Legal provisions of COM(2002)13 - Proposal for a Council Directive to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid and other financial aspects of civil proceedings

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dossier COM(2002)13 - Proposal for a Council Directive to improve access to justice in cross-border disputes by establishing minimum common rules ...
document COM(2002)13 EN
date January 27, 2003

Contents

Article 1 - Aims and scope

The purpose of this Directive is to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid and other financial aspects of civil proceedings.

It shall apply to civil disputes of all types, irrespective of the type of court.

Article 2

For the purposes of this Directive:

"Legal aid" means all resources made available to persons to ensure their effective access to justice where their financial resources are inadequate to cover the costs of litigation, and includes at least the services of a lawyer and the costs of proceedings;

"Litigation in civil matters" means all litigation in matters of civil law, including commercial law, employment law and consumer protection law;

"Costs of proceedings" means the costs of the proceedings themselves and lawyers' fees.

Article 3 - Right to legal aid

All persons involved in a civil dispute, as either claimant or defendant, shall be entitled to receive appropriate legal aid if they do not have sufficient resources within the meaning of Article to enforce their rights by court action, without prejudice to Article 14.

Legal aid shall include the services of a lawyer and/or other person entitled by the law to represent parties in the courts, providing pre-litigation advice and representation in court, and exemption from, or assistance with, the cost of proceedings.

Member States may provide that recipients of legal aid must refund it in whole or in part at the end of the procedure if their financial situation has substantially improved meanwhile.

Article 4 - Responsibility for legal aid

Legal aid shall be granted by the Member State in which the court is sitting in accordance with its law and with this Directive.

Article 5 - Costs related to the cross-border nature of the dispute

Legal aid granted in the Member State in which the court is sitting shall cover the costs directly related to the cross-border nature of the dispute.

Such costs shall include interpretation and translation and travel costs where the physical presence of the persons concerned in court is mandatory.

The Member State in which the legal aid applicant resides shall grant legal aid to cover costs incurred by the recipient in that state and, in particular, the cost of consulting a local lawyer.

Article 6 - Non-discrimination

Member States shall grant legal aid without discrimination to Union citizens and third-country nationals residing lawfully in a Member State.

Article 7 - continuity of legal aid

Legal aid shall continue to be granted to recipients to cover expenses incurred in having a judgment declared enforceable or enforced in the Member State of the forum, without prejudice to Article 3(3).

Article 50 of Council Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters shall apply in exequatur matters.

Legal aid shall continue to be provided if an appeal is brought against the recipient. Provision shall be made for re-examination of the application where the appeal is brought by the recipient.

Article 8 - Processing of applications

The national authorities empowered to rule on legal aid applications shall ensure that the processing of applications is as transparent as possible.

Where applications are rejected, the reasons for rejection shall be given.

Member States shall make provision for appeals against decisions rejecting legal aid applications.

Article 9 - introduction and transmission of legal aid applications

Legal aid applicants who habitually reside in a Member State other than the one in which the dispute is heard may submit their application to the authorities of the Member State in which they habitually reside.

The relevant authorities of the Member State of residence shall transmit the application to the relevant authorities in the Member State of the forum within eight days.

Documents transmitted under this Directive shall be exempt from legalisation or other comparable formalities.

The Member States may not charge for services rendered in accordance with paragraph 2.

The transmitting authorities may refuse to transmit an application if it is manifestly inadmissible, and in particular if the dispute is not in a civil matter.

Legal aid applications transmitted in accordance with the procedure provided for by this Directive shall be written in the language of the receiving authority or in another language which it accepts.

This Directive replaces the Strasbourg Agreement of 1977 on the Transmission of Legal Aid Applications in relations between Member States.

Article 10 - Notifications to the Commission

Member States shall provide the Commission with a list of authorities empowered to send and receive applications. This list shall be published in the Official Journal of the European Communities.

The Member States shall notify the Commission of the list of official languages of the European Union other than their own language or languages in which they accept that legal aid applications may be transmitted to the relevant authorities.

Article 11 - Standard form

To facilitate transmission, a standard form for legal aid applications shall be established by the Commission, assisted by the committee provided for by Council Regulation No 1348/2000 on the service in the Member States of judicial and extra-judicial documents in civil and commercial matters.

OJ L 160, 30.6.2000, p. 37.

Article 12 - Emergency procedure

Member States shall ensure that legal aid applications made by applicants not residing in the Member State of the forum are examined within a reasonable before the case comes to trial.

Article 13 - Conditions relating to financial resources

Member States shall grant legal aid to natural persons involved in a dispute within their jurisdiction who are unable to meet the costs of proceedings as a result of their personal financial situation.

Member States may define income thresholds above which legal aid applicants are presumed able to bear the costs associated with disputes. These thresholds shall be defined in the light of various objective factors such as the cost of living and the costs of proceedings.

Legal aid applicants who do not meet the conditions set out above shall be granted legal aid if they can prove that they are unable to pay the cost of the proceedings, in particular as a result of differences in the cost of living between the Member States of residence and of the forum.

Legal aid applicants shall be presumed able to bear the costs of proceedings if in the instant case they enjoy actual access to a private mechanism involving a no-win no-fee agreement with the lawyer and providing that court costs will be paid by a third party.

Article 14 - Conditions relating to the substance of disputes

Member States may provide that legal aid applications for actions which appear to be manifestly unfounded may be rejected by the relevant authorities.

Article 15 - Application to legal persons

Legal aid shall be granted to not-for-profit legal persons based in a Member State where proceedings are designed to protect legally-recognised general interests and they do not have sufficient resources to bear the cost of the proceedings, without prejudice to Article 14.

Article 16 - Extra-judicial procedures

Legal aid shall be granted in cases where disputes are settled via extra-judicial procedures, if the law makes provision for such procedures or if the parties to the dispute are ordered by the court to have recourse to them.

Article 17 - Reimbursement of court costs and lawyers' fees

Member States shall provide that the winning party shall be entitled to fair reimbursement from the losing party of all or part of the costs of the proceedings.

Member States may provide for exceptions to this principle to ensure appropriate protection of weaker parties.

Member States may provide that where the losing party received legal aid, reimbursement is not due or is dealt with by the State.

Article 18 - Information

The competent national authorities shall cooperate to provide the general public and professional circles with information on the various systems of legal aid, in particular via the European Judicial Network in Civil and Commercial Matters established by Council Decision No 2001/470/EC.

Article 19 - More favourable provisions

This Directive shall not prevent the Member States from making provision for more favourable arrangements for legal aid applicants.

Article 20

This Directive shall enter into force on the [twentieth] day following its publication in the Official Journal of the European Communities.

Article 21

The Member States shall put into force the laws, regulations and administrative provisions needed to comply with this Directive no later than 1 January 2004. They shall forthwith inform the Commission thereof.

When Member States adopt these measures, they shall contain a reference to this Directive or shall be accompanied by such a reference on the occasion of their official publication. The methods of making such a reference shall be laid down by the Member States.

Article 22

This Directive is addressed to the Member States in accordance with the Treaty establishing the European Community.