Explanatory Memorandum to COM(2021)759 - Digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters

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dossier COM(2021)759 - Digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters.
source COM(2021)759 EN
date 01-12-2021


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

Efficient cross-border judicial cooperation requires secure, reliable and time-efficient communication between courts and competent authorities. Moreover, this cooperation should be carried out in a way that does not create a disproportionate administrative burden and is resilient to force majeure circumstances. These considerations are equally important for individuals and legal entities, as getting effective access to justice in a reasonable time is a crucial aspect of the right to a fair trial, as enshrined in Article 47 of the EU Charter of Fundamental Rights of the European Union 1 (the Charter).

To protect their rights, both individuals and legal entities should be able to rely on effective remedies. Mere access to judicial authorities does not automatically constitute effective access to justice. For this reason, it is important to find ways to facilitate the conduct of procedures and reduce practical difficulties as much as possible. Individuals and legal entities should be able to exercise their rights and comply with their obligations in a swift, cost-efficient and transparent way.

At EU level, there exists a comprehensive set of instruments designed to enhance judicial cooperation and access to justice in cross-border civil, commercial and criminal cases. Many of these govern the communication between authorities, including in certain cases with the EU Justice and Home Affairs (JHA) agencies and bodies, and between authorities and individuals or legal entities. However, most instruments do not provide for engaging in such communication through digital means. Even where they do, other gaps may exist, such as a lack of secure and reliable digital communication channels or non‑recognition of electronic documents, signatures and seals. This deprives judicial cooperation and access to justice of using the most efficient, secure and reliable channels of communication available.

In addition, the COVID-19 pandemic has shown that force majeure events may severely affect the normal functioning of Member States’ justice systems. During the crisis, in many cases national courts have been unable to maintain normal operations due to the spread of the virus. Member States were forced to take a number of measures ranging from full lockdowns to treating certain priority cases only. At the same time, the use of digital technologies (e.g. email, videoconference, etc.) helped to limit disruption 2 . However, many of the technical solutions employed were developed in an ad hoc manner, and did not necessarily satisfy security and fundamental rights standards to the full. Judicial cooperation and access to justice in EU cross-border cases have been similarly affected, and the COVID-19 pandemic has underlined the need to ensure the resilience of communication.

Against this background, the rules on digitalisation set out in this proposal aim at improving access to justice and the efficiency and resilience of the communication flows inherent to the cooperation between judicial and other competent authorities in EU cross-border cases.

The use of digital technologies has the potential to make judicial systems more efficient in this regard, by easing the administrative burden, shortening case processing times, making communication more secure and reliable, and partially automating case handling. However, as experience has shown, leaving Member States to develop their own national IT solutions leads to a fragmented approach and risks solutions not being compatible.

Contents

1.

Therefore, to guarantee a common approach towards the use of modern technologies in cross-border judicial cooperation and access to justice, this initiative aims to:


·Ensure the availability and use of electronic means of communication in cross-border cases between Member States’ judicial and other competent authorities, including the relevant JHA agencies and EU bodies, where such communication is provided for in EU legal instruments on judicial cooperation.

·Enable the use of electronic means of communication in cross-border cases between individuals and legal entities, and courts and competent authorities, except in cases covered by the Service of documents regulations 3 .

·Facilitate the participation of parties to cross-border civil and criminal proceedings in oral hearings through videoconference or other distance communication technology, for purposes other than the taking of evidence in civil and commercial cases 4 .

·Ensure that documents are not refused or denied legal effect solely on the grounds of their electronic form (without interfering with the courts’ powers to decide on their validity, admissibility and probative value as evidence under national law).

·Ensure the validity and acceptance of electronic signatures and seals in the context of electronic communication in cross-border judicial cooperation and access to justice.

• Consistency with existing policy provisions in the policy area

In December 2020, the Commission adopted a Communication on the digitalisation of justice in the EU 5 , proposing a toolbox approach. This approach includes a set of measures to bring forward digitalisation at both the national and EU level. The Communication also addresses modernising the legislative framework for EU cross-border procedures in civil, commercial and criminal law, in line with the ‘digital by default’ principle 6 , while ensuring all necessary safeguards (for example, specifically acknowledging the need to avoid social exclusion). This proposal was announced by the Commission and included in its work programme for 2021 7 (see ‘digital judicial cooperation’ package).

Together with the December 2020 Communication, the Commission adopted a legislative proposal for a Regulation of the European Parliament and of the Council on a computerised system for communication in cross-border civil, commercial and criminal proceedings (e-CODEX system) 8 . The proposal aims to establish a legal basis for the e-CODEX system and guarantee its sustainability and future management by entrusting it to the European Union Agency for the Operational Management of Large Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA). The e-CODEX system is a suite of software components for EU judicial cooperation, developed by a consortium of Member States and financed by the Commission. It supports the communication in civil and criminal proceedings by enabling the secure and interoperable cross-border exchange of electronic messages and documents. The e-CODEX system would therefore be the most suitable tool for the digitalisation of cross-border judicial cooperation procedures.

In November 2020, the European Parliament and the Council adopted recasts of the Service of Documents Regulation and the Taking of Evidence Regulation. These require Member States’ competent authorities to communicate with each other through a decentralised IT system (e.g. to exchange standardised forms, documents, etc.), which is composed of national IT systems interconnected via an interoperable solution (such as e-CODEX). The two Regulations establish for the first time a comprehensive legal framework for electronic communication between competent authorities in cross-border judicial procedure. An identical approach for communication between competent authorities is taken under the current proposal, while the Service of documents and Taking of evidence Regulations (recasts) are left out of the scope of this proposal.

