Explanatory Memorandum to COM(2020)712 - Computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system)

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This page contains a limited version of this dossier in the EU Monitor.

dossier COM(2020)712 - Computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system).
source COM(2020)712 EN
date 02-12-2020


1. CONTEXTOFTHE PROPOSAL

• Reasons for and objectives of the proposal

Ensuring effective access to justice for citizens and businesses and facilitating judicial cooperation between the Member States are among the main objectives of the EU’s Area of Freedom, Security and Justice enshrined in the Treaty on the Functioning of the European Union1.

Over the last decade, the Union has made considerable efforts to coordinate and harmonise crossborder judicial proceedings with a view to closer judicial cooperation in civil and criminal matters. A large number of Union acts have been adopted to facilitate the coordination between national rules on (i) international jurisdiction, (ii) the recognition and enforcement of judicial acts and orders, (iii) the cross-border service of judicial documents and (iv) taking of evidence. A large number of Union acts have also been adopted to establish Union-level judicial procedures, such as the European order for payment2, the European small claims procedure3, the European account preservation order4, etc. The effective implementation of these measures is a Union priority. In this context, developments in e-Justice are instrumental for the success of cross-border judicial proceedings, whose aim is to improve the functioning of Member States’ judicial systems and help to streamline procedures, reduce costs and increase accessibility.

To ensure effective means of communication between parties and courts, as well as between authorities in different Member States, information technology tools are key. The Commission has therefore made constant efforts to improve online access to procedural information and has promoted the use of dynamic forms provided through the European e-Justice portal.

e-CODEX (e-Justice Communication via On-line Data Exchange) was launched under the multiannual e-Justice action plan 2009-2013, mainly to promote the digitalisation of cross-border judicial proceedings and to facilitate the communication between Member States’ judicial authorities.

e-CODEX facilitates secure communication in civil and criminal proceedings via a tailor-made solution for the cross-border exchange of electronic messages in the area of judicial cooperation. The e-CODEX system consists of a package of software products which can be used to set up an access point for secure communication. Access points using e-CODEX can communicate with other access points over the internet5 via a set of common protocols, with no central system involved. Each access point can be linked, for instance, to a national case management system in order to allow it to exchange documents securely with other similar systems. Regarding the exchange of documents in specific procedures, the e-CODEX system makes available standardised digital forms

TITLE V of the Treaty on the functioning of the European Union.

Contents

1.

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).

2.

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).

3.

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).

Technically, the TESTA NG network can also be used instead of the internet; however, this is not required.

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4

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(they are not linked to the content to be transmitted but just make possible the communication) that allow information to be exchanged between national systems6.

e-CODEX was developed by 21 Member States7 with the participation of other third countries/territories and organisations8 between 2010 and 2016. The total cost of developing the system was about EUR 24 million, of which 50% were funded by the EU in the form of grants9 and 50% by the participating Member States.

Currently the e-CODEX system is managed by a consortium of Member States and other organisations, financed by an EU grant. Between the end of the current consortium and the takeover of the system by an EU agency another entity will have to guarantee the sustainability of the system.

e-CODEX currently facilitates electronic communication between citizens and courts, and between Member State administrations in some cross-border civil and criminal proceedings. So far, 10 Member States have participated in pilots for the use of e-CODEX in different legal procedures10.

The European e-Justice portal11 will use e-CODEX to enable citizens to electronically sign and send applications for European payment orders12 and small claims13 to competent courts in the Member States. In addition, in 2018 the Commission proposed legislation to provide for a mandatory digital channel that could be used to serve documents and to take evidence14, by means of a decentralised IT system which could be based on an interoperable solution, such as e-CODEX, as the means of digital transmission. These two Regulations were adopted on 25 November 2020.

Building on Member States’ support and their experience in using the system in different civil and criminal proceedings, e-CODEX has the potential to become the main digital solution for a secure transmission of electronic data in cross-border civil and criminal proceedings in the Union. In its evaluation of the project grant for e-CODEX, the Commission concluded that the e-Justice pilot project has provided the key building blocks to achieve secure and reliable exchanges in judicial cooperation15. Furthermore, in its Communication “Digitalisation of justice in the European Union

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To facilitate secure and interoperable communication, the initial e-CODEX project put forward three key building blocks: bi-directional message delivery (now CEF eDelivery); message building and tracking (e-CODEX ‘Connector’); and standards/templates for digital forms (e-CODEX XML Schemas).

Austria, Belgium, Croatia, Czechia, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Malta, the Netherlands, Poland, Portugal, Romania, Spain and the United Kingdom. Jersey, Norway, Turkey, CCBE and CNUE.

