Explanatory Memorandum to COM(2000)592 - European judicial network in civil and commercial matters - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2000)592 - European judicial network in civil and commercial matters. |
|---|---|
| source | COM(2000)592  |
| date | 22-09-2000 |
Contents
- 1. Background
- 2. Objectives
- 3. Legal basis
- 4. Justification for the proposal in terms of the proportionality and subsidiarity principles
- 5. General principles
- 6. Article-by-article commentary
- 1. Background
- 2. Objectives
- 3. Legal basis
- 4. Justification for the proposal in terms of the proportionality and subsidiarity principles
- 5. General principles
- a) Value added for the final user
- b) Respect for existing cooperation mechanisms: no substitution
- c) Avoiding compartmentalisation
- d) A mechanism for areas not covered by Community or international instruments
- e) The Network as an instrument for the construction of the European law-enforcement area
- f) Synergy with activities in related areas
- g) Use of modern communication and information technologies
- h) Providing practical information for the public
- i) Gradual stage-by-stage implementation
- j) Close cooperation between the Commission and the Member States
- k) A flexible instrument open to evolution
- 6. Article-by-article commentary
- Article 2
- Article 3
- Article 4
- Article 5
- Article 6
- Article 7
- Article 8
- Title II: Implementation and operation of the Network
- Article 10
- Article 11
- Article 12
- Title III: Information available within the Network and information system for the general public
- Article 14
- Article 15
- Article 16
- Title IV: Final provisions
- Article 18
- Article 19
By Article 2 of the Treaty on European Union, the Union set itself the objective of maintaining and developing the Union as an area of freedom, security and justice. Article 61(c) of the Treaty establishing the European Community provides that the Council shall adopt measures in the field of judicial cooperation in civil matters in order to establish progressively that area. Among these measures, Article 65(c) includes measures eliminating obstacles to the good functioning of civil proceedings.
The Council and the Commission presented the Vienna European Council on 11 and 12 December 1998 with an Action Plan on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice. i The Action Plan acknowledges that reinforcement of judicial cooperation in civil matters represents a fundamental stage in the creation of a European judicial area which will bring tangible benefits for every Union citizen. One of the measures planned by paragraph 40(d) of the Action Plan within two years is to examine the possibility of extending the concept of the European Judicial Network in criminal matters to embrace civil and commercial proceedings.
On 15 and 16 October 1999 the European Council held a special meeting at Tampere devoted to the establishment of an area of freedom, security and justice in the European Union. Its conclusions, under the heading 'A genuine European area of justice', recommend 'the establishment of an easily accessible information system to be maintained and up-dated by a Network of competent national authorities'.
The Finnish Presidency of the Union (second half of 1999) launched the debate on the establishment of a European Judicial Network in civil and commercial matters. The question of information for the general public was raised at a meeting of experts convened by the Commission on 29 November 1999 on the implementation of the conclusions of the Tampere European Council.
Detailed discussions on the establishment and operation of a European Judicial Network in civil and commercial matters continued during the Portuguese Presidency (first half of 2000). The effect is that the Commission, as it announced in its communication to the Council and the European Parliament on the scoreboard to review progress on the creation of an area of 'freedom, security and justice' in the European Union, i can now present this proposal for a Council Decision.
A European Union which secures freedom of movement throughout its territory and establishes a frontier-free single market, with a substantial expansion in exchanges between Member States in civil and commercial matters, raises more and more acutely the question of how members of the general public and firms are to exercise their rights in a cross-border context.
As the European Council acknowledged at Tampere, 'the enjoyment of freedom requires a genuine area of justice, where people can approach courts and authorities in any Member State as easily as in their own'. It added that 'in a genuine European area of justice individuals and businesses should not be prevented or discouraged from exercising their rights by the incompatibility or complexity of legal and administrative systems in the Member States'.
This, then, is the context for this proposal for a Decision, which seeks to ensure the sound operation of judicial procedures in civil and commercial matters with a cross-border impact. The ultimate aim of the draft is to simplify the life of Europe's citizens by improving judicial cooperation between the Member States in civil and commercial matters and by giving them easier access to justice in a Member State other than their own.
