Explanatory Memorandum to COM(2008)380 - Amendment of Council Decision 2001/470/EC establishing a 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(2008)380 - Amendment of Council Decision 2001/470/EC establishing a European Judicial Network in civil and commercial matters. |
|---|---|
| source | COM(2008)380  |
| date | 23-06-2008 |
On 28 May 2001 the Council adopted Decision 2001/470/EC establishing a European Judicial Network in civil and commercial matters between all the Member States except Denmark (hereinafter 'the Decision') i, which has been applicable since 1 December 2002.
The European Judicial Network in civil and commercial matters (hereinafter 'the Network') was established because it was felt that the gradual establishment of an area of freedom, security and justice entailed the need to improve, simplify and expedite judicial cooperation between Member States. The Network was also intended to facilitate citizens' access to justice in litigation with a cross-border impact by gradually establishing an information system for the public.
At the beginning of 2008 the Network had 437 members falling into four categories: 102 contact points, 140 central authorities (Article 2(1)(b)), 12 liaison magistrates and 181 other judicial authorities active in judicial cooperation.
The Commission organises the Network's meetings, chairs them and provides secretarial services. The contact points meet at least once every six months. Between 11 February 2003 and 31 January 2008, 19 meetings were held, i.e. four meetings a year on average. All the members of the Network have met every year since 2002.
Article 19 of the Decision requires the Commission to present to the European Parliament, the Council and the Economic and Social Committee a report on the application of the Decision, which may be accompanied by proposals for its adaptation. The report must consider the issues of the access and involvement of the legal professions in its activities and possible direct public access to the contact points.
This proposal is based on extensive consultation of the different stakeholders, in particular within the Network. As part of its preparation of the report referred to above, the Commission ordered a study on the operation of the Network (hereinafter 'the study'), which was carried out between December 2004 and May 2005 i.
On the basis of this study and of the consultations carried out within the Network since 2004, the Commission presented a report on the application of the Decision on 16 May 2006 i. In this report under Article 19, the Commission concluded that the Network had, in general, improved judicial cooperation between the Member States.
However, the report pointed out certain deficiencies in the Network's operation. The Commission noted that the Network was far from having developed its full potential and it was essential that it be given the necessary means to perform its tasks. The Commission nevertheless stressed the importance of the Network as an essential tool for establishing a genuine European law-enforcement area.
In response to this report, the Justice and Home Affairs Council of 19 and 20 April 2007 adopted conclusions on the European Judicial Network i.
The general objective of the proposal is to enhance the role of the Network in its tasks of facilitating judicial cooperation between Member States and, in particular, the effective and practical application by judges and other legal practitioners of Community instruments and conventions in force between Member States. It also aims to consolidate the Network's role in promoting effective access to justice for the general public in the context of cross-border litigation.
These objectives are part of efforts to implement the Hague Programme on strengthening freedom, security and justice in the European Union (hereinafter 'the Hague Programme'), adopted by the European Council of 4 and 5 November 2004 i, which calls for additional efforts to facilitate access to justice and judicial cooperation in civil matters. The proposal to review the Decision establishing the Network is contained in the Council and Commission Action Plan implementing the Hague Programme of 2 June 2005 i.
It should be emphasised that since the entry into force of the Decision establishing the Network other Community civil justice instruments have been adopted, have come into effect or will do so shortly i. The practical and effective implementation of all these instruments will involve enhancing the role of the Network, particularly in order to deal with the increase in requests for information and cooperation which may be expected as a result.
Moreover, in order to implement effectively Community and international instruments on applicable law, the Network will have to develop gradually its assistance to the courts and other authorities concerning the application of foreign law.
This proposal is therefore intended to provide the Network with an updated legal framework, a more effective organisation and increased resources so that it can establish itself within the European area of justice as the key instrument of cooperation between all civil justice stakeholders.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- DETAILED EXPLANATION
- 1.1 Introduction
- 1.2 General background to the proposal and consultations
- 1.3 General objective of the proposal
- 2.1 Legal basis
- 2.2 Subsidiarity principle
- 2.3 Principle of proportionality
- 3. BUDGETARY AND FINANCIAL IMPACT
- OF THE PROPOSAL
- 4.1 Access by legal professions to the Network's activities
- 4.2 Consolidation of the legal framework for contact points
- 4.3 The Network's role concerning the application of the law of another Member State
- 4.4 Relations between contact points and central authorities
- 4.5 Enhancing the contact points' activities
- 4.6 Improving citizens' access to justice
- 4.7 Relations with other networks and with international organisations
- 4.8 Position of the United Kingdom, Ireland and Denmark
- 4.9 The Network and international cooperation
- 4.10 Evaluation
The legal basis for this proposal is Article 61(c) of the Treaty, which empowers the Community to adopt measures in the field of judicial cooperation in civil matters referred to in Article 65 in accordance with the second indent of Article 67 i and under the co-decision procedure provided for in Article 251.
Denmark is not participating in the adoption of the present Decision and is not bound by it or subject to its application by virtue of Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community. [This decision does not apply to the United Kingdom and Ireland either unless they give notice of their wish to take part in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community.]