From the Competitiveness and Innovation framework Programme’s (CIP) ICT Policy Support programme (DG CONNECT) and action grant via the Justice programme (DG JUST).

The impact assessment includes a list of the cross-border procedures for which e-CODEX has been used in pilot projects.

https://e-justice.europa.eu/home.do

In accordance with 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).

In accordance with 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).

Proposal for a Regulation amending Regulation (EC) No 1393/2007 of the European Parliament and of the Council on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (COM/2018/379 final). Proposal for a Regulation amending 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 (COM/2018/378 final).

Evaluation by the Commission (three external experts) in 2016 of the e-Justice Communication via Online Data Exchange project (e-CODEX) submitted in the ICT Policy Support Programme within the Competitiveness and Innovation Framework Programme (CIP), grant agreement n° 270968.

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– A toolbox of opportunities”16, adopted together with this proposal, the Commission considers e-CODEX as the main tool and the gold standard for establishing an interoperable, secure and decentralised communication network between national IT systems in cross-border civil and criminalproceedings.

The long-term sustainability, increased use and operational management of e-CODEX are a priority for the Union. e-CODEX could be used to enable more efficient judicial cooperation between judicial authorities in criminal matters, thus stepping up the fight against cross-border crime, terrorism and cybercrime. This covers mutual recognition procedures under various instruments17 and other judicial cooperation procedures such as those under the Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union, the corresponding provisions of which were replaced by the European investigation order18.

Temporary funding for running the e-CODEX system could be found from the Connecting Europe Facility (CEF), the Justice programme or their successors under the next multiannual financial framework. However, the consortium of Member States and other organisations19 which presently ensures the IT development and maintenance of the e-CODEX software will not provide for the system’s long-term operational management. Using temporary action grants to manage the system is not a sustainable solution, nor a solution that could allow e-CODEX to become the default system for cross-border civil and criminal proceedings in the future. Most recently on 13 October 202020, the Council has invited the Commission to present a legislative proposal ensuring the sustainability of e-CODEX with an adequate governance and management structure compatible with eu-LISA that respects the independence of the judiciary and the constitutional requirements of the Member States while ensuring adequate representation of the EU and Member States’ judicial authorities, as well as of the key stakeholders. To provide for the sustainable, long-term operational management of the e-CODEX system, this proposal aims to establish a stable governance solution for the system, with a transparent decision-making process ensuring the involvement of Member States and other relevant stakeholders.

Furthermore, the e-CODEX system needs to be managed in a way that does not call into question the independence of the national judiciaries. This can be achieved by providing a governance model which ensures that Member States’ judiciaries are adequately represented and that a separate budget is allocated to the entity managing the system.

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COM(2020) 710.

The EU has adopted several legislative instruments in accordance with the principle of mutual recognition:

European arrest Arrest warrant – FD 2002/584 (OJ L 190, 18.7.2002, pp.

1); Freezing orders of property and

evidence – FD 2003/577 (OJ L 196, 2.8.2003, p. 45); Financial penalties – FD 2005/214 (OJ L 76, 22.3.2005,

p. 16); Confiscation orders – FD 2006/783 (OJ L 328, 24.11.2006, p. 59); Transfer of prisoners and custodial

sentences — FD 2008/909 (OJ L 327, 5.12.2008, p. 27); Probation decisions and alternative sanctions – FD

2008/947 (OJ L 337, 16.12.2008, p. 102); European supervision order in pre-trial procedures – FD 2009/829

(OJ L 294, 11.11.2009, p. 20); Prevention and settlement of conflicts of jurisdiction – FD 2009/948 (OJ L 328,

15.12.2009, p. 42); European investigationorder – Directive 2014/41/EU (OJ L 130, 1.5.2014, p.

1); European

Protection Order – Directive 2011/99/EU (OJ L 338, 21.12.2011, p.

2). In addition, in 2016, the Commission

5.

adopted a Proposal for a Regulation of the European Parliament and of the Council on the mutual recognition


of freezing and confiscation orders (COM/2016/0819 final) and, in 2018, a Proposal for a Regulation of the

European Parliament and of the Council on European Production and Preservation Orders for electronic

evidence in criminal matters (COM/2018/225 final).

6.

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 of 1 May 2014, p.

1).

Germany (North Rhine-Westphalia), France, the Netherlands, Austriathe European Bailiff’s Foundation, the

European Lawyers’ Foundation and the Aristotle University of Thessaloniki.

Council Conclusions ‘Access to justice – seizing the opportunities of digitalisation’ (OJ C 342 I, 14.10.2020, p.

1).

