
trial in criminal proceedings (OJ 2016 L 65/1);- Directive (EU) 2016/800 of the European Parliament
and of the Council of 11 May 2016 on procedural safeguards for children who are suspects or accused
persons in criminal proceedings (OJ 2016 L 132/1); Directive (EU) 2016/1919 of the European
Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in
criminal proceedings and for requested persons in European arrest warrant proceedings (OJ L 297,
4.11.2016).
19
Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data by competent authorities for
the purposes of the prevention, investigation, detection or prosecution of criminal offences or the
execution of criminal penalties, and on the free movement of such data, and repealing Council
Framework Decision 2008/977/JHA (OJ L 119, 4.5.2016, p. 89).
20
Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011
laying down the rules and general principles concerning mechanisms for control by the Member States
of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).
EN 23 EN
(32) Since harmonised digitalisation of cross-border judicial cooperation cannot be
sufficiently achieved by the Member States acting alone, for reasons such as no
guarantee as to the interoperability of IT systems of Member States and Union
agencies and bodies, but can rather, by reason of coordinated Union action, be better
achieved at Union level, the Union may adopt measures, in accordance with the
principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In
accordance with the principle of proportionality as set out in that Article, this
Regulation does not go beyond what is necessary in order to achieve those objectives.
(33) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark,
annexed to the Treaty on European Union and to the Treaty on the Functioning of the
European Union, Denmark is not taking part in the adoption of this Regulation and is
not bound by it or subject to its application.
(34) [In accordance with Articles 1, 2 and 4a(1) of Protocol No 21 on the position of the
United Kingdom and Ireland in respect of the area of freedom, security and justice,
annexed to the Treaty on European Union and to the Treaty on the Functioning of the
European Union, and without prejudice to Article 4 of that Protocol, Ireland is not
taking part in the adoption of this Regulation and is not bound by it or subject to its
application.]
OR
In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of
the United Kingdom and Ireland in respect of the area of freedom, security and
justice, annexed to the Treaty on European Union and to the Treaty on the
Functioning of the European Union, Ireland has notified [, by letter of …,] its wish to
take part in the adoption and application of this Regulation.[
(35) The European Data Protection Supervisor was consulted in accordance with Article
42(1) of Regulation (EC) No 2018/1725 of the European Parliament and of the
Council and delivered an opinion on […],
EN 24 EN
HAVE ADOPTED THIS REGULATION:
CHAPTER I
GENERAL PROVISIONS
Article 1
Subject matter and scope
1. This Regulation establishes a legal framework for electronic communication between
competent authorities in judicial cooperation procedures in civil, commercial and
criminal matters and for electronic communication between natural or legal persons
and competent authorities in judicial procedures in civil and commercial and criminal
matters.
In addition, it lays down rules on:
(a) the use of videoconferencing or other distance communication technology for
purposes other than taking of evidence under Regulation (EU) 2020/1783;
(b) the application of electronic trust services;
(c) the legal effects of electronic documents;
(d) electronic payment of fees.
2. This Regulation shall apply to:
(a) electronic communication between competent authorities in the context of the
legal acts listed in Annex I and Annex II;
(b) electronic communication between natural or legal persons and competent
authorities, and electronic payment of fees in cross-border civil and
commercial matters, in the context of the legal acts listed in Annex I; and
(c) videoconferencing in proceedings falling under the scope of the legal acts
listed in Annex I and Annex II or in other civil and commercial matters, where
one of the parties is present in another Member State.
Article 2
Definitions
For the purposes of this Regulation, the following definitions apply:
(1) “competent authorities” means courts, public prosecutors, Union agencies and bodies
and other authorities taking part in judicial cooperation procedures in accordance
with the provisions of the legal acts listed in Annex I and Annex II;
(2) “electronic communication” means digital exchange of information over the internet
or another electronic communication network;
(3) “electronic document” means a document transmitted as part of electronic
communication, including scanned paper documents;
(4) “decentralised IT system” means a network of IT systems and interoperable access
points, operating under the individual responsibility and management of each
Member State, Union agency or body that enables the secure and reliable cross-
border exchange of information;
EN 25 EN
(5) “European electronic access point” means an interoperable access point in the
context of the decentralised IT system, which is accessible to natural and legal
persons throughout the Union;
(6) “fees” means payments levied by competent authorities in the context of the
proceedings under the legal acts listed in Annex I.
CHAPTER II
COMMUNICATION BETWEEN COMPETENT AUTHORITIES
Article 3
Means of communication between competent authorities
1. Written communication between competent authorities in cases falling under the
scope of the legal acts listed in Annex I and Annex II, including the exchange of
forms established by these acts, shall be carried out through a secure and reliable
decentralised IT system.
2. Where electronic communication in accordance with paragraph 1 is not possible due
to the disruption of the decentralised IT system, the nature of the transmitted material
or exceptional circumstances, the transmission shall be carried out by the swiftest,
most appropriate alternative means, taking into account the need to ensure a secure
and reliable exchange of information.
3. Where the use of the decentralised IT system is not appropriate in view of the
specific circumstances of the communication in question, any other means of
communication may be used.
4. Paragraph 3 of this Article shall not apply to the exchange of forms provided by the
instruments listed in Annex I and Annex II.
CHAPTER III
COMMUNICATION BETWEEN NATURAL OR LEGAL PERSONS AND
COMPETENT AUTHORITIES IN CIVIL AND COMMERCIAL
MATTERS
Article 4
Establishment of a European electronic access point
1. A European electronic access point shall be established on the European e-Justice
Portal, to be used for electronic communication between natural or legal persons and
competent authorities in cases falling under the scope of the legal acts listed in
Annex I.
2. The Commission shall be responsible for the technical management, development,
maintenance, security and support of the European electronic access point.
3. The European electronic access point shall allow natural and legal persons to file
claims, launch requests, send and receive procedurally relevant information and
communicate with the competent authorities.
EN 26 EN
Article 5
Means of communication between natural or legal persons and competent authorities
1. Written communication between natural or legal persons and competent authorities
falling within the scope of the legal acts listed in Annex I, may be carried out by the
following electronic means:
(a) the European electronic access point; or
(b) national IT portals, where available.
2. Competent authorities shall communicate with natural and legal persons through the
European electronic access point, where that natural or legal person gave prior
express consent to the use of this means of communication.
3. Communication under paragraph 1 shall be considered equivalent to written
communication under the applicable procedural rules.
Article 6
Obligation to accept electronic communication
Competent authorities shall accept electronic communication under Article 5(1), transmitted
through the European electronic access point or national IT portals, where available.
CHAPTER IV
HEARING THROUGH VIDEOCONFERENCING OR OTHER
DISTANCE COMMUNICATION TECHNOLOGY
Article 7
Hearing through videoconferencing or other distance communication technology in civil and
commercial matters
1. Without prejudice to specific provisions regulating the use of videoconferencing or
other distance communication technology in proceedings under the legal acts listed
in Annex I, and upon request of a party to proceedings falling under the scope of
these legal acts or in other civil and commercial matters where one of the parties is
present in another Member State, or upon request of their legal or authorised
representative, competent authorities shall allow their participation to a hearing by
videoconferencing or other distance communication technology, provided that:
(a) such technology is available, and
(b) the other party or parties to the proceedings were given the possibility to
submit an opinion on the use of videoconferencing or other distance
communication technology.
2. A request for conducting an oral hearing through videoconferencing or other distance
communication technology may be refused by the competent authority where the
particular circumstances of the case are not compatible with the use of such
technology.
3. Competent authorities may on their own motion allow the participation of parties to
hearings by videoconference, provided that all parties to the proceedings are given
the possibility to submit an opinion on the use of videoconferencing or other distance
communication technology.
EN 27 EN
4. Subject to this Regulation, the procedure for requesting and conducting a
videoconference shall be regulated by the national law of the Member State
conducting videoconference.
5. Requests under paragraph 1 may be submitted via the European electronic access
point and through national IT portals, where available.
Article 8
Hearing through videoconferencing or other distance communication technology in criminal
proceedings
1. Where the competent authority of a Member State requests the hearing of a suspect,
accused or convicted person in proceedings under the legal acts listed in Annex II,
the competent authority shall allow their participation to the hearing by
videoconferencing or other distance communication technology, provided that:
(a) such technology is available;
(b) the particular circumstances of the case justify the use of such technology;
(c) the suspect, accused or convicted persons expressed consent on the use of
videoconferencing or other distance communication technology. Before
expressing consent on the use of videoconferencing or other distance
communication technology the suspect or the accused person shall have the
possibility to seek the advice of a lawyer in accordance with Directive
2013/48/EU.