The instrument proposed as a means of achieving this is the establishment of a European Judicial Network in civil and commercial matters with the double task of improving judicial cooperation between Member States and providing the general public with practical information to facilitate access to justice in cross-border litigation.
The Network, and the information system for the general public which it is to manage, thus aims to offer added value to all persons engaging in cross-border litigation, either by enhancing cooperation between the authorities of the Member States or by making information available on the Internet.
The subject-matter is governed by Article 65 of the Treaty establishing the European Community, and the choice of Article 61(c) is justified by the specific object and purpose of the proposal.
The choice of a mandatory Community instrument in the form of a decision is justified by the need to ensure that its provisions are applied by all the Member States so that its objectives can be attained.
The proposed decision is not applicable in the United Kingdom or Ireland, unless those Member States express their desire to participate in its adoption in accordance with the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union. It is likewise not applicable in Denmark by virtue of the Protocol annexed to the Treaty on European Union that applies in its case.
This proposal falls within the context of the establishment of an area of freedom, security and justice called for by the Treaties and reinforced by the Tampere European Council. More specifically, the measure aims at networking the authorities of the Member States in a uniform manner throughout the European Union. Since its purpose of improving cooperation between the authorities of the Member States in litigation with a cross-border impact cannot be achieved by the Member States alone, action is needed at Community level. The proposed decision pursues the objective of the coordinated and uniform Union-wide enhancement of judicial cooperation mechanisms and the provision to the public of practical information that might be useful to persons engaging in cross-border litigation.
This proposal lays down only the minimum measures needed to attain the objectives pursued and does not go beyond what is necessary to that end. It is without prejudice to existing cooperation mechanisms and is based extensively on close cooperation between the Commission and the Member States.
The proposed decision, the provisions of which are commented on in greater detail at point 6, proceeds from a number of principles which it is worth expounding at this stage already:
The basic justification for the European Judicial Network in civil and commercial matters lies in its ability to facilitate action by persons engaging in cross-border litigation. The Network consequently offer such persons value added in the form of genuine assistance in the exercise of their rights in a cross-border context. Such value can be added in one of two ways: smoother functioning of litigation procedures and better information on the Member States' legal systems.
The European Judicial Network must not impede existing cooperation mechanisms. Other Community and international instruments governing judicial cooperation in civil and commercial matters have established cooperation mechanisms between the Member States. This proposal does not set out to modify their scope or to take their place. The proposal accordingly seeks to make clear that the integration of the authorities provided for by Community and international instruments as members of the Network is without prejudice to their powers. The Network's contact points must not handle information requests where mechanisms are already provided for by such instruments.
The Network proceeds, however, from a logic of integrating experience gained in the areas covered by these specific instruments. It is conceived as an instrument to avoid any compartmentalisation in civil and commercial matters, by endeavouring to identify best practices and then disseminating the resultant knowledge. The instrument also serves a complementarity objective - it can, if needed, support existing mechanisms.
The Network can also be seen as a cooperation mechanism offering valuable channels for action in areas not covered by Community or international instruments. It could be particularly useful here to give the Member States a cooperation structure that will provide them with the assistance they need when preparing and issuing requests for cooperation.
To put it succinctly, the Network can be expected to develop into an important instrument, an essential instrument even, for the establishment of a European justice area in civil and commercial matters. The challenge issued by the Treaties demands instruments to permit the development of an overall integrated approach to the whole range of civil and commercial matters. The Network will pursue that objective while respecting existing structures and seeking the requisite synergies. Without prejudice to the powers of other bodies, it should ultimately evolve into a forum for discussion and monitoring of progress accomplished and difficulties met in establishing the European justice area, notably through the input of practical experience from the contact points and the members of Network. It may also turn out to be an instrument of great value for the development of practical initiatives in these matters (see point k)).
Synergy is needed in civil and commercial matters, as has been seen, but elsewhere also - with initiatives in related areas. There are several Community initiatives that can considerably facilitate the Network's tasks:
- The Dialogue with Citizens, piloted by the Commission's Directorate-General for the Internal Market together with the Member States uses its publications and its website (europa.eu.int/citizens) to provide the public with information on the rights they enjoy in the single market and the redress procedures for enforcing them.