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The impact assessment has showed that the best solution to ensure a stable future for e-CODEX is to transfer it to the European Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice, referred to as eu-LISA, and mandating the Agency to provide for the system’s operational management. Stable governance for the e-CODEX system will make it possible to establish it as the default system for exchanging electronic messages for judicial cooperation at EU level.

eu-LISA would not take over the e-CODEX system before July 2023. The handover cannot take place earlier due to the existing significant tasks entrusted to eu-LISA, namely with the development and future management of a number of large-scale centralised EU information systems for security, border and migration management, i.e. the Entry/Exit system (EES), the European Travel Information and Authorisation System (ETIAS) and the European Criminal Records Information System for Third-Country Nationals (ECRIS-TCN). In addition, the Agency is also in charge of modernising the Schengen Information System (SIS) and the Visa Information System (VIS). Moreover, in accordance with Regulations (EU) 2019/817 and (EU) 2019/818 on establishing a framework for interoperability between EU information systems21, eu-LISA was given the task of ensuring technical interoperability between those systems.

The timing for taking over the e-CODEX system by eu-LISA is a central element of this proposal to guarantee that e-CODEX’s permanent management can be effectively ensured. It would not be feasible to take over the system earlier than in July 2023.

As the agency responsible for the e-CODEX system’s operational management, eu-LISA would have to provide for the personnel and technical environment necessary for those tasks. By 31 December 2022, the entity managing the system would need to submit a handover document to eu-LISA specifying the arrangements for the e-CODEX system’s transfer (including the criteria for a successful handover process and completion, as agreed by the Commission). It will also need to submit related documentation, including provisions on intellectual property rights and on the software products to be handed over.

During the six-month transitional period before the e-CODEX system is transferred to eu-LISA, a handover process would take place between the entity managing the system – a consortium of Member States and legal professionals organisations with EU funding – and eu-LISA. This will involve transferring a stable version of the e-CODEX system, including relevant know-how, software and related documentation and digital templates. The software to be transferred includes the DOMIBUS Connector and supporting software, while the DOMIBUS Gateway software, which is also a part of e-CODEX, will continue to be managed by the Commission. The entity managing the system will remain responsible for the e-CODEX system’s management, performing only corrective maintenance work. However, it should also support eu-LISA in setting up the necessary technical environment to ensure proper management of the e-CODEX system.

The Commission will monitor the handover/takeover process to ensure that the entity managing the system follows the procedures correctly, based on the criteria specified in the handover document submitted by the entity. eu-LISA will only take over responsibility for the e-CODEX system on the condition that the Commission has declared the handover/takeover process as successfully completed.

Regulation (EU) 2019/817 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of borders and visa (OJ L 138, 22.5.2019, p. 27 ) and Regulation (EU) 2019/818 of the European Parliament and of the Council of 20 May 2019 on establishing a framework for interoperability between EU information systems in the field of police and judicial cooperation, asylum and migration (OJ L 135, 22.5.2019, p. 85).

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Once eu-LISA takes over responsibility for the system, at the earliest on 1 July 2023, it will have to ensure, on the basis of technical and service-level requirements set out in implementing acts, that the existing software remains functional in a changing technical environment and is adapted to evolving user needs. Moreover, eu-LISA will have to maintain or update the digital templates for the different procedures where e-CODEX will be used to respond to legal or organisational changes and create new ones for those instruments within the scope of the regulation in which e-CODEX is introduced. The Commission will then ensure that these templates are laid down in an implementing act establishing detailed specifications on the use of e-CODEX for such procedures.

• Consistency with existing policy provisions in the policy area

There is a clear need to do more at both the European and national level to ensure that justice systems take full advantage of digital technologies for the communication between authorities and with citizens and business. Significant work is still needed in a number of areas, such as: the development of secure electronic transmission channels within and between judicial and other competent authorities, legal practitioners and the relevant EU agencies and bodies; the further digitalisation and interconnection of national databases and registers; the digitalisation of judicial services provided to the public; the digitalisation of judicial cooperation and the use of secure and high-quality distance communication technology.

One important strand of e-Justice policy initiatives involves establishing interoperable tools for communication between the IT systems of the judicial authorities in the Member States. e-CODEX is the main tool addressing this need which has been developed to date.

With the development of an IT platform for judicial cooperation in criminal matters (the e-Evidence digital exchange system), which uses e-CODEX as its communication infrastructure, and the recent conclusion of negotiations on the Regulations on Service of Documents and Taking of Evidence, there is an increasing need to ensure the e-CODEX system’s sustainable management.