2. Paragraph 1 is without prejudice to the provisions regulating the use of
videoconferencing or other distance communication technology in the legal acts
listed in Annex II.
3. Subject to this Regulation, the procedure for conducting a videoconference shall be
regulated by the national law of the Member State conducting the videoconference.
4. The confidentiality of communication between suspects, accused or convicted
persons and their lawyer before and during the hearing through videoconferencing or
other distance communication technology shall be ensured.
5. Before hearing a child through videoconferencing or other distance communication
technology, holders of parental responsibility as defined in Article 3, point 2 of
Directive (EU) 2016/800 of the European Parliament and of the Council1 or another
appropriate adult as referred to in Article 5(2) of that Directive shall be informed
promptly. When deciding whether to hear a child through videoconferencing or other
distance communication technology, the competent authority shall take into account
the best interests of the child.
6. Where the recording of hearings is provided for under the national law of a Member
State for domestic cases, the same rules shall apply also to hearings through
videoconferencing or other distance communication technology in cross-border
1
Directive (EU) 2016/800 of the European Parliament and of the Council of 11 May 2016 on procedural
safeguards for children who are suspects or accused persons in criminal proceedings (OJ L 132,
21.5.2016, p. 1–20).
EN 28 EN
cases. Member States shall take appropriate measures to ensure that such records are
secured and not publicly disseminated.
7. A suspect, an accused and the convicted person shall have the right to an effective
legal remedy under national law in the event of a breach of this Article.
CHAPTER V
TRUST SERVICES, LEGAL EFFECTS OF ELECTRONIC DOCUMENTS
AND ELECTRONIC PAYMENT OF FEES
Article 9
Electronic signatures and electronic seals
1. The general legal framework for the use of trust services set out in Regulation (EU)
No 910/2014 shall apply to the electronic communication under this Regulation.
2. Where a document transmitted as part of the electronic communication under Article
3 of this Regulation requires or features a seal or handwritten signature, qualified
electronic seals or qualified electronic signatures as defined in Regulation (EU) No
910/2014 may be used instead.
3. Where a document transmitted as part of the electronic communication under Article
5 of this Regulation requires or features a seal or handwritten signature, advanced
electronic seals, advanced electronic signatures, qualified electronic seals or qualified
electronic signatures as defined in Regulation (EU) No 910/2014 may be used
instead.
Article 10
Legal effects of electronic documents
Documents transmitted as part of electronic communication shall not be denied legal effect or
be considered inadmissible in the context of cross-border judicial procedures under the legal
acts listed in Annex I and Annex II solely on the ground that they are in electronic form.
Article 11
Electronic payment of fees
1. Member States shall provide for the possibility of electronic payment of fees,
including from Member States other than where the competent authority is situated.
2. Member States shall provide for technical means allowing the payment of the fees
referred to in paragraph 1 through the European electronic access point.
CHAPTER VI
PROCEDURAL PROVISIONS AND EVALUATION
Article 12
Adoption of implementing acts by the Commission
1. The Commission shall adopt implementing acts establishing the decentralised IT
system, setting out the following:
EN 29 EN
(a) the technical specifications defining the methods of communication by
electronic means for the purposes of the decentralised IT system;
(b) the technical specifications for communication protocols;
(c) the information security objectives and relevant technical measures ensuring
minimum information security standards and a high level of cybersecurity for
the processing and communication of information within the decentralised IT
system;
(d) the minimum availability objectives and possible related technical
requirements for the services provided by the decentralised IT system;
2. The implementing acts referred to in paragraph 1 of this Article shall be adopted in
accordance with the examination procedure referred to in Article 16.
3. The implementing acts establishing the decentralised IT system for the legal acts
listed in Annex I, points 3 and 4 and the legal acts listed in Annex II, points 2, 6 and
10 shall be adopted by [2 years after the entry into force].
4. The implementing acts establishing the decentralised IT system for the legal acts
listed in Annex I, points 1, 8 and 9 and the legal act listed in Annex II, point 11 shall
be adopted by [3 years after the entry into force].
5. The implementing acts establishing the decentralised IT system for the legal acts
listed in Annex I, points 6, 10, 11 and the legal acts listed in Annex II, points 3, 4, 5
and 9 shall be adopted by [5 years after the entry into force].
6. The implementing acts establishing the decentralised IT system for the legal acts
listed in Annex I, points 2, 5, 7 and 12 and the legal acts listed in Annex II, points 1,
7 and 8 shall be adopted by [6 years after the entry into force].
Article 13
Reference implementation software
1. The Commission shall be responsible for the creation, maintenance and development
of reference implementation software which Member States may choose to apply as
their back-end system instead of a national IT system. The creation, maintenance and
development of the reference implementation software shall be financed from the
general budget of the Union.
2. The Commission shall provide, maintain and support on a free-of-charge basis the
reference implementation software.
Article 14
Costs of the decentralised IT system, European electronic access point and national IT
portals
1. Each Member State shall bear the costs of the installation, operation and maintenance
of the decentralised IT system’s access points which are located on their territory.
2. Each Member State shall bear the costs of establishing and adjusting its national IT
systems to make them interoperable with the access points, and shall bear the costs of
administering, operating and maintaining those systems.
EN 30 EN
3. Member States shall not be prevented from applying for grants to support the
activities referred to in paragraphs 1 and 2, under the relevant Union financial
programmes.
4. Union agencies and bodies shall bear the costs of the installation, operation and
maintenance of the components comprising the decentralised IT system under their
responsibility.
5. Union agencies and bodies shall bear the costs of establishing and adjusting their
case-management systems to make them interoperable with the access points, and
shall bear the costs of administering, operating and maintaining those systems.
6. The Commission shall bear all costs related to the European electronic access point.
Article 15
Protection of information transmitted
1. The competent authority shall be regarded as controller within the meaning of
Regulation (EU) 2016/679, Regulation (EU) 2018/1725 or Directive (EU) 2016/680
with respect to the processing of personal data sent or received through the
decentralised IT system.
2. The Commission shall be regarded as a controller within the meaning of Regulation
(EU) 2018/1725 with respect to personal data processing by the European electronic
access point.
3. Competent authorities shall ensure that information transmitted in the context of
cross-border judicial procedures to another competent authority, which is deemed
confidential in the Member State from which the information is being sent, remains
confidential in accordance with the national law of the Member State to which the
information is being sent.
Article 16
Committee procedure
1. The Commission shall be assisted by a committee. That committee shall be a
committee within the meaning of Regulation (EU) No 182/20112.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No
182/2011 shall apply.
Article 17
Monitoring and Evaluation
1. Every five years after the date of application of Article 25, the Commission shall
carry out an evaluation of this Regulation and present to the European Parliament
and to the Council a report supported by information supplied by the Member States
and collected by the Commission.
2
Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011
laying down the rules and general principles concerning mechanisms for control by Member States of
the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13–18).
EN 31 EN
2. As of […] 2025, unless an equivalent notification procedure applies under other
Union legal acts, the Member States shall provide the Commission on an annual
basis with information relevant for the evaluation of the operation and application of
this Regulation on:
(a) the costs incurred under Article 14(2) of this Regulation;
(b) the length of the first instance judicial proceedings, from the reception of the
application by the competent authority until the date of the decision, under the
legal acts listed in Annex I points 3, 4 and 8 and Annex II.
3. Each Member State shall designate one or more competent authorities to provide the
Commission on an annual basis with the following data:
(a) the number of cases handled by that authority, where communication was
carried out by means other than through the decentralised IT system, in
accordance with Article 3(2);
(b) the number of hearings conducted by that authority, where videoconferencing
or other distance communication technology was used for oral hearings in
accordance with Article 7 and Article 8;
4. The reference implementation software and, where equipped to do so, the national
back-end system shall programmatically collect the data referred to in point (a) of
paragraph 3 and transmit them to the Commission on an annual basis.
Article 18
Information to be communicated to the Commission
5. Member States shall communicate by [six months after entry into force] to the
Commission the following information with a view to making it available through
the European e-Justice Portal:
(a) details of national IT portals, where applicable;
(b) a description of the national laws and procedures applicable to
videoconferencing;
(c) information on fees due in cross-border cases;
(d) details on the electronic payment methods available for fees due in cross-
border cases;
Member States shall communicate to the Commission any changes with regard to
this information without delay.
6. Member States may notify the Commission if they are in a position to operate the
decentralised IT system earlier than required by this Regulation. The Commission
shall make such information available electronically, in particular through the
European e-Justice Portal.