The Signpost Service helps citizens solve their problems regarding their rights in the internal market; it can be accessed either by a national freephone number or via the Dialogue with Citizens site.
- The Dialogue with Business site (europa.eu.int/business/en/index), the One-Stop Shop operated by the Directorates-General for the Internal Market and Enterprise, is a similar initiative addressed to business.
- The Euro Info Centres (europa.eu.int/comm/enterprise/networks/eic/eic. html) consist of 270 Euro Info Centres to inform, advise and assist small businesses.
- The European Extra-Judicial Network for resolving consumer disputes, established at the initiative of the Directorate-General for Health and Consumer Protection, is another example of an initiative developed to make life easier for people engaging in litigation in a Member State other than their own.
- The Commission has launched a number of other initiatives regarding out-of-court settlements, notably in relation to e-commerce; examples include the Webtrader scheme, the Electronic Consumer Dispute Resolution System (ECODIR), etc.
- The IDA programme, managed by the Directorate-General for Enterprise, is to facilitate the networking of authorities in the Member States.
- The work done by the Publications Office of the European Communities is evidence of the effort jointly made by all the Community institutions to enhance the transparency of their activities and facilitate access to documents and the law.
In addition, the Network, through its contact points, should be informed of comparable initiatives by the Member States and thus be able to provide the requisite contacts and synergy.
The Network should make use of the new communication and information technologies and take the fullest advantage of them. It will develop a dedicated web site on the Commission's site, accessible to the public, and will use e-mail networks for its own operational purposes.
The Network is to establish an information system accessible to the general public in order to perform its task of facilitating access to justice in litigation with a cross-border impact.
One of the obstacles most commonly met by persons wishing to exercise their rights in a Member State other than their own is the lack of information on the facilities available to them and how to use them. The Community initiatives mentioned at f) seek to remedy the problems here in their respective areas.
Likewise, in the context of constructing the civil and commercial component of the European law-enforcement area, it is necessary to establish an initiative which, as a result of a joint effort by the Community institutions and the Member States, will provide the public with information helping it to overcome the inevitable initial hesitation about seeking to enforce rights through legal action involving a cross-border element.
Without seeking to usurp the advisory functions of the legal professions, the public authorities can produce information that is comprehensible to the general public regarding dispute-settlement procedures, their practical implications and the constraints they generate, so as to attain the result sought by the Treaty, described by the Tampere European Council as an area 'where people can approach courts and authorities in any Member State as easily as in their own'.
To achieve all this, the proposed decision provides for the establishment of a European Judicial Network in civil and commercial matters and, among the practical initiatives expected of the Network, it refers to the provision of certain information to the public.
However, although its objectives are ambitious, the proposed Network is to be realistic as regards implementation. The need for gradual establishment cannot therefore be overstated. The activities and actions explicitly mentioned in the proposal should not be regarded as an objective to be attained immediately but rather as a work programme to be implemented in stages, particularly as regards the provision of information for the general public.
To carry out its work programme and attain its objectives, the Network can only rely on the closest cooperation between the Member States and the Commission. For convening and organising meetings and for developing the information system and more particularly the practical information sheets that are fundamental to it, the proposed decision establishes mechanisms based on cooperation between the Member States and the Commission.
As an important and even essential instrument for establishing the European law-enforcement area, the Network is to be flexible and open to evolution.
Of course, the objective of not jeopardising existing cooperation mechanisms has required very clear and precise terms, in order to avoid all risk of ambiguity.
But the provisions describing the tasks of the contact points and the objectives of meetings of the Network have been drafted in flexible terms to cover a wide range of practical tasks while avoiding potentially harmful imprecision. The Network is to be a flexible and pragmatic structure that can devise solutions to a wide range of practical problems; it is therefore impossible at this stage to envisage and describe all the practical forms that its activities might take.
Likewise, the list of specific actions to be launched by the Network under Title III of the proposal for a decision must not be regarded as exhaustive. It is likely that the Network will identify specific areas where a given initiative would be a materially useful means of attaining its objectives. For example, there might be a proposal to develop a database on a specific subject. It would be neither possible nor desirable to give a detailed list of such activities from the outset, especially as one of the purposes of the meetings of the contact points is precisely to identify practical initiatives to meet specific needs as they emerge from progress made by the Network.