This proposal follows the request made by the Council, in its June 2016 conclusions on improving criminal justice in cyberspace, where it asked the Commission to develop a platform with a secure communication channel for the digital exchange of requests for electronic evidence and replies between competent authorities. After considering different options, Member State experts participating in the development of the platform reached the conclusion that e-CODEX would be the most suitable system for this kind of exchange of electronic evidence. This proposal would provide a long-term solution for the operational management of e-CODEX and would thus ensure that the solution chosen for the exchange platform is maintained.

The proposal extends the mandate of eu-LISA to include e-CODEX among its competencies. In order for eu-LISA to manage e-CODEX within that mandate, this proposal also includes amendments to the eu-LISA establishing Regulation22.

• Consistency with other Union policies

The e-CODEX system is one of the key components of the Commission’s e-Justice policy to improve access to and the efficiency of justice in the Member States and is included in the

Regulation (EU) 2018/1726 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), and amending Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA and repealing Regulation (EU) No 1077/2011 (OJ L 295, 21.11.2018, p. 99).

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European e-Justice action plan for 2019-202323. It is also confirmed as the main tool for secure digital communication in cross-border judicial proceedings in the Commission’s Communication “Digitalisation of justice in the European Union – A toolbox of opportunities”. In the context of a digital single market that aims to provide high-speed, secure and trustworthy infrastructures and services, solutions for promoting e-Justice were part of the 2016 eGovernment action plan24. The e-Justice portal is a one-stop shop for judicial information in the EU and offers citizens the possibility of submitting small claims and applications for European payment orders electronically, using e-CODEX, in Member States where electronic transmission is allowed.

The e-CODEX system forms part of the e-Justice digital service infrastructure within the Connecting Europe Facility (CEF)25.

Moreover, one of the components of e-CODEX has been taken up and maintained by the Commission as part of the eDelivery building block within CEF, which demonstrates it as a useful system not only for justice, but also in other areas.

2. LEGALBASIS, SUBSIDIARITYAND PROPORTIONALITY

• Legal basis

Since the e-CODEX system would facilitate judicial cooperation both in civil and criminal matters, the legal basis for the system is a combination of Articles 81 and 82 of the Treaty on the Functioning of the European Union. More specifically, the e-CODEX system facilitates access to justice in civil matters in line with Article 81(2). In criminal matters, Article 82(1) is the legal basis for the EU’s right to act in the field of judicial cooperation to facilitate cooperation between judicial or equivalent authorities of the Member States in relation to proceedings in criminal matters and the enforcement of decisions.

• Subsidiarity

Creating a mechanism for the secure exchange of information in cross-border judicial proceedings is best achieved at EU level. In the absence of EU action, there is a high probability that Member States may develop national systems without taking into account whether interoperability can be ensured among them. While operational management at EU level entails costs, it is the best way to achieve an interoperable system for cross-border communication between competent authorities and therefore the best way to achieve the general objective: a common area of security and justice that works even more efficiently.

Establishing a common system for digital cross-border exchange at EU level will provide an off-the-shelf solution that can be used for different legal procedures while ensuring interoperability between national systems. Such a system is more effective than having diverging systems at national level, which would not necessarily ensure that cross-border communication between Member States is possible. Moreover, having a common system at EU level will generate economies of scale, as the EU will have to manage only one IT solution for secure cross-border

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2019-2023 Action Plan European e-Justice (OJ C 96, 13.3.2019, p.

9).

8.

Communication from the Commission to the European Parliament, the Council, The European Economic and


Social Committee and the Committee of the Regions, EU eGovernment Action Plan 2016-2020 Accelerating

the digital transformation of government COM(2016) 179 final.

9.

Regulation (EU) No 1316/2013 of the European Parliament and of the Council of 11 December 2013


establishing the Connecting Europe Facility, amending Regulation (EU) No 913/2010 and repealing

Regulations (EC) No 680/2007 and (EC) No 67/2010 (OJ L 348, 20.12.2013, p. 129).

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communication in the justice area. It will also provide added value for Member States, as the costs of digitalising their cross-border procedures are expected to decrease and become less of a barrier for cooperation.

• Proportionality

Ensuring permanent operational management of the e-CODEX system at EU level is a proportionate way of promoting cross-border communication in the justice area. By entrusting eu-LISA with the system’s operational management, an adequate return can be obtained on the EUR 24 million invested in developing the system. Maintaining this system is a less costly and less complex solution compared to developing a new system or using other systems which are not tailor-made for the justice area.

There are several reasons why transferring the e-CODEX-related tasks specifically to eu-LISA is the most suitable option. An agency specialised in managing IT systems would possess the knowhow needed to operate e-CODEX. Since Member States are represented on the management board of agencies, their interests, as well as the interests of national judiciaries, can be taken into account. Moreover, in view of the Member States’ strong support for the eu-LISA solution, it is more likely that the system will be taken up by them if the operational management by eu-LISA is chosen as a solution.