EN 32 EN
CHAPTER VII
AMENDMENTS TO LEGAL ACTS IN THE AREA OF JUDICIAL
COOPERATION IN CIVIL AND COMMERCIAL MATTERS
Article 19
Amendments to Regulation (EC) No 1896/20063
Regulation (EC) No 1896/2006 is amended as follows:
(1) In Article ,7 paragraph 5 is replaced by the following:
“5. The application shall be submitted in paper form, by electronic means of communication
provided for in Article 5 of Regulation (EU) …/…[this Regulation], or by any other means
of communication, including electronic, accepted by the Member State of origin and available
to the court of origin .”.
(2) In Article 7, paragraph 6, the first sub-paragraph is replaced by the following:
“6. The application shall be signed by the claimant or, where applicable, by his representative.
Where the application is submitted in electronic form in accordance with paragraph 5, it shall
be signed in accordance with Article 9(3) of Regulation (EU) …/…[this Regulation]. The
electronic signature shall be recognised in the Member State of origin and may not be made
subject to additional requirements.”.
(3) Article 16 is amended as follows:
(a) paragraph 4 is replaced by the following:
“4. The statement of opposition shall be submitted in paper form or by electronic means of
communication provided for in Article 5 of Regulation (EU) …/…[this Regulation], or by
any other means of communication, including electronic, accepted by the Member State of
origin and available to the court of origin.”.
(b) in paragraph 5, the first subparagraph is replaced by the following:
“5. The statement of opposition shall be signed by the defendant or, where applicable, by his
representative. Where the application is submitted in electronic form in accordance with
paragraph 5 of this Article, it shall be signed in accordance with Article 9(3) of Regulation
3
Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006
creating a European order for payment procedure (OJ L 399, 30.12.2006, p. 1)
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
EN 33 EN
(EU) …/…[this Regulation]. The electronic signature shall be recognised in the Member
State of origin and may not be made subject to additional requirements.”.
Article 20
Amendments to Regulation (EC) No 861/20074
Regulation (EC) No 861/2007 is amended as follows:
(1) In Article 4, paragraph 1 is replaced by the following:
“1. The claimant shall commence the European Small Claims Procedure by filling in standard
claim Form A, as set out in Annex I to this Regulation, and lodging it with the court or
tribunal with jurisdiction directly, by post, by electronic means of communication provided
for in Article 5 of Regulation (EU) …/…[this Regulation] or by any other means of
communication, such as fax or e-mail, acceptable to the Member State in which the procedure
is commenced. The claim form shall include a description of evidence supporting the claim
and be accompanied, where appropriate, by any relevant supporting documents.”.
(2) In Article 15a, paragraph 2 is replaced by the following:
“2. The Member States shall ensure that the parties can make electronic payments of court
fees by means of distance payment methods which allow the parties to make the payment also
from a Member State other than the Member State in which the court or tribunal is situated, in
accordance with Article 11 of Regulation (EU) …/…[this Regulation].
Article 21
Amendments to Regulation (EU) No 655/20145
Regulation (EU) No 655/2014 is amended as follows:
(1) In Article 8, paragraph 4 is replaced by the following:
“4. The application and supporting documents may be submitted by any means of
communication, including electronic, which are accepted under the procedural rules of the
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
4
Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007
establishing a European Small Claims Procedure (OJ L 199, 31.7.2007, p. 1)
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
5
Regulation (EU) No 655/2014 of the European Parliament and of the Council of 15 May 2014
establishing a European Account Preservation Order procedure to facilitate cross-border debt recovery
in civil and commercial matters (OJ L 189, 27.6.2014, p. 59).
EN 34 EN
Member State in which the application is lodged or by the electronic means of communication
provided for in Article 5 of Regulation (EU) …/…[this Regulation].”
(2) In Article 17, paragraph 5 is replaced by the following:
“5. The decision on the application shall be brought to the notice of the creditor in accordance
with the procedure provided for by the law of the Member State of origin for equivalent
national orders or by the electronic means of communication provided for in Article 5 of
Regulation (EU) …/…[this Regulation].”.
(3) Article 29 is replaced by the following:
“Article 29
Transmission of documents
1. Where this Regulation provides for transmission of documents in accordance with this
Article, such transmission shall be carried out in accordance with Regulation (EU) …/…[this
Regulation] as regards the communication between authorities, or by any appropriate means
where communication is to be carried out by creditors, provided that the content of the
document received is true and faithful to that of the document transmitted and that all
information contained in it is easily legible.”.
2. The court or authority that received documents in accordance with paragraph 1 of this
Article shall, by the end of the working day following the day of receipt, send to:
(a) the authority that transmitted the documents an acknowledgment of receipt, in accordance
with Article 3 of Regulation (EU) …/…[this Regulation]; or
(b) creditor or bank that transmitted the documents an acknowledgment of receipt ; employing
the swiftest possible means of transmission.
The court or authority that received documents in accordance with paragraph 1 of this Article
shall us the standard form established by means of implementing acts adopted in accordance
with the advisory procedure referred to in Article 52(2).”.
(4) Article 36 is amended as follows:
(a) paragraph 1 is replaced by the following:
“1. The application for a remedy pursuant to Article 33, 34 or 35 shall be made using the
remedy form established by means of implementing acts adopted in accordance with the
advisory procedure referred to in Article 52(2).
The application may be made at any time and may be submitted:
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
EN 35 EN
(a) by any means of communication, including electronic means, which are accepted
under the procedural rules of the Member State in which the application is lodged;
(b) by the electronic means of communication provided for in Article 5 of Regulation
(EU) …/…[this Regulation].”
(b). paragraph 3 is replaced by the following:
“3. Except where the application was submitted by the debtor pursuant to Article 34(1), point
(a) or pursuant to Article 35(3), the decision on the application shall be issued after both
parties have been given the opportunity to present their case, including by such appropriate
means of communication technology as are available and accepted under the national law of
each of the Member States involved or under Regulation (EU) …/…[this Regulation].”.
Article 22
Amendments to Regulation 848/20156
Regulation (EU) 848/2015 is amended as follows:
(1) In Article 42, paragraph 3, the first sentence is replaced by the following: “The
cooperation referred to in paragraph 1 of this Article shall be implemented in accordance
with Article 3 of Regulation (EU) …/… [this regulation]*,”.
(2) Article 53 is replaced by the following:
“Article 53
Right to lodge claims
Any foreign creditor may lodge claims in insolvency proceedings by any means of
communication, which are accepted by the law of the State of the opening of proceedings or
by the electronic means of communication provided for in Article 5 of Regulation (EU)
…/…[this Regulation].
Representation by a lawyer or another legal professional shall not be mandatory for the sole
purpose of lodging of claims.”.
(3) In Article 57 paragraph 3, the first sentence is replaced by the following:
“The cooperation referred to in paragraph 1 of this Article shall be implemented in
accordance with Article 3 of Regulation (EU) …/… [this regulation]*.”.
CHAPTER VIII
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
6
Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on
insolvency proceedings (OJ L 141, 5.6.2015, p. 19)
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
EN 36 EN
AMENDMENTS TO LEGAL ACTS IN THE AREA OF JUDICIAL COOPERATION
IN CRIMINAL MATTERS
Article 23
Amendments in Regulation (EU) 2018/18057
Regulation (EU) 2018/1805 is amended as follows:
(1) In Article 4, paragraph 1 is replaced by the following:
“1. A freezing order shall be transmitted by means of a freezing certificate. The issuing
authority shall transmit the freezing certificate provided for in Article 6 of this Regulation
directly to the executing authority or, where applicable, to the central authority referred to in
Article 24(2) of this Regulation in accordance with Article 3 of Regulation (EU) …/…[this
Regulation].”.
(2) In Article 7, paragraph 2 is replaced by the following:
“2. The executing authority shall report to the issuing authority on the execution of the
freezing order, including a description of the property frozen and, where available, providing
an estimate of its value. Such reporting shall be carried out in accordance with Article 3 of
Regulation (EU) …/…[this Regulation], without undue delay once the executing authority
has been informed that the freezing order has been executed.”
(3) In Article 8, paragraph 3 is replaced by the following:
“3. Any decision not to recognise or execute the freezing order shall be taken without delay
and notified immediately to the issuing authority in accordance with Article 3 of Regulation
(EU) …/…[this Regulation].”
(4) In Article 9, paragraph 4 is replaced by the following:
“4. The executing authority shall communicate, without delay and in accordance with Article
3 of Regulation (EU) …/…[this Regulation], the decision on the recognition and execution
of the freezing order to the issuing authority.”