In any event, there is a periodic review clause, with provision for proposals for adaptation of the decision if the need arises.
Title 1: Principles of the European Judicial Network in civil and commercial matters
Article 1
This Article provides for the establishment of the European Judicial Network in civil and commercial matters.
Article 2 specifies as clearly as possible how the Network is to be composed. Paragraph 1 defines four categories, which can be combined in two major categories:
- The first major category consists of the contact points provided for by point a). The contact points are the cornerstones of the Network, given the tasks entrusted to them by Article 5.
To attain maximum efficiency, it has been felt that this should not be an unlimited category. If there is not a large number of contact points, it will be easier for them to develop more intensive and better focused contacts, to meet more often and to contribute in a more operational fashion to setting up the information system.
But the fact remains that, in respect to the number of contact points in each Member State, flexibility must always be the order of the day. Since the function of the contact points is to facilitate access to distinct legal systems, States that have more than one system or are highly decentralised may need to designate more than one of them. Paragraph 2 of Article 2 enshrines this flexibility, requiring only that Member States exercising it ensure that there are appropriate coordination mechanisms
In any event, irrespective of the number of contact points designated by each Member State, the proposal is for no more than four representatives per Member State at meetings of contact points (with a great degree of flexibility as to the composition of delegations so that all Member States can be represented on an equal footing).
- In contrast, the second major category (the other members of the Network, meaning the authorities referred to in points b), c) and d) of paragraph 1), is conceived in highly open terms. The point is to maximise the dissemination and impact of the activities of the contact points while ensuring that a comprehensive approach is taken to the entire field of civil and commercial matters and that good practice in some areas is properly spread to others.
Point d) is the clearest example of the open conception of this second major category, as it empowers the Member States to decide to involve in the Network judicial or other authorities which, even if there is no instrument conferring specific cooperation tasks on them, regularly have to deal with cross-border matters.
Article 2 also provides for Member States to notify the Commission of the names and full particulars of the contact points and other members of the Network.
Article 3 i specifies the Network's two chief tasks of facilitating judicial cooperation between the Member States in civil and commercial matters and establishing an information system accessible to the general public.
Paragraph 2 enumerates more specifically the purposes of the Network's areas of activity, corresponding to the two major objectives mentioned above. This is without prejudice to other Community or international instruments governing civil and commercial matters.
Paragraph 3 makes clear that the Network's activities are not to minimise either the importance or the scope of Community or national initiatives for alternative dispute-settlement schemes, of which the European Extra-Judicial Network for resolving consumer disputes, other alternative dispute-settlement schemes and the ongoing debate about codes of conduct are useful examples at Community level.
The Network has three types of modus operandi: contacts between members, meetings and the provision of certain types of information to the general public.
This Article specifies the tasks of the contact points, placing them at the heart of the Network as a veritable cornerstone of its structure. The provisions describing their tasks are drafted in precise yet flexible terms so as to cover a variety of practical tasks that are difficult to envisage and describe in advance.
Paragraph 3 illustrates the flexibility that is to guide the Network's operation: where a contact point cannot respond to a request for information, it is to forward it to whoever is best placed to respond - another contact point or another member of the Network. It must remain available to provide assistance in the event of subsequent contacts. This may be particularly (but not exclusively) useful in relation to Member States that have several legal systems or are highly decentralised.
Paragraph 4 is intended to provide very clearly that the Network contact points will have no power to respond to requests for information relating to areas covered by other Community or international instruments.
In the course of preparatory discussions on this proposal, the Member States expressed concern about the interaction between the Network and existing Community and international instruments.
The principle of acting without prejudice to existing cooperation mechanisms is, of course, one of the fundamental principles of the proposal.
Article 6 abides by this principle but also sets out to give effect to two others:
- facilitating the development of a comprehensive approach to civil and commercial matters while avoiding fragmentation when constructing the civil and commercial component of the European law-enforcement area;
- ensuring that useful experience gained in a given area is shared with players in other areas.
While paragraph 1 clearly establishes the principle of 'non-interference' with existing mechanisms, paragraph 2, in strict compliance with this principle, seeks to promote information exchanges between the contact points and the authorities designated by existing instruments. Paragraph 3 provides that the contact points are to be available to those authorities where necessary.