As the objectives of the proposed decision, namely to enhance judicial cooperation between the Member States and to ensure effective access to justice for persons engaging in cross-border litigation, cannot be sufficiently coordinated by the Member States and can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty. 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 uniformly by all the Member States so that its objectives can be attained.
The main objective of the proposed decision is the coordinated and homogeneous enhancement of judicial cooperation between Member States, principally through the existing Network structures. The proposed decision does not affect the existing cooperation mechanisms in the Member States as referred to in Article 2(1)(b) and (d) and is based on the improvement of cooperation between the different components of the Network. The participation of the legal professions in the Network will be based on the designation of participants within the Member States and will help to increase the means of action available to the Network.
Therefore, in accordance with the principle of proportionality set out in Article 5 of the Treaty, this proposal for a decision does not go beyond what is necessary to achieve its objectives.
The proposal is based largely on close collaboration between the Member States and the Commission and on the financial resources made available for improving judicial cooperation under Decision 1149/2007/EC of 25 September 2007 establishing for the period 2007-2013 the specific programme 'Civil Justice' under the general programme 'Fundamental Rights and Justice'. One of the specific objectives of the 'Civil Justice' programme is to facilitate the operation of the Network. The financial impact of Network management and operation is therefore taken into account in the multiannual financial envelope of EUR 109.3 million established for the 'Civil Justice' programme. The 2007 work programme for the 'Civil Justice' programme provided for EUR 3.25 million for Network management and operation. The 2008 work programme, currently being finalised, provides for EUR 3.15 million for Network management and operation. In the case of grants to actions, the work programme gives priority to projects focusing on improving the understanding of the Network on the part of judges and other practitioners of the law and improving the smooth operation of the Network's contact points and cooperation between the contact points and legal practitioners. Of an indicative budget of EUR 3.5 million for grants to actions in 2007, EUR 1 million can be devoted to co-financing national projects for improving the operation of the Judicial Network.
- Article 2(1)(e)
The purpose of this provision is to open up the Network to the legal professions directly concerned with civil judicial cooperation.
Before any involvement of the legal professions in the Network's activities, thorough consultation of both members of the Network and the legal professions concerned was carried out on the Commission's initiative. In its report of May 2006 the Commission, taking account of the results of this consultation, recommended that the Network be gradually opened up to other legal practitioners involved in the administration of justice. As the conduct of civil cases is, to a large extent, the business of the parties before the courts of the Member States, the different legal professions are vital players in civil judicial cooperation. Their participation is likely to bring added value to legal practice in the European Union and enable the Network to achieve its objectives.
Some Member States have already designated their national chambers of bailiffs or councils of notaries as members of the Network i.
For the purposes of this proposal, 'the legal professions concerned' means only those which participate directly in the concrete application of Community and international instruments concerning civil justice in the course of judicial or extra-judicial proceedings such as solicitors and barristers, notaries and bailiffs.
In view of the private nature of relations between legal practitioners and their clients, which must not affect the operation of the Network or be affected by practitioners' participation in the Network, the proposal does not provide for direct access to the Network for individual members of the legal professions. Only the professional associations representing the different legal professions in each Member State will become members of the Network under Article 2. The consultations on the subject produced a broad consensus in favour of opening up the Network to the organisations representing those professions.
- Article 2 i provides that, where there is more than one association representing a legal profession in a Member State, it will be the responsibility of that Member State to organise appropriate representation of that profession on the Network.
- The second subparagraph of Article 5 i concerning the functions of the contact points has been amended to provide that the contact points are also at the disposal of the authorities referred to in Article 2(1)(e) (associations representing the legal professions) for the same purposes as for the other authorities, in accordance with rules to be determined by each Member State.
One of the issues studied in the evaluation of the Network was the relations between its contact points and the central authorities referred to in Article 6. This aspect of the revision is key to improving the operation of the Network in a number of respects.
- Article 2 i of the Decision has been adjusted to provide that, where a Member State designates more than one contact point, it designates one of them as the main contact point, which must devote its time entirely to Network activities to the exclusion of any other functions, in particular those performed within the Network by the authorities referred to in points (b), (c), (d) (and the new (e)) in paragraph 1.
It is provided that a judge may assist the main contact point if the latter is not a judge itself, as is the case in some Member States which maintain the freedom to designate any other person to the functions of contact point. This proposal should facilitate the circulation of information to the courts, reduce the reservations about the Network which some judges still have and give the contact points greater legitimacy in the eyes of the judiciary.
The Network is given additional tasks so that in the future it can play a key role in informing the courts about the content of foreign law. Article 3(2)(b) is amended to provide that, where the law of another Member State is applicable, the courts and authorities responsible for the case can apply to the Network for information on the content of that law.
A second subparagraph is added to Article 5(2)(a); it states that the contact points must now provide the courts of their Member State with information to facilitate the application of the law of another Member State. For this purpose, when a contact point receives such a request, it can draw support from all the components of the Network in its Member State. To preserve the independence of the requesting authorities, the information contained in the answer will not be binding either on the different authorities in the Network which have contributed or on the court which made the request.