(5) In Article 10, paragraphs 2 and 3 are replaced by the following:
“2. The executing authority shall, immediately and in accordance with Article 3 of Regulation
(EU) …/…[this Regulation], report to the issuing authority on the postponement of the
7
Regulation (EU) 2018/1805 of the European Parliament and of the Council of 14 November 2018 on
the mutual recognition of freezing orders and confiscation orders (OJ L 303, 28.11.2018, p. 1).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
EN 37 EN
execution of the freezing order, specifying the grounds for the postponement and, where
possible, the expected duration of the postponement.”
“3. As soon as the grounds for postponement have ceased to exist, the executing authority
shall immediately take the measures necessary for the execution of the freezing order and
inform the issuing authority thereof in accordance with Article 3 of Regulation (EU)
…/…[this Regulation].”
(6) In Article 12, paragraph 2 is replaced by the following:
“2. The executing authority may, taking into account the circumstances of the case, make a
reasoned request to the issuing authority to limit the period for which the property is to be
frozen. Such a request, including any relevant supporting information, shall be transmitted in
accordance with Article 3 of Regulation (EU) …/…[this Regulation]. When examining such
a request, the issuing authority shall take all interests into account, including those of the
executing authority. The issuing authority shall respond to the request as soon as possible. If
the issuing authority does not agree to the limitation, it shall inform the executing authority of
the reasons thereof. In such a case, the property shall remain frozen in accordance with
paragraph 1 of this Article. If the issuing authority does not respond within six weeks of
receiving the request, the executing authority shall no longer be obliged to execute the
freezing order.”
(7) In Article 14, paragraph 1 is replaced by the following:
“1. A confiscation order shall be transmitted by means of a confiscation certificate. The
issuing authority shall transmit the confiscation certificate provided for in Article 17 of this
Regulation directly to the executing authority or, where applicable, to the central authority
referred to in Article 24(2) of this Regulation, in accordance with Article 3 of Regulation
(EU) …/…[this Regulation].”.
(8) In article 16, paragraph 3, the introductory wording, is replaced by the following:
“The issuing authority shall immediately inform the executing authority in accordance with
Article 3 of Regulation (EU) …/…[this Regulation] where: (…)”
(9) In Article 18, paragraph 6 is replaced by the following:
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
EN 38 EN
“6. As soon as the execution of the confiscation order has been completed, the executing
authority shall inform, in accordance with Article 3 of Regulation (EU) …/…[this
Regulation], the issuing authority of the results of the execution”.
(10) In Article 19, paragraph 3 is replaced by the following:
“3. Any decision not to recognise or execute the confiscation order shall be taken without
delay and notified immediately to the issuing authority in accordance with Article 3 of
Regulation (EU) …/…[this Regulation].”
(11) In Article 20, paragraph 2 is replaced by the following:
“2. The executing authority shall communicate, without delay and in accordance with Article
3 of Regulation (EU) …/…[this Regulation], the decision on the recognition and execution
of the confiscation order to the issuing authority.”
(12) In Article 21, paragraph 3 is replaced by the following:
“3. The executing authority shall, without delay and in accordance with Article 3 of
Regulation (EU) …/…[this Regulation], report to the issuing authority on the postponement
of the execution of the confiscation order, specifying the grounds for the postponement and,
where possible, the expected duration of the postponement”.
(13) In Article 21, paragraph 4 is replaced by the following:
“4. As soon as the grounds for postponement have ceased to exist, the executing authority
shall take, without delay, the measures necessary for the execution of the confiscation order
and inform the issuing authority thereof in accordance with Article 3 of Regulation (EU)
…/…[this Regulation].”
(14) In Article 27, paragraphs 2 and 3 are replaced by the following:
“2. The issuing authority shall immediately inform the executing authority, in accordance
with Article 3 of Regulation (EU) …/…[this Regulation], of the withdrawal of a freezing
order or confiscation order and of any decision or measure that causes a freezing order or
confiscation order to be withdrawn.”
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Proposal for a Regulation (EU) of the European Parliament and of the Council on the 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 (COM(2021) 759).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
EN 39 EN
“3. The executing authority shall terminate the execution of the freezing order or confiscation
order, in so far as the execution has not yet been completed, as soon as it has been informed
by the issuing authority in accordance with paragraph 2 of this Article. The executing
authority shall send, without undue delay and in accordance with Article 3 of Regulation (EU)
…/…[this Regulation], a confirmation of the termination to the issuing State.”
(15) In Article 31, paragraph 2, the third subparagraph, is replaced by the following:
“The consultation, or at least the result thereof, shall be recorded in accordance with Article 3
of Regulation (EU) …/…[this Regulation].”.
CHAPTER IX
FINAL PROVISIONS
Article 24
Transitional provisions
1. Member States shall start using the decentralised IT system referred to in Articles
3(1), and 5(1) and (2) from the first day of the month following the period of two
years after the adoption of the implementing act referred to in Article 12(3).
They shall use that decentralised IT system to procedures instituted from the day
referred to in the first subparagraph.
2. Member States shall start using the decentralised IT system referred to in Articles
3(1), and 5(1) and (2) from the first day of the month following the period of two
years after the adoption of the implementing act referred to in Article 12(4).
They shall use that decentralised IT system to procedures instituted from the day
referred to in the first subparagraph.
3. Member States shall start using the decentralised IT system referred to in 3(1), and
5(1) and (2) from the first day of the month following the period of two years after
the adoption of the implementing act referred to in Article 12(5).
They shall use that decentralised IT system to procedures instituted from the day
referred to in the first subparagraph.
4. Member States shall start using the decentralised IT system referred to in 3(1), and
5(1) and (2) from the first day of the month following the period of two years after
the adoption of the implementing act referred to in Article 12(6).
They shall use that decentralised IT system to procedures instituted from the day
referred to in the first subparagraph.
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
Regulation (EU) […] of the European Parliament and of the Council on the 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 (OJ L …).
EN 40 EN
Article 25
Entry into force and application
This Regulation shall enter into force on the day following that of its publication in the
Official Journal of the European Union.
It shall apply from [the first day of the month following the period of two years after the date
of entry into force].
This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaties.
Done at Brussels,
For the European Parliament For the Council
The President The President
EN 41 EN
LEGISLATIVE FINANCIAL STATEMENT
Contents
1. FRAMEWORK OF THE PROPOSAL/INITIATIVE ............................................... 44
1.1. Title of the proposal/initiative .................................................................................... 44
1.2. Policy area(s) concerned ............................................................................................ 44
1.3. The proposal/initiative relates to: ............................................................................... 44
1.4. Objective(s) ................................................................................................................ 44
1.4.1. General objective(s) ................................................................................................... 44
1.4.2. Specific objective(s) ................................................................................................... 44
1.4.3. Expected result(s) and impact .................................................................................... 45
1.4.4. Indicators of performance .......................................................................................... 45
1.5. Grounds for the proposal/initiative ............................................................................ 46
1.5.1. Requirement(s) to be met in the short or long term including a detailed timeline for
roll-out of the implementation of the initiative .......................................................... 46