An EU decentralised agency would also be able to react to the evolving technical needs emerging from the Member States that use e-CODEX. Such an agency would therefore provide a flexible solution and would be able to make the necessary technical changes to the e-CODEX system.

In view of the important new tasks that have recently been allocated to eu-LISA relating to the EES, ETIAS and ECRIS-TCN systems, as well as the recent proposals on interoperability between EU information systems, the e-CODEX system should not be transferred to eu-LISA before July 2023.

Choice

of the instrument

The Commission is putting forward a proposal for a Regulation as the proposed legal instrument to establish the e-CODEX system at EU level, and is entrusting the eu-LISA Agency with the system’s operational management. To this effect, the proposal amends Regulation (EU) 2018/172626 establishing eu-LISA. This Regulation is directly applicable in all Member States and binding in its entirety. It therefore guarantees a uniform application of the rules across the EU and their entry into force at the same time. It offers legal certainty by avoiding divergent interpretations in the Member States, thus preventing legal fragmentation.

By establishing the e-CODEX system, the Regulation’s adoption will contribute to the uptake of e-CODEX by more Member States for procedures in which the system is already used as well as for future ones.

Regulation (EU) 2018/1726 of the European Parliament and of the Council of 14 November 2018 on the European Union Agency for the Operational Management of Large-Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA), and amending Regulation (EC) No 1987/2006 and Council Decision 2007/533/JHA and repealing Regulation (EU) No 1077/2011 (OJ L 295, 21.11.2018, p. 99).


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3. RESULTS OF EX POST EVALUATIONS, STAKEHOLDER CONSULTATIONS

ANDIMPACT ASSESSMENTS

• Ex post evaluations/fitness checks of existing legislation

The Report on the application of Regulation (EC) 1896/2006 of the European Parliament and of the Council creating a European order for payment procedure27 includes data on the number of payment orders in the EU and the length of proceedings. This data was used in the impact assessment to estimate potential savings as a result of using the e-CODEX system to submit European payment

orders.

Stakeholder

consultations

All major legal professions were consulted by the e-CODEX consortium on the possibility of handing over the operational management of e-CODEX to a permanent entity. As part of the preparatory discussion in the Council since 2014, specific feedback has been collected from the Council of Bars and Law Societies of Europe (CCBE), the Notaries of Europe (CNUE), the European Chamber of Judicial Officers (CEHJ) and the European Law Institute (ELI). Moreover, the e-CODEX consortium evaluated the use of e-CODEX in different pilot procedures by sending out questionnaires to stakeholders, including courts, consumer organisations and legal professionals. The results of this evaluation were generally positive.

The consortium managing the e-CODEX system maintained a regular dialogue with all important stakeholders and all Member States via the Expert Group on e-CODEX-related issues, which is part of the Council Working Party on e-Justice and meets four to six times per year.

Moreover, the Council Working Party on e-Justice held meetings under its cooperation mechanism in 2016 and 2017, where stakeholders were invited to discuss topics related to e-Justice. e-CODEX was on the agenda of these two meetings. The Council Working Party held further discussions relating to e-CODEX in 2018 and 2019.

Further consultation was carried out through the publication of the inception impact assessment on 17 July 2017. Respondents submitted comments in support of maintaining e-CODEX and favoured giving the responsibility for its management to an EU agency. The respondents included legal practitioners, Member State authorities and an international organisation (the Hague Conference on Private International Law).

• Collection and use of expertise

Studies carried out by the current e-CODEX consortium28 — in particular on the experience gained from using e-CODEX in pilots for legal procedures such as the European small claims procedure or the European payment order procedure — were used during the impact assessment for this legislative proposal.

In addition, the Commission commissioned a study on the long-term sustainability of digital service infrastructures (DSIs), which was carried out in 2016-201729. This study covered the e-Justice DSI,

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https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:52015DC049552015DC0495 Study carried out within Work Package 3 of the e-CODEX project (e-CODEX D3.5/D3.7/D3.8 WP3 Final Report).

European Commission (2017). Long Term Sustainability of Digital Service Infrastructures, Luxembourg: Publications Office of the European Union publications.europa.eu/resource/cellar.


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including e-CODEX, and recommended a handover to an EU regulatory agency as the best option for ensuring the sustainability of DSIs.

Furthermore, a recent study commissioned by the Estonian government and carried out by PricewaterhouseCoopers30 also confirmed that the most realistic scenario in the short-to-medium term would be to manage e-CODEX within eu-LISA’s current management structure.