To make the application of Article 6 i more effective, a new subparagraph has been added stipulating a minimum number of meetings per year between the Network's contact points and the central authorities in each Member State. It is essential to develop exchanges of views and regular contact between these two categories of Network members in the Member States.
A point (f) is added to Article 5 i on the functions of the contact points and provides that they must present a two-yearly report on their activities.
Article 8, which initially covered only the communications facilities used by the contact points, has been adjusted to provide for faster processing of requests for judicial cooperation within the Network. The figures notified by some contact points i indicate that that in 2007 requests were processed on average within seven working days. However, there are disparities between contact points and relatively long processing times have been reported for some requests. Yet the intervention of the Network as compared with pre-existing cooperation structures, in particular the central authorities and diplomatic channels, is justified by the added value which it is likely to provide in terms of the speed and ease of circulation of requests.
The Commission will keep a secure electronic register of exchanges of judicial cooperation between contact points that will be based on their contributions. It will also regularly supply the Network with statistics on requests for judicial cooperation. This will make it possible to enter requests in the register, gather reliable and complete data on requests and related subjects handled by the Network and identify the exact nature of the problems and the instruments involved.
Article 9 is amended to allow Member States to send six representatives, instead of four, to contact point meetings. This means that they will be able to include more judges and experts in their delegations to the thematic meetings provided for in Article 10(1)(b) and (c).
Article 3(1)(b) includes effective access to justice for the general public among the Network's tasks and activities. Although recital 9 stated that one of the objectives of the Decision was ' effective access to justice for persons engaging in cross-border litigation ', this effort was, according to recital 14 and Article 3, confined to establishing an information system for the public at European level.
The Hague Programme placed emphasis on the improvement of access to justice for the general public and since 2002 a number of Community instruments have been adopted to this end i. This proposal will enable the Network to implement these new instruments more effectively.
A new Article 5(2)(c) a has been inserted, which specifies that the contact points are to inform the public directly about relevant Community and international instruments and the domestic law of the Member States, focusing on access to civil justice. This task will now be performed under the direct responsibility of the contact points in the Member States, i.e. at the level closest to ordinary citizens.
The heading of Title III of the Decision has been re-worded to reflect the Network's new priority as regards public information.
It has transpired that obstacles, particularly in terms of available resources, have prevented direct public access to the contact points as envisaged in Article 19 of the Decision. The Commission therefore proposes in Article 13a that, over an initial period, the contact points should gradually be made accessible to the public in the Member States only by means of the most appropriate technological facilities. This proposal will nevertheless enable the Network to implement these new instruments more effectively vis-à-vis the public.
Paragraph 4(b) of Article 17 concerning the Commission's role in the Network's public information system has been amended. The Commission will be responsible for translation into the official languages of the Community of information on the relevant aspects of Community law and procedures, including Community case law, introduced into the information system under Article 14, as well as translation of the system's general pages. For cost-effectiveness reasons the Commission will also translate the information sheets referred to in Article 15 into the same languages, depending on the resources available. The experience gained since 2003 has shown that the translation resources available on the market were inadequate to translate the information sheets into all the languages in reasonable time. This issue will have to be addressed in the context of developing the eJustice initiative, under which measures will be considered for facilitating the translation of information for the public.
An Article 12a has been added to provide for the establishment of exchanges and cooperation between the Network and other European networks that facilitate cooperation between judicial systems or access to justice.
In the report referred to above, the Commission indicated that existing synergies between the Judicial Network and the European Consumer Centres Network (ECC Net) needed to be developed so that, for instance, a consumer who was not able to settle a dispute within the ECC Net could receive practical assistance in gaining access to justice from the Judicial Network. The entry into force on 1 January 2009 of Regulation (EC) No 861/2007 establishing a European Small Claims Procedure makes this proposal all the more necessary.
Article 12a i provides that the Network many develop exchanges with other judicial cooperation networks established by third countries and with international organisations that are developing judicial cooperation. An example of such a network would be the Latin American international judicial cooperation network IberRed i, in which Spain and Portugal participate, but other regional judicial networks could also be concerned. The Hague Conference on International Private Law, which the Community joined in April 2007, is among the international organisations referred to by this Article.
The United Kingdom and Ireland do not participate in cooperation in matters covered by Title IV of the Treaty unless they give notice of their wish to take part in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community.
Denmark is not participating in the adoption of this Decision and is not bound by it or subject to its application by virtue of Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community. However, a new Article 11a has been created to reflect the practice whereby Denmark has been allowed to attend Network meetings as an observer although it has not participated in the application of the Decision. The Agreement between the Community and Denmark extending to the latter the provisions of two Community Regulations concerning civil justice entered into force on 1 July 2007 i, which makes it all the more necessary that Denmark should be closely associated with the Network's activities.
The new Article 11a i will make it possible to invite accession countries to attend the Network's meetings as observers from the moment the act of accession has been signed, in line with a practice established since 2002 i. This measure will allow them to make useful preparations for their full integration into the Network. The proposal will extend it to the candidate countries.
The new Article 19 provides that the Commission is to present a report on the Network's activities to the European Parliament, the Council and the European Economic and Social Committee every three years.