1.5.2. Added value of Union involvement (it may result from different factors, e.g.
coordination gains, legal certainty, greater effectiveness or complementarities). For
the purposes of this point 'added value of Union involvement' is the value resulting
from Union intervention which is additional to the value that would have been
otherwise created by Member States alone. ............................................................... 47
1.5.3. Lessons learned from similar experiences in the past ................................................ 47
1.5.4. Compatibility with the Multiannual Financial Framework and possible synergies
with other appropriate instruments............................................................................. 48
1.5.5. Assessment of the different available financing options, including scope for
redeployment .............................................................................................................. 48
1.6. Duration and financial impact of the proposal/initiative ........................................... 48
1.7. Management mode(s) planned ................................................................................... 49
2. MANAGEMENT MEASURES................................................................................. 50
2.1. Monitoring and reporting rules .................................................................................. 50
2.2. Management and control system(s) ........................................................................... 50
2.2.1. Justification of the management mode(s), the funding implementation mechanism(s),
the payment modalities and the control strategy proposed ........................................ 50
2.2.2. Information concerning the risks identified and the internal control system(s) set up
to mitigate them.......................................................................................................... 50
2.2.3. Estimation and justification of the cost-effectiveness of the controls (ratio of "control
costs ÷ value of the related funds managed"), and assessment of the expected levels
of risk of error (at payment & at closure) .................................................................. 51
2.3. Measures to prevent fraud and irregularities .............................................................. 51
3. ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE ............ 52
EN 42 EN
3.1. Heading(s) of the multiannual financial framework and expenditure budget line(s)
affected ....................................................................................................................... 52
3.2. Estimated financial impact of the proposal on appropriations ................................... 53
3.2.1. Summary of estimated impact on operational appropriations.................................... 53
3.2.2. Estimated output funded with operational appropriations ......................................... 55
3.2.3. Summary of estimated impact on administrative appropriations ............................... 57
3.2.4. Compatibility with the current multiannual financial framework.............................. 60
3.2.5. Third-party contributions ........................................................................................... 60
3.3. Estimated impact on revenue ..................................................................................... 61
EN 43 EN
LEGISLATIVE FINANCIAL STATEMENT
1. FRAMEWORK OF THE PROPOSAL/INITIATIVE
1.1. Title of the proposal/initiative
Proposal for a Regulation of the European Parliament and the Council on the
digitalisation of judicial cooperation and access to justice in civil, commercial and
criminal law matters, and amending certain acts in the field of judicial cooperation
1.2. Policy area(s) concerned
Heading 1: Single Market, Innovation and Digital, Policy Cluster: European
Strategic Investments
1.3. The proposal/initiative relates to:
a new action
a new action following a pilot project/preparatory action 56
the extension of an existing action
a merger or redirection of one or more actions towards another/a new action
1.4. Objective(s)
1.4.1. General objective(s)
The general objectives of this initiative are to:
- improve the efficiency of EU cross-border judicial cooperation in civil, commercial
and criminal matters, and
- contribute towards facilitating access to justice by removing existing barriers and
inefficiencies.
These general objectives directly dovetail with the efforts to drive forth the digital
transformation of justice referred under Regulation (EU) 2021/69457 (“the
Programme”), in particular as articulated in Recitals (47) and (52) thereof, and under
Specific Objective 5 of the Annex thereto.
1.4.2. Specific objective(s)
Specific objective No 1
The initiative aims to improve the efficiency of EU cross-border judicial cooperation
in civil, commercial and criminal matters, by mandating the use of a digital channel
of communication between competent authorities.
Specific objective No 2
In the context of EU cross-border interactions, the initiative aims to tackle current
barriers and contribute towards facilitating access to justice. This will be achieved by
56
As referred to in Article 58(2)(a) or (b) of the Financial Regulation.
57
Regulation (EU) 2021/694 of the European Parliament and of the Council of 29 April 2021 establishing
the Digital Europe Programme and repealing Decision (EU) 2015/2240. (OJ L 166, 11.5.2021, p. 1–34).
EN 44 EN
obliging Member States to accept and recognise electronic submissions from citizens
and businesses, introducing possibilities for electronic payment of fees, and allowing
for the participation of the parties to proceedings through distance communication
technology (videoconferencing).
1.4.3. Expected result(s) and impact
Specify the effects which the proposal/initiative should have on the beneficiaries/groups targeted.
The expected results and impact of this initiative on the target groups are:
- Improved efficiency and resilience of the national competent authorities taking part
in cross-border judicial cooperation procedures;
- Time and cost savings for citizens, companies, legal practitioners, courts and other
competent authorities;
- Reduced administrative burden for courts and other competent authorities in
processing cross-border cases;
- Potential for a tangible increase in the use of the existing EU cross-border
instruments, in particular in civil matters, stemming from facilitated means of
communication for citizens, legal representatives and businesses with the national
competent authorities and vice versa;
- Positive social impact from an access of justice perspective, given the possibility to
submit claims, applications and other documents electronically, as well as to conduct
remote hearings;
- Positive economic impact from the perspective of efficiencies gained in reduced
administrative burden, postal and logistics costs;
- Positive environmental impact, mainly stemming from the reduced use of paper,
printing consumables, need to travel and reduced reliance on traditional logistical
means of transportation of documents.
1.4.4. Indicators of performance
Specify the indicators for monitoring progress and achievements.
Indicator No 1 (Specific Objective No 1)
Number of electronic exchanges taking place through the decentralised IT system
established by the Regulation. This indicator will be:
- Established with a scope of one or more judicial cooperation procedures established
by EU law (e.g. the European Arrest Warrant);
- Measured against a baseline of the number of exchanges taking place over
traditional (existing) means of communication. Thе comparison will be strictly done
in the control group of competent authorities proposed by the Member States;
- Monitored on annual basis, starting not earlier than 1 year from the start of digital
exchanges in the context of the monitored procedure(s), and for a duration of no less
than 5 years.
Indicator No 2 (Specific Objective No 2)
Number of electronic claims, applications and submissions sent and received through
the decentralised IT system established by the Regulation. This indicator will be:
EN 45 EN
- Established with a scope of one or more judicial cooperation procedures established
by EU law where individuals and businesses have the possibility to make a claim to a
competent national authority (e.g. the European Small Claims procedure);
- Measured against a baseline of the number of claims exchanged over traditional
(existing) means of communication. This comparison will be strictly done in the
control group of competent authorities proposed by the Member States;
- Monitored on annual basis, starting not earlier than 1 year from the moment the
obligation to accept electronic submissions enters into force, in the context of the
monitored procedure(s), and for a duration of no less than 5 years.
1.5. Grounds for the proposal/initiative
1.5.1. Requirement(s) to be met in the short or long term including a detailed timeline for
roll-out of the implementation of the initiative
The implementation of this initiative will follow a phased approach. Upon entry into
force of this Regulation, work will commence towards the adoption of an
implementing act defining the technical conditions for the digitalisation of a first,
prioritised “batch” of the judicial cooperation instruments within the scope of the
Regulation, followed by technical implementation. At the same time, work on the
implementing act for the next batch of prioritised instruments will be elaborated in
parallel. It is foreseen that a “batch” would address the digitalisation of 6-10 legal
instruments, with the objective to complete the full digitalisation of all in-scope civil,
commercial and criminal law legal instruments by 2029:
A provisional implementation timeline can be illustrated as follows:
- 2022: Adoption of the Regulation
- 2023: Adoption of an implementing act defining digitalisation aspects related to the
instruments included in Batch 1
- 2024-2025: Technical implementation of the decentralised IT system with regard to
the Batch 1 instruments
- 2025: Adoption of an implementing act defining digitalisation aspects related to the
instruments included in Batch 2
- 2026-2027: Technical implementation of the decentralised IT system with regard to
the Batch 2 instruments
- 2027: Adoption of an implementing act defining digitalisation aspects related to the
instruments included in Batch 3
- 2027-2028: Technical implementation of the decentralised IT system with regard to
the Batch 3 instruments
- 2028: Adoption of an implementing act defining digitalisation aspects related to the
instruments included in Batch 4
- 2028-2029: Technical implementation of the decentralised IT system with regard to
the Batch 4 instruments
Notwithstanding, additional implementation activities will be necessary beyond 2029
in order to ensure continued coordination, technical management, maintenance,
support and monitoring activities.
EN 46 EN
All the measures beyond 2027 will be subject to the availability of the allocations in
the next Multiannual Financial Framework (MFF) and do not prejudge the future
Commission’s proposal for the MFF post-2027.
1.5.2. Added value of Union involvement (it may result from different factors, e.g.
coordination gains, legal certainty, greater effectiveness or complementarities). For
the purposes of this point 'added value of Union involvement' is the value resulting
from Union intervention which is additional to the value that would have been
otherwise created by Member States alone.
Reasons for action at European level (ex-ante)
The initiative seeks to improve the efficiency and resilience of cross-border judicial
cooperation, and access to justice with regard to the body of EU judicial cooperation
legal instruments by introducing holistic digitalisation provisions. While, as
demonstrated in the Impact Assessment58, some previous good pilot projects exist,
voluntary cooperation cannot achieve the initiatives’ goals and objectives. This is
also predicated by the existence of legal uncertainties (e.g. with regard to the
recognition of electronic documents, signatures and seals), which cannot be
overcome without coordinated legislative action that can only be carried out at EU
level.
Expected generated Union added value (ex-post)
The initiative will contribute to more efficient and resilient EU cross-border judicial
cooperation and facilitated access to justice, and potentially lead to an increase in the
use of the relevant acquis. For more information on the expected positive added
value refer to the impacts elaborated above.
1.5.3. Lessons learned from similar experiences in the past
The initiative takes into account the lessons learnt in the context of the various pilot
use cases carried out on voluntary basis in the context of the development of the e-
CODEX system59.
More recently, it builds on the experiences gained in the context of the Service of
Documents60 and Taking of evidence Regulation61 (recast), where aspects related to
the mandatory use of a decentralised IT system for digital cross-border
communication were first introduced.