• Impact assessment

This proposal is supported by the impact assessment presented in the accompanying staff working document SWD(2020) 541.

The Regulatory Scrutiny Board reviewed the draft impact assessment at its meeting of 13 December 2017 and delivered its opinion (positive with reservations) on 15 December 2017, indicating that the impact assessment report should be adjusted to incorporate the Board’s recommendations on specific aspects. These related firstly to the future of the e-CODEX system; the Board considered that it was not sufficiently clear whether the choice of the hosting agency had already been agreed between the Council and the Commission. Secondly, the Board felt that the report should better explain why the uptake of e-CODEX is low and how the proposed regulation would overcome the existing bottlenecks. Thirdly, the Board considered that the comparison between the two options for hosting e-CODEX should be more balanced and less partial. The Commission updated its impact assessment to respond to these main considerations and to address a number of other comments made by the Board.

The impact assessment evaluated several legislative and non-legislative options. Some options were discarded at an early stage. The possibility of creating a separate legal entity, for example, was discarded on the basis that such a measure would be disproportionate in relation to the limited tasks that would be given to the entity. The option of using or developing an alternative system was also discarded, mainly because the current e-CODEX solution has proved to be very effective and efficient in the procedures for which it is already being used, and it is reasonable to expect a return on the EUR 24 million invested in creating it. Furthermore, a commercial solution would raise issues regarding long-term sustainability and data integrity, as the owner of the alternative system could in theory have access to the data transferred using that system. Handing over e-CODEX to a Member State or a consortium of Member States could not be considered either, as Member States have clearly rejected this possibility. Their preference, as expressed in Council conclusions, is to hand over responsibility for the operational management of e-CODEX to eu-LISA.

Under these conditions, two options were assessed against the baseline scenario (under which no permanent operational management would be provided, leading to the expiry of e-CODEX). Of these two, the option of handing over e-CODEX to an agency was considered the most appropriate. The alternative option — to have the Commission ensure the operational management of e-CODEX — was deemed less appropriate, since it would be more difficult to ensure Member States’ involvement in the system’s governance. The Member States consider it important for the system’s management to fully respect the independence of the national judiciaries. An agency could also be a more flexible solution, allowing input from stakeholders to be better taken into account. Of the

Future analysis “Governance model for the European Union IT Agency (eu-LISA)” -www.riigikantselei.ee/sites/default/files">https://www.riigikantselei.ee/sites/default/files

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existing agencies, only eu-LISA has the relevant experience in managing IT systems in the area of justice and home affairs and should therefore be given the task of managing e-CODEX.

The impact assessment concluded that benefits would arise from using e-CODEX for the digitalisation of justice, as it would facilitate and speed up cross-border civil and criminal proceedings and judicial cooperation. It would help to improve the functioning of the digital single market by increasing the efficiency of cross-border proceedings, and it would have a positive impact on the fight against cross-border crime by facilitating cooperation between the competent authorities. Using the e-CODEX system in cross-border civil and criminal proceedings could also make national courts more efficient.

As regards the options for ensuring the e-CODEX system’s operational management, the impact assessment considered that an EU regulatory agency like eu-LISA would have the appropriate capacity for this purpose. The Agency will be able to adapt the e-CODEX system to the technical needs emerging from the Member States that use e-CODEX. This would allow to avoid any asymmetric developments at national level that could potentially impinge on the interoperability between Member States’ national systems.

SMEs and micro-enterprises would benefit from the digitalisation of cross-border civil and criminal proceedings facilitated by e-CODEX. The possibility of submitting claims to courts on-line — for instance, applications for European payment orders or claims under the European small claims procedure (if allowed under national law) — would lead to savings resulting from reduced postage costs and more efficient and shorter procedures. There would be no additional costs for SMEs (or other operators) for using e-CODEX in a specific legal procedure.

• Fundamental rights

The e-CODEX system would make it easier for people to exercise their right to an effective judicial remedy, in line with Article 47 of the Charter of Fundamental Rights, ‘Right to an effective remedy and to a fair trial’, since electronic communication and document transmission facilitates and speeds up the court proceedings. Stakeholders have pointed out that Article 47 also guarantees the right to an impartial and independent tribunal, and that in order to be in conformity with that Article, future governance and coordination of e-CODEX and e-CODEX-related activities need to respect that right.