Given their functions, the contact points must be expected to have the requisite language knowledge.
This Article reflects the importance of the Network having modern communication and information technologies to help it perform its tasks.
This Article, like all the others, will be implemented gradually.
Initially the Commission's intention is to propose an internal network with access confined to the contact points, using the CIRCA application. CIRCA, which was developed by the IDA Programme, is an Internet tool that allows information to be made available to a limited number of users. It has a number of security features, such as access control (passwords) and confidentiality (encryption).
After that, it will be up to the Network, at meetings of its contact points and members, to assess its needs and decide on the measures to be taken, such as extending CIRCA site access to all Network members or, if security considerations warrant it, to use higher-security communication facilities (virtual private network).
Article 9
This Article determines the minimum frequency of meetings of the contact points and the maximum number of representatives (four) that the Member States may send to them. Without prejudice to the possibility given to the Member States by Article 2 of designating additional contact points, there has to be a limit on the number of representatives per Member State in view of operational constraints. But within this limit, paragraph 2 also offers the Member States a degree of flexibility in deciding how their delegation is to be composed.
Given the particularly important role of the contact points in the Network, the purposes of their meetings should be specified.
The first objective of the Network is to enable the contact points to get to know each other and establish personal contacts that will be helpful in the performance of the tasks entrusted to them by Article 5.
There is also a need for a forum where contact points can exchange experience and discuss problems encountered in the performance of their tasks. These meetings can be particularly useful in the context of the construction of the European justice area as they can help identify problems and barriers to the smooth operation of procedures having a cross-border impact.
Meetings are also to be devoted to the construction of the information system accessible to the general public. In particular, regarding the practical information sheets, meetings of contact points are to discuss the subjects to be covered, identify priorities, discuss their structure, determine rates of execution, etc. What this means in practical terms is that the contact points will agree on the structure of each sheet and the results to be attained, and each Member State will then prepare its own sheets.
Meetings of contact points are also to identify other initiatives meeting the same criteria and having the same purposes as those mentioned in Title III but not mentioned there.
It must also be provided that that the other members of the Network, meaning all the categories defined in Article 2 i, may meet from time to time even though, due to obvious constraints, they will do so less frequently.
To ensure that meetings can be properly operational, the attendance should be limited to 180.
This Article governs the practical aspects of the organisation of meetings. Although a legal basis in the Treaty establishing the European Community gives the Commission a key role, the closest cooperation between the Commission and the Member States is necessary in respect of meetings, as indeed in all other aspects of the proposal. Since the purpose of this initiative is to network the authorities of the Member States, they must be given a very important role.
Title III: Information available within the Network and information system for the general public
Article 13
This Article refers to information available in the Network. The names and particulars of the contact points of the authorities mentioned in Article 2 i constitute particularly vital information for the operation of the Network.
But this information is not all that is needed for the Network's internal operation, and the Article has therefore to be drafted in open terms (paragraph 2). The object is to build up a corpus of basically technical information which will be useful only to members of the Network in the performance of their tasks.
The Network's aim is to provide the general public with information to facilitate access to justice in cross-border litigation. Article 14 describes the content of the information system.
Paragraph 3 a) to d) sets out to facilitate access by the public (and by the legal professions) to the relevant law governing judicial cooperation in civil and commercial matters.
To set up the requisite web site, Article 14 provides for the possibility of links to sites where the original information is to be found and for initiatives in related areas. Here the work done by the Publications Office should be borne in mind: the Office already makes Community law accessible to the general public, and it is currently working on other initiatives to further facilitate access to Community law.
The establishment of these links and the enhanced synergy with the Publications Office should together make it possible to produce a platform site giving access to relevant legal information relating to judicial cooperation in civil and commercial matters within a reasonable time-frame.
The sites on which the information mentioned in Article 14 i can be found are as follows:
a) Community legislation in force is already accessible through the Community's EUR-Lex database (europa.eu.int/eur-lex/)and CELEX (europa.eu.int/celex/). Commission proposals are also available on CELEX and EUR-Lex, but PreLex also give details of progress in interinstitutional procedures (europa.eu.int/prelex/apcnet.cfm).