58
SWD(2021) 392
59
https://www.e-codex.eu/
60
Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on
the service in the Member States of judicial and extrajudicial documents in civil or commercial matters
(service of documents) (OJ L 405, 2.12.2020, p. 40–78).
61
Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on
cooperation between the courts of the Member States in the taking of evidence in civil or commercial
matters (taking of evidence) (recast) (OJ L 405, 2.12.2020, p. 1–39).
EN 47 EN
1.5.4. Compatibility with the Multiannual Financial Framework and possible synergies
with other appropriate instruments
This initiative is a follow-up to the Communication from the Commission on the
Digitalisation of justice in the European Union adopted on 2 December 202062.
It establishes synergies with:
- The proposal for a Regulation on the Computerised system for communication in
cross-border civil and criminal proceedings (e-CODEX system)63, given that the
foreseen electronic exchanges and the underlying decentralised IT system would rely
on e-CODEX as the technical solution for secure and interoperable cross-border
communication.
- Regulation (EU) 910/201464 (the ‘e-IDAS’ regulation), as this initiative introduces
the use of qualified trust services (qualified electronic seals and signatures) in the
context of the electronic communication taking place through the decentralised IT
system.
1.5.5. Assessment of the different available financing options, including scope for
redeployment
The initiative will fully re-use the eDelivery building block, and potentially the one
on eID and trust services that were developed under the Connecting Europe Facility
(CEF) programme. Moreover, the initiative aims to re-use the platform developed in
the context of the e-Evidence Digital Exchange System (e-EDES). In spite of
leveraging these synergies, financing will be required for the digitalisation of the
communication in the context of the judicial cooperation procedures, which currently
takes place through traditional means (namely paper). Implementation will start with
a preparatory analysis and finish with a solution rollout and operationalisation.
Member States would be able to seek financing for setting up/improving their
relevant national infrastructure from existing Union programmes - in particular, the
cohesion policy funds and the Justice programme65.
1.6. Duration and financial impact of the proposal/initiative
limited duration
– in effect from [DD/MM]YYYY to [DD/MM]YYYY
– Financial impact from YYYY to YYYY for commitment appropriations and
from YYYY to YYYY for payment appropriations.
unlimited duration
62
COM/2020/710 final.
63
Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on a
computerised system for communication in cross-border civil and criminal proceedings (e-CODEX
system), and amending Regulation (EU) 2018/1726 (COM/2020/712 final).
64
Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on
electronic identification and trust services for electronic transactions in the internal market and
repealing Directive 1999/93/EC (OJ L 257, 28.8.2014, p. 73–114).
65
Regulation (EU) 2021/693 of the European Parliament and of the Council of 28 April 2021 establishing
the Justice Programme and repealing Regulation (EU) No 1382/2013 (OJ L 156, 5.5.2021, p. 21–38).
EN 48 EN
– Implementation with a start-up period from 2022 to 202966,
– followed by full-scale operation.
1.7. Management mode(s) planned67
Direct management by the Commission
– by its departments, including by its staff in the Union delegations;
– by the executive agencies
Shared management with the Member States
Indirect management by entrusting budget implementation tasks to:
– third countries or the bodies they have designated;
– international organisations and their agencies (to be specified);
– the EIB and the European Investment Fund;
– bodies referred to in Articles 70 and 71 of the Financial Regulation;
– public law bodies;
– bodies governed by private law with a public service mission to the extent that
they provide adequate financial guarantees;
– bodies governed by the private law of a Member State that are entrusted with
the implementation of a public-private partnership and that provide adequate
financial guarantees;
– persons entrusted with the implementation of specific actions in the CFSP
pursuant to Title V of the TEU, and identified in the relevant basic act.
– If more than one management mode is indicated, please provide details in the ‘Comments’ section.
Comments
66
All the measures beyond 2027 will be subject to the availability of the allocations in the next
Multiannual Financial Framework (MFF) and do not prejudge the future Commission’s proposal for the
MFF post- 2027.
67
Details of management modes and references to the Financial Regulation may be found on the
BudgWeb site:
https://myintracomm.ec.europa.eu/budgweb/EN/man/budgmanag/Pages/budgmanag.aspx
EN 49 EN
2. MANAGEMENT MEASURES
Monitoring and reporting rules
Specify frequency and conditions.
The Regulation will be reviewed for the first time five years after its full application
and then every five years. The Commission will report on the findings to the
European Parliament and to the Council.
2.1. Management and control system(s)
2.1.1. Justification of the management mode(s), the funding implementation mechanism(s),
the payment modalities and the control strategy proposed
This Regulation does not affect the existing management mode(s) and control
systems employed by the Commission.
The Regulation establishes inter alia a digital channel for electronic communication
between the competent national authorities for the entire corpus of EU law in the
area of cross-border judicial cooperation in civil, commercial and criminal matters.
This requires the development of technical specifications and standards, software
development work and coordination of the activities of national authorities. In view
of the current low level of digitalisation with respect to communication in cross-
border cases in the Member States, the Regulation foresees the development of a
software product (‘reference implementation’) by the Commission. Furthermore, the
Regulation foresees the development of an EU-level access point for citizens and
businesses on the European e-Justice Portal.
In order to face these tasks, it is necessary to equip appropriately the Commission’s
services. The required resources amount to a total of 22 FTEs for the period until and
including 2027, and excluding services provided by external suppliers):
For 2022:
- 1 FTE for legal and for policy work, including on coordination with the national
competent authorities
- 1 FTE for IT implementation activities (Business, Project and Contract
management)
For the 2023-2027 period (per annum):
- 2 FTEs for legal and for policy work, including on coordination with the national
competent authorities
- 2 FTEs for IT implementation activities (Business, Project and Contract
management)
2.1.2. Information concerning the risks identified and the internal control system(s) set up
to mitigate them
The main identified risks relate to:
(a) Time and cost overruns due to unforeseen IT implementation issues with regard
to the development of the decentralised IT system, and in particular the reference
implementation solution to be developed by the Commission. This risk is mitigated
by the fact that the key building blocks which can be used for the development of the
EN 50 EN
decentralised IT system already exist and are mature – namely, the e-CODEX system
(which itself is based on the eDelivery building block) and the e-Evidence Digital
Exchange System.
This risk will be addressed by implementing standard internal control systems, in
particular project management controls applicable to all systems developed by the
Commission (i.e. governance oversight, project and risk management).
(b) Implementation and rollout delays on the side of the Member States’ respective
authorities. This risk will be mitigated by ensuring feasibility and agreement on the
implementation time plan at the time of elaboration of the implementing acts, regular
follow-up and providing technical support to the national authorities in charge of
implementation.
2.1.3. Estimation and justification of the cost-effectiveness of the controls (ratio of "control
costs ÷ value of the related funds managed"), and assessment of the expected levels
of risk of error (at payment & at closure)
This Regulation does not affect the cost-effectiveness of the existing Commission
controls.
2.2. Measures to prevent fraud and irregularities
Specify existing or envisaged prevention and protection measures, e.g. from the Anti-Fraud Strategy.
The existing fraud prevention measures applicable to the Commission will cover the
appropriations necessary for this Regulation.
EN 51 EN
3. ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE
3.1. Heading(s) of the multiannual financial framework and expenditure budget
line(s) affected
Existing budget lines
In order of multiannual financial framework headings and budget lines.
Type of
Budget line expenditure
Contribution
Heading of
multiannual from within the
from
financial EFTA meaning of
Number Diff./Non-
countries
candidate from third
framework 68 70 Article 21(2)(b) of
diff. 69 countries countries the Financial
Regulation
1 02.04.05.01 Non-diff. NO NO NO NO
New budget lines requested
In order of multiannual financial framework headings and budget lines.
Type of
Budget line expenditure
Contribution
Heading of
multiannual within the
financial Number from from meaning of
Diff./Non- from third
framework EFTA candidate Article 21(2)(b) of
diff. countries the Financial
countries countries
Regulation
[XX.YY.YY.YY]
YES/NO YES/NO YES/NO YES/NO
68
Diff. = Differentiated appropriations / Non-diff. = Non-differentiated appropriations.
69
EFTA: European Free Trade Association.
70
Candidate countries and, where applicable, potential candidates from the Western Balkans.