Since the e-CODEX system is a decentralised system, there will be no data storage or data processing by the entity entrusted with the operational management of the system components beyond what is necessary to maintain contacts with the entities operating e-CODEX access points. These entities have the responsibility for setting up and operating the different e-CODEX networks, and thus they will be the only ones responsible for the personal data transmitted via the respective access points. Depending on whether an access point is operated by an EU institution, body or agency or at national level, and depending on which national authorities are processing personal

data and for what purposes, either Regulation (EU) 2018/172531 or the General Data Protection Regulation or Directive (EU) 2016/680 will apply32.

eu-LISA, as is already the case, has to comply with Regulation (EU) 2018/1725 when processing personal data. As regards, in particular, the task of making further technical developments to the system, this includes ensuring that any improvements or new versions of the software components entrusted to eu-LISA respect security and data protection requirements by design and by default. Article 10 of this proposal makes eu-LISA responsible for carrying out this task, and for data security overall.

4. BUDGETARYIMPLICATIONS

The total costs for 2022-2027 amount to EUR 9.667 million (average cost per year of EUR 1.611 million). Of this amount, the eu-LISA funding for the same period is EUR 8.723 million.

The costs include the additional human resources required for the activities to be carried out by eu-LISA and by the Commission. At eu-LISA, the recruitment of internal resources will start as of 1 September 2022 with two CA posts to cater a the smooth handover. As from 1 January 2023, eu-LISA should have a total of 2 Temporary Agents and 3 Contract Agents, which will ensure core functions with regard to e-CODEX. Additionally, the Commission (Directorate-General for Justice and Consumers) will have to be involved in providing policy governance of eu-LISA’s work, in monitoring the Agency, and in preparing the necessary implementing acts mandated by the Regulation. One additional statutory post has been budgeted for this from 2022.

The legislative financial statement accompanying this proposal contains detailed explanations of the costs.

5. OTHERELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

The entity managing the e-CODEX system will continue to be responsible for it until the successful finalisation of the handover/takeover process. The process of handing over the system to eu-LISA is scheduled to take no more than 6 months starting on 1 January 2023. During this period, the entity managing the e-CODEX system will retain full responsibility for the e-CODEX system. This period will allow eu-LISA to make the necessary preparations for the takeover of the system. The Agency should recruit the necessary staff and plan for procurement activities accordingly.

11.

Two years after eu-LISA takes over responsibility for the e-CODEX system and every 2 years after that, eu-LISA must provide the Commission with a comprehensive activities report on the technical


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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).

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) and 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).

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evolution and functioning of the e-CODEX system during the reporting period, including its security. These reports will be based on the information provided annually by the Member States and the Commission. They will contain the list of authorised e-CODEX access points; an inventory of the cross-border civil and criminal procedures using the e-CODEX system; the degree of digitalisation of each cross-border civil or criminal procedure; the number of business messages sent to and received from each of the other Member States involved in each cross-border civil and criminal procedure; and the number and type of incidents impacting the security of the e-CODEX system.

Three years after eu-LISA takes over responsibility for the e-CODEX system and every 4 years after that, the Commission has to produce an overall evaluation of the e-CODEX system, including an assessment of the Regulation’s application, an examination of results achieved against objectives. The first evaluation should include also an assessment of the functioning of the Programme Management Board, and whether it should be maintained. Taking into account the outcome of that evaluation, the Commission may make any necessary future actions.

• Detailed explanation of the specific provisions of the proposal

Article 1 sets out the subject matter of the Regulation. The Regulation establishes the e-CODEX system and entrusts its operational management to eu-LISA. Furthermore, the Regulation sets out the responsibilities of the Commission, of the Member States and of the entities operating authorised e-CODEX access points.

Article 2 defines the scope of the Regulation. The Regulation applies to the electronic transmission of information in cross-border civil and criminal proceedings through the e-CODEX system, in accordance with legal instruments adopted in civil and criminal cooperation. Annex I provides a list of these instruments.

Article 3 contains the definitions of terms used in the Regulation.

Article 4 defines the e-CODEX system and lays down its composition, consisting of an access point software (including a gateway and a connector). In addition, the e-CODEX system is composed of digital procedural standards that make the interconnection between the access points possible.

Article 5 mandates the Commission to adopt, by 31 December 2022, implementing acts defining the service-level requirements for the activities carried out by eu-LISA. It further mandates the Commission to define by means of implementing acts the minimum technical specifications and standards, including on security, underpinning the software products included in the e-CODEX system; the service-level requirements and other necessary technical specifications for the activities to be carried out by eu-LISA in accordance with Article 6; as well as the terms of the handover/takeover process. In addition, the Commission may also adopt implementing acts on the technical arrangements for using the e-CODEX system in the different cross-border civil and criminal procedures listed in the Annex I. The Commission is also given the responsibility of maintaining a list of authorised e-CODEX access points operated by EU institutions, bodies or agencies, of notifying eu-LISA of any changes to this list, and of nominating correspondents who are entitled to receive support on how to use the e-CODEX system.