The Publications Office is preparing a merged site containing the three bases currently providing access to Community law and the Official Journal - EUR-Lex, CELEX, and Eudor.
b) CELEX already contains references to national measures transposing Community instruments; the Publications Office's EULEX project envisages giving access to national implementing measures themselves.
c) Relevant international instruments are available on the sites of the enacting organisations - the Hague Conference (www.hcch.net/), the Council of Europe (conventions.coe.int/) etc.
d) Community case-law can be consulted on CELEX, and recent judgments can also be consulted on the Court of Justice's site (curia.eu.int/en/index). A specific base on this latter site gives access to recent decisions on the Brussels and Lugano Conventions on jurisdiction and the enforcement of judgments in civil and commercial matters (curia.eu.int/common/recdoc/convention/en/index).
Regarding public access to major judgments of the courts of the Member States, a similar mechanism has been devised for the preparation of practical information sheet: meetings of the contact points would identify priorities and the Member States would then have time to supply a predetermined number of missing judgments.
The most carefully targeted links to all these sources could be used as a means of developing an initial platform version of the Network's dedicated site. There will also be links to the Dialogue with Citizens (europa.eu.int/citizens), the Dialogue with Business (europa.eu.int/business/en/index), the Euro Info Centres (europa.eu.int/comm/enterprise/networks/eic/eic. html), the Health and Consumer Protection pages concerning the European Extra-Judicial Network for resolving consumer disputes (europa.eu.int/comm/consumers/policy/developments) and the future Publications Office initiative to give access to Member States' legal databases.
The principle of gradual progress that inspires the Network means that the site can also be developed by concerted action between the contact points. Nothing precludes, on the contrary, the Network's site being developed by means of other links (such as the Member States' Ministries of Justice or other national sites), either pending completion of the Publications Office's initiatives or independently. And the development of databases on specific subjects within the Network may turn out to be useful in due course. But the definition of the actual content of the site and its future development is one of the activities of the contact points.
Looking beyond the development of the site and creating links to the sites mentioned above, the Commission, as has been stated, has the intention of organising the necessary cooperation and complementarity between the Network and related initiatives. Structures such as the Signpost Service and the Euro Info Centres, which exist to inform, advise and assist the public, could make a substantial contribution to the Network's tasks.
Access to law as such, even if carefully targeted links are there to provide it, will not suffice to give the man in the street proper access to judicial procedures in a Member State other than his own. Hence the need to go further and prepare practical information that is easily comprehensible for the general public.
The proposed decision accordingly contains a detailed provision on the preparation of practical information sheets.
But while the task is not entirely easy, the preparation of information sheets for the general public is not wholly unprecedented. The Dialogue with Citizens site already contains sheets of this type to inform the general public about their rights in the internal market and ways of enforcing them. There are, for instance, sheets on subjects concerning judicial cooperation (access to legal aid and redress procedures) or related areas (administrative procedures and alternative dispute-settlement mechanisms).
This proposal aims to develop a similar mechanism in relation to judicial cooperation in civil and commercial matters and therefore on cross-border litigation. Given what has already been achieved in the Dialogue with Citizens, work does not start from scratch. The Commission's intention is to work for the proper synergy between the two initiatives.
These information sheets will have to be available in all the Community languages.
One final point: the list of sheets given in Article 15 is not to be regarded as exhaustive.
Regular updating is of vital importance for the credibility of the Network's site. Article 16 prescribes the details of this.
Article 17
This Article lays down the principle of periodic evaluation of the Network and of proposals for changes where the need arises.
The proposal is to be open to future developments. In the light of experience, consideration will have to be given to, among others, questions concerning the future development of the information system involving direct public access to contact points, the access of the legal professions to the Network's activities, and potential synergy with the European Extra-Judicial Network for resolving consumer disputes. The effect of the principle of gradual implementation of the Network will be that it does not embark before time on tasks that it cannot yet perform satisfactorily.
This Article defines the preparatory stages for implementation of the Network. Before the Network can begin operating, the Member States must notify the Commission of particulars of their members of the Network. The Commission must begin preparing the Network's web site to ensure that it can come on stream rapidly.
This Article defers implementation of the decision by nine months to give time for proper preparations to be made for implementation of the Network.