EN 52 EN
3.2. Estimated financial impact of the proposal on appropriations
3.2.1. Summary of estimated impact on operational appropriations
– The proposal/initiative does not require the use of operational appropriations
– The proposal/initiative requires the use of operational appropriations, as explained below:
EUR million (to three decimal places)
Heading of multiannual financial
Number 1
framework
Year Year Year Year Year Year
DG: JUST TOTAL
2022 2023 2024 2025 2026 2027
Operational appropriations
Commitments (1a) 0 1.700 4.000 1.500 4.000 4.000 15.200
Budget line71: 02.04.05.01
Payments (2a) 0 1.700 4.000 1.500 4.000 4.000 15.200
Commitments (1b)
Budget line
Payments (2b)
Appropriations of an administrative nature financed from the
envelope of specific programmes72
Budget line (3)
=1a+1b
TOTAL appropriations Commitments +3 0 1.700 4.000 1.500 4.000 4.000 15.200
71
According to the official budget nomenclature.
72
Technical and/or administrative assistance and expenditure in support of the implementation of EU programmes and/or actions (former ‘BA’ lines), indirect research, direct research.
EN 53 EN
for DG JUST73 =2a+2b
Payments 0 1.700 4.000 1.500 4.000 4.000 15.200
+3
Commitments (4) 0 1.700 4.000 1.500 4.000 4.000 15.200
TOTAL operational appropriations
Payments (5) 0 1.700 4.000 1.500 4.000 4.000 15.200
TOTAL appropriations of an administrative nature (6)
financed from the envelope for specific programmes
TOTAL appropriations Commitments =4+ 6 0 1.700 4.000 1.500 4.000 4.000 15.200
under HEADING 1
of the multiannual financial framework Payments =5+ 6 0 1.700 4.000 1.500 4.000 4.000 15.200
If more than one operational heading is affected by the proposal / initiative, repeat the section above:
TOTAL operational appropriations (all Commitments (4)
operational headings) Payments (5)
TOTAL appropriations of an administrative nature financed
from the envelope for specific programmes (all operational
headings) (6)
TOTAL appropriations Commitments =4+ 6 0 1.700 4.000 1.500 4.000 4.000 15.200
under HEADINGS 1 to 6
of the multiannual financial framework Payments =5+ 6 0 1.700 4.000 1.500 4.000 4.000 15.200
(Reference amount)
73
The appropriations will be made available to DG JUST by DG CNECT following the adoption of the relevant Work Programmes.
EN 54 EN
Heading of multiannual financial
7 ‘Administrative expenditure’
framework
This section should be filled in using the 'budget data of an administrative nature' to be firstly introduced in the Annex to the Legislative
Financial Statement (Annex V to the internal rules), which is uploaded to DECIDE for interservice consultation purposes.
EUR million (to three decimal places)
Year Year Year Year Year Year
TOTAL
2022 2023 2024 2025 2026 2027
DG: JUST
Human resources 0,304 0,608 0,608 0,608 0,608 0,608 3,344
Other administrative expenditure 0,006 0,254 0,254 0,254 0,254 0,254 1,276
TOTAL DG JUST Appropriations 0,310 0,862 0,862 0,862 0,862 0,862 4,620
TOTAL appropriations
(Total commitments =
under HEADING 7 Total payments)
0,310 0,862 0,862 0,862 0,862 0,862 4,620
of the multiannual financial framework
EUR million (to three decimal places)
Year Year Year Year Year Year
TOTAL
2022 2023 2024 2025 2026 2027
TOTAL appropriations Commitments 0,310 2,562 4,862 2,362 4,862 4,862 19,820
under HEADINGS 1 to 7
of the multiannual financial framework Payments 0,310 2,562 4,862 2,362 4,862 4,862 19,820
3.2.2. Estimated output funded with operational appropriations
Commitment appropriations in EUR million (to three decimal places)
EN 55 EN
Year Year Year Year Year Year
2022 2023 2024 2025 2026 2027
Indicate
objectives and
outputs
Type Avera
74 Total Total
No
No
No
No
No
No
ge Cost Cost Cost Cost Cost Cost
No cost
cost
SPECIFIC OBJECTIVES No 1 and
75
2
- Output Numbe 8 5,343 9 5,343 17 10,686
r of
digitali
sed EU
judicia
l
cooper
ation
proced
ures
Subtotal for specific objectives No 1 8 5,343 9 5,343 17 10,686
and 2
TOTALS 8 5,343 9 5,343 17 10,686
74
Outputs are products and services to be supplied (e.g.: number of student exchanges financed, number of km of roads built, etc.).
75
As described in point 1.4.2. ‘Specific objective(s)…’
EN 56 EN
3.2.3. Summary of estimated impact on administrative appropriations
– The proposal/initiative does not require the use of appropriations of an administrative nature
– The proposal/initiative requires the use of appropriations of an administrative nature, as explained below:
EUR million (to three decimal places)
Year Year Year Year Year Year
TOTAL
2022 2023 2024 2025 2026 2027
HEADING 7
of the multiannual
financial framework
Human resources 0,304 0,608 0,608 0,608 0,608 0,608 3,344
Other administrative
0,006 0,254 0,254 0,254 0,254 0,254 1,276
expenditure
Subtotal HEADING 7
of the multiannual 0,310 0,862 0,862 0,862 0,862 0,862 4,620
financial framework
76
Outside HEADING 7
of the multiannual
financial framework
Human resources
76
Technical and/or administrative assistance and expenditure in support of the implementation of EU programmes and/or actions (former ‘BA’ lines), indirect research, direct research.
EN 57 EN
Other expenditure
of an administrative
nature
Subtotal
outside HEADING 7
of the multiannual
financial framework
TOTAL 0,310 0,862 0,862 0,862 0,862 0,862 4,620
The appropriations required for human resources and other expenditure of an administrative nature will be met by appropriations from the DG that are already assigned to management of the action
and/or have been redeployed within the DG, together if necessary with any additional allocation which may be granted to the managing DG under the annual allocation procedure and in the light of
budgetary constraints.
EN 58 EN
3.2.4. Estimated requirements of human resources
– The proposal/initiative does not require the use of human resources.
– The proposal/initiative requires the use of human resources, as explained
below:
Estimate to be expressed in full time equivalent units
Year Year Year Year Year Year
2022 2023 2024 2025 2026 2027
20 01 02 01 (Headquarters and Commission’s Representation
2 4 4 4 4 4
Offices)
20 01 02 03 (Delegations)
01 01 01 01 (Indirect research)
01 01 01 11 (Direct research)
Other budget lines (specify)
20 02 01 (AC, END, INT from the ‘global envelope’)
20 02 03 (AC, AL, END, INT and JPD in the delegations)
- at Headquarters
77
XX 01 xx yy zz
- in Delegations
01 01 01 02 (AC, END, INT - Indirect research)
01 01 01 12 (AC, END, INT - Direct research)
Other budget lines (specify)
TOTAL 2 4 4 4 4 4
XX is the policy area or budget title concerned.
The human resources required will be met by staff from the DG who are already assigned to management of the
action and/or have been redeployed within the DG, together if necessary with any additional allocation which
may be granted to the managing DG under the annual allocation procedure and in the light of budgetary
constraints.
Description of tasks to be carried out:
Officials and temporary staff 2 Legal/Policy Officers (AD) – responsible for the elaboration, drafting and adoption
of the implementing acts, the analysis of legal requirements, organising and chairing
the work of the committee(s) and liaising with eu-LISA.
1 Business Manager (AD) – responsible for liaising with the Member State national
authority stakeholders, defining business workflows, business and product
requirements and onsite consulting services.
1 IT Project Manager (AD) – responsible for the development, maintenance and
support of the decentralised IT system, the reference implementation thereof, project,
quality and contract management.
External staff
77
Sub-ceiling for external staff covered by operational appropriations (former ‘BA’ lines).
EN 59 EN
3.2.5. Compatibility with the current multiannual financial framework
The proposal/initiative:
– can be fully financed through redeployment within the relevant heading of the
Multiannual Financial Framework (MFF).
Explain what reprogramming is required, specifying the budget lines concerned and the corresponding
amounts. Please provide an excel table in the case of major reprogramming.
– requires use of the unallocated margin under the relevant heading of the MFF
and/or use of the special instruments as defined in the MFF Regulation.
Explain what is required, specifying the headings and budget lines concerned, the corresponding
amounts, and the instruments proposed to be used.
– requires a revision of the MFF.
Explain what is required, specifying the headings and budget lines concerned and the corresponding
amounts.
3.2.6. Third-party contributions
The proposal/initiative:
– does not provide for co-financing by third parties
– provides for the co-financing by third parties estimated below:
Appropriations in EUR million (to three decimal places)
Year Enter as many years as necessary
Year Year Year
to show the duration of the Total
N78 N+1 N+2 N+3
impact (see point 1.6)
Specify the co-financing
body
TOTAL appropriations
co-financed
78
Year N is the year in which implementation of the proposal/initiative starts. Please replace "N" by the
expected first year of implementation (for instance: 2021). The same for the following years.