Article 6 sets out eu-LISA’s responsibilities for the e-CODEX system’s operational management. It also charges eu-LISA with certain additional tasks with regard to the e-CODEX system and the corresponding technical work in relation to the components mentioned in Article 4 for which eu-LISA is responsible.

Article 7 gives Member States the responsibility to maintain a list of authorised e-CODEX access points, which are operated within their territory; to inform eu-LISA of any changes to that list, and to nominate correspondents who are entitled to receive support on how to use the e-CODEX system.

Article 8 defines the responsibilities of entities operating authorised e-CODEX access points. These include responsibility for securely setting up and operating the access point, as well as for any damages to it and for the security of the data transmitted through it. They will also be responsible for collecting statistical information concerning their operation.

Article 9 specifies the procedure for the handover of the e-CODEX system from the entity managing the e-CODEX system to eu-LISA, including a monitoring role for the Commission. The earliest proposed date for the takeover is 1 July 2023, so that eu-LISA has time to carry out the tasks already entrusted to it for the EES, ETIAS and ECRIS-TCN systems, for the modernisation of SIS and VIS and for ensuring interoperability between EU information systems. The takeover will only take place when the Commission declares that the handover/takeover process has been completed successfully. By 31 December 2022, the entity managing the e-CODEX system should submit a handover document specifying the arrangements for the transfer of the e-CODEX system to eu-LISA. During the handover period, the entity managing the e-CODEX system will retain full responsibility for the e-CODEX system and ensure that only corrective maintenance activities are performed in the system. The handover covers the components of the e-CODEX system defined in Article 4, i.e. the connector and the digital procedural standards, as well as the supporting products listed in Annex II. Article 9 further clarifies that the handover should also ensure that any intellectual property rights or usage rights relating to the e-CODEX system and the supporting products listed in Annex II are transferred, so as to enable eu-LISA to carry out its functions. However, for the main software components of the system, a contractual transfer should not be needed, as the Domibus software is open source and covered by the EUPL licence.

Article 10 provides for requirements on security, giving the overall responsibility for the security of the e-CODEX system to eu-LISA when performing its operational management tasks. eu-LISA must ensure that the e-CODEX system implements the principles of security and data protection by design and by default. It further clarifies that responsibility for the security of data transmitted through an authorised e-CODEX access point lies with the entity operating the access point.

Article 11 provides that an e-CODEX Advisory Group (AG) will be set up by eu-LISA, which will assist with the work on the e-CODEX system. The AG will provide eu-LISA with necessary expertise related to the e-CODEX system and will also follow up on the state of implementation in the Member States, among other issues.

Article 12 establishes a Programme Management Board (PMB) which will assist eu-LISA Management Board to ensure the adequate management of the e-CODEX system. The PMB will act as an intermediary body between the Advisory Groups and eu-LISA’s Management Board. It will in particular monitor the handover activities to ensure a timely takeover of the system by eu-LISA. The PMB will also ensure appropriate prioritisation of the work on the e-CODEX system and mediate in relation to potential contentious issues.

Article 13 gives eu-LISA the task of providing training on the technical use of the e-CODEX system.

Article 14 details the information that Member States and the Commission are obliged to provide to eu-LISA: a list of the cross-border civil procedures and criminal procedures for which they use the e-CODEX system; the extent to which the e-CODEX system can be used for each cross-border civil and criminal procedure; the number of business messages sent and received by each authorised e-CODEX access point operating in their territory; and the number and type of incidents encountered by entities operating authorised e-CODEX access points in the territory of the Member State and impacting the security of the e-CODEX system.

Article 15 lays down rules on monitoring and reporting. Every two years, eu-LISA must provide the Commission with reports on the e-CODEX system, using information from the Member States. In addition, the Commission must submit a report on the e-CODEX system three years after the takeover and every four years after that.

Article 16 governs the amendments to Regulation (EU) 2018/1726 for eu-LISA’s new responsibilities and tasks with the e-CODEX system.

Article 17

concerns the comitology procedure to be used, based on a standard provision.

Article 18 stipulates that the costs incurred for the e-CODEX system’s operational management are to be borne by the general budget of the European Union. In contrast, the Member States will bear the costs of maintaining a list of authorised e-CODEX access points at national level and the costs of designating the e-CODEX correspondents in accordance with Article 7. The costs of setting up and operating e-CODEX system at national level in accordance with Article 8 will be borne by the entities operating authorised e-CODEX access points.

Article 19 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.

Annex I lists the legal acts falling within the scope of this Regulation.

Annex II lists the supporting software products to be handed over to eu-LISA in accordance with Article 9.