EN 60 EN
3.3. Estimated impact on revenue
– The proposal/initiative has no financial impact on revenue.
– The proposal/initiative has the following financial impact:
on own resources
on other revenue
please indicate, if the revenue is assigned to expenditure lines
EUR million (to three decimal places)
79
Appropriations Impact of the proposal/initiative
available for
Budget revenue line:
the current Year Year Year Year Enter as many years as necessary to show
financial year N N+1 N+2 N+3 the duration of the impact (see point 1.6)
Article ………….
For assigned revenue, specify the budget expenditure line(s) affected.
[…]
Other remarks (e.g. method/formula used for calculating the impact on revenue or any other
information).
[…]
79
As regards traditional own resources (customs duties, sugar levies), the amounts indicated must be net
amounts, i.e. gross amounts after deduction of 20 % for collection costs.
EN 61 EN
Teie 05.01.2022
Riigikohus
Meie 05.01.2022 nr 7-1/87
[email protected]
Lossi 17
50093 Tartu
Üleskutse arvamuse avaldamiseks piiriülese õigusalase
koostöö digitaliseerimise eelnõude osas
Pöördume teie poole üleskutsega avaldada arvamust Euroopa Komisjoni 1. detsembril 2021 avaldatud
piiriülese õigusalase koostöö digitaliseerimise eelnõude kohta (algatusega seotud dokumendid ja
täiendav info kättesaadavad siin).
Algatus hõlmab kahte eelnõud: määrust, mis reguleerib ELi piiriülese õigusalase koostöö
digitaliseerimist ning tsiviil-, kaubandus- ja kriminaalasjade õiguskaitse kättesaadavust ning direktiivi,
millega viiakse erinevad tsiviil-, kaubandus- ja kriminaalasjade õigusaktid vastavusse eelnimetatud
määrusega.
Täpsemalt on määrusega kavas:
- võimaldada piiriülestes asjades menetluse pooltel elektroonilisel teel suhelda kohtute või
teiste pädevate asutustega või algatada elektroonilisel teel kohtumenetlus teises liikmesriigis
asuva poole vastu;
- hõlbustada videokonverentsi või muu sidetehnoloogia kasutamist suulisel ärakuulamisel
piiriülestes tsiviil-, kaubandus- ja kriminaalasjades;
- tagada elektrooniliste sidevahendite kättesaadavus ja kasutamine piiriüleste juhtumite puhul
liikmesriikide kohtute ja muude pädevate asutuste vahelises kommunikatsioonis,
võimaldamaks edastada taotlusi, dokumente ja andmeid turvaliselt digitaalsel kujul;
- tagada, et dokumendid ei kaotaks oma õiguslikku tähendust üksnes oma elektroonilise vormi
tõttu (sekkumata seejuures kohtute pädevusse otsustada dokumentide kehtivuse,
vastuvõetavuse ja tõendusväärtuse üle siseriikliku õiguse alusel);
- tagada elektrooniliste allkirjade ja -pitserite kehtivus ja tunnustamine piiriülese õigusalase
koostöö ja õiguskaitse kättesaadavuse raames;
- võimaldada piiriülese mõjuga tsiviil- ja kaubandusasjades tasuda pooltel riigilõive
elektrooniliselt.
Kohtute ja teiste pädevate asutuste jaoks muutub asutustevahelises suhtluses piiriüleste asjade
puhul digitaalsete sidekanalite kasutamine vaikevalikuks, millest võib kõrvale kalduda piiratud juhtudel.
Tõhusa elektroonilise suhtluse korraldamiseks luuakse spetsiaalne ja turvaline detsentraliseeritud IT-
süsteem. See süsteem koosneb liikmesriikide ning EL organite IT-süsteemidest, mis ühendatakse
omavahel koostalitlusvõimeliste juurdepääsupunktide kaudu (tuginedes e-CODEXile). Kui
liikmesriikidel ei ole olemasolevaid riiklikke IT-süsteeme, on neil võimalus kasutada tasuta Komisjoni
väljatöötatud lahendust.
Üksikisikud, ettevõtted ja organisatsioonid või nende esindajad saavad määruse jõustumisel
endiselt kasutada riiklikke IT-portaale kohtumenetlust puudutavaks elektrooniliseks teabevahetuseks,
sh piiriüleste asjade puhul (st Eestis säilib võimalus kasutada avalikku e-toimikut). Paralleelselt töötab
Komisjon aga välja Euroopa juurdepääsupunkti, mis hakkab asuma Euroopa e-õiguskeskkonna
portaalis. Iga isik saab sinna sisse logida, luua konto ja esitada avaldusi, nõudeid, taotlusi ja
Suur-Ameerika 1 / 10122 Tallinn / +372 620 8100 /
[email protected] / www.just.ee
Registrikood 70000898
standardiseeritud vorme liikmesriikide õigusasutustele. Euroopa juurdepääsupunkti kasutamine on
tasuta. Eelnõude tulemusel säilib samas menetlusosaliste õigus kasutada kohtute ja ametiasutustega
suhtlemisel ka muid kui elektroonilisi sidevahendeid.
Kõnesolevate eelnõudega viiakse ellu Euroopa Komisjoni 2020. aasta detsembri teatises esitatud
eesmärk ELi õigussüsteemide ajakohastamiseks, sh edendamaks digiteerimist nii riiklikul kui ka ELi
tasandil.
Palume teil seisukohtade kujundamisel silmas pidada, et Euroopa Komisjoni esitatud eelnõud võivad
institutsioonide vaheliste läbirääkimiste tulemusel muutuda ning Eestil, nagu ka teistel liikmesriikidel,
on võimalus eelnõu sisu läbirääkimiste käigus mõjutada. Seega palume teil võimalusel arvamuse
avaldamisel peegeldada nii seda, mis on eelnõus asjakohane ja peaks säilima, kui ka seda, mida
tuleks kõneluste käigus täiendavalt adresseerida.
Teie arvamusi ja ettepanekuid Eesti seisukohtade kujundamiseks ootame hiljemalt 24. jaanuariks.
Palume need saata aadressile
[email protected]. Küsimuste korral kirjutage palun aadressil
[email protected].
Lugupidamisega
(allkirjastatud digitaalselt)
Heddi Lutterus
Asekantsler
Lisad (inglise keeles):
1. Piiriülese õigusalase koostöö digitaliseerimise määruse ja direktiivi tekst
2. Määruse lisa
3. Eelnõude juurde kuuluv mõjuhinnang
Lisaadressaadid:
Harju Maakohus Tallinna kohtumaja
Pärnu Maakohus
Tartu Maakohus
Viru Maakohus
Tallinna Ringkonnakohus
Tartu Ringkonnakohus
Õiguskantsleri Kantselei
Riigiprokuratuur
Eesti Advokatuur
Tartu Ülikooli õigusteaduskond
Tallinna Ülikooli Ühiskonnateaduste Instituut
TalTech õiguse instituut
Registrite ja Infosüsteemide Keskus
Andmekaitse Inspektsioon
Notarite Koda
Kohtutäiturite ja Pankrotihaldurite Koda
Henrik Trasberg 5200197
[email protected]
Saatja: <
[email protected]>
Saadetud: 05.01.2022 13:01
Adressaat: Harjumk info <
[email protected]>; Pärnumk info
<
[email protected]>; Tartumk info <
[email protected]>; virumk.info
<
[email protected]>; Tallinna Ringkonnakohus info <
[email protected]>; Tarturk
info <
[email protected]>; Tartu Ülikooli õigusteaduskond <
[email protected]>; Tallinna Ülikooli
Ühiskonnateaduste Instituut <
[email protected]>; TalTech õiguse instituut <
[email protected]>;
Notarite Koda <
[email protected]>
Teema: Kiri
Manused: 7-187 05.01.2022 Väljaminev kiri (1).bdoc
Tere!
Teile on saadetud Justiitsministeeriumi dokumendihaldussüsteemi Delta kaudu dokument.
Pealkiri: Üleskutse arvamuse avaldamiseks piiriülese õigusalase koostöö digitaliseerimise eelnõude
osas
Registreerimise kuupäev: 05.01.2022
Registreerimise number: 7-1/87.
Suur-Ameerika 1, 10122, Tallinn
Tel. 620 8100, Faks 620 8109
e-mail:
[email protected]
www.just.ee