The work on the two Regulations was closely linked with the Commission’s overall priority of digitalisation and e-Justice and its simultaneous work in criminal justice. Following the Commission’s proposals of 2018, the European Parliament and the Council (the co-legislators) are negotiating a legislative framework on cross-border access to e-evidence. In this context, the Commission’s proposals 9 already highlight the importance of electronic platforms, e.g. for the submission of requests, the authentication of orders and responses by service providers. The exchange of e-evidence will take place via an identical decentralised IT system as the one envisaged under this proposal or the e-evidence proposal will refer directly to this proposal.

• Consistency with other Union policies

On 9 June 2020, the Council adopted conclusions on “Shaping Europe’s digital future” 10 , where it recognises that ‘the digitalisation of the justice systems of the Member States has the potential to facilitate and improve access to justice throughout the EU.’ The Council calls on the Commission “to facilitate the digital cross-border exchanges between the Member States both in criminal and civil matters and to ensure the sustainability and ongoing development of the technical solutions which have been developed for cross border exchanges.”

The October 2020 Council conclusions on “Access to justice – seizing the opportunities of digitalisation” 11 call on the Commission to take concrete action to digitalise justice, including by:

·examining the potential for modernising the core provisions of instruments in civil and commercial matters in line with the ‘digital by default’ principle; and

·considering to which judicial cooperation instruments in criminal matters the
e-Evidence Digital Exchange System (eEDES) 12 might be extended.

The December 2020 Council conclusions on “The European arrest warrant and extradition procedures – current challenges and the way forward” 13 underline that digitalisation should play a central role in the operation of the European arrest warrant (EAW).

This initiative is consistent and creates direct links with the e-IDAS Regulation 14 , as it introduces provisions on the use of trust services to the electronic communication between judicial and other competent authorities, as well as between these authorities, individuals and legal entities. Concretely, the proposal seeks to remove any doubts with respect to the legal validity of electronic documents exchanged in these contexts, and creates a common regime on the use and recognition of electronic signatures and seals in cross-border judicial procedures.

At the beginning of June 2021, the Commission adopted a proposal amending the e-IDAS Regulation to establish a framework for a European digital identity 15 . The proposal addresses the increased private and public sector demand for electronic identity solutions that rely on specific attributes and ensure a high level of trust across the EU. The proposed digital identity wallet storing attributes and credentials will allow individuals and legal entities to access public services, including digital public services allowing individuals and legal entities to engage in cross-border judicial proceedings. In the context of EU cross-border judicial cooperation and the communication of natural persons with the competent authorities in cross-border cases, the Commission’s proposal on a framework for a European Digital Identity should be taken into account in view of the future requirements the proposal sets out with respect to electronic identification. While the present Regulation does not address identification requirements insofar as access to national IT portals operated by the Member States or requirements with regard to the remote electronic identification of the parties in a videoconference may be concerned, Member States should take into account the requirements for the application of the European Digital Identity Wallet.

Given the highly sensitive nature of the information exchanged, it is essential that the implementation of the toolbox approach on the digitalisation of justice, including through this proposal, takes place in a way that guarantees strong cybersecurity standards. This is consistent with the approach outlined in the EU's Cybersecurity Strategy 16 and the Commission’s proposal for a Directive on measures for a high common level of cybersecurity across the Union (NIS2) 17 , aiming to improve further the cybersecurity capacities of public and private entities, competent authorities and the Union as a whole in the field of cybersecurity and critical infrastructure protection. While judiciary in Member States is not in the scope of NIS2 proposal it is of essence that Member States will put in place national measures that would ensure a comparable level of cybersecurity.

Training justice professionals on EU law is an essential tool to ensure its correct and effective application. To prepare justice professionals, make them fit for the challenges of the 21st century, and keep them updated on developments in EU law, the Commission adopted a European judicial training strategy for 2021-2024 18 . The strategy addresses training justice professionals on the use of the digital tools set by the regulatory framework in their daily work. Following the adoption of this proposal, in line with the strategy, timely training of all justice professionals would need to be organised to ensure correct and seamless application and use of new digital tools.

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The use of digital channels for communication in cross‑border judicial proceedings would facilitate judicial cooperation in civil, commercial and criminal matters. Therefore, the legal basis for this initiative are Articles 81(1) and 82 (2) of the Treaty on the Functioning of the European Union (TFEU) 19 .

The use of digital channels for communication would facilitate judicial cooperation and the effective access to justice in civil matters in line with Article 81(2) TFEU. Article 82(1) TFEU is the legal basis for the Union to facilitate the cooperation between Member States’ judicial or other competent authorities in criminal proceedings and in the enforcement of decisions.

• Subsidiarity (for non-exclusive competence)

Under Article 4(2)(j) of the TFEU, the competence to adopt measures in the area of freedom, security and justice is shared between the EU and its Member States. Therefore, Member States may act alone to govern the use of digital communication channels in the context of judicial cooperation and access to justice to the extent that the EU has not exercised its competence. However, without EU action, progress can be expected to be very slow and, even where Member States take action it is very difficult to ensure interoperability of the communication channels without coordination and intervention at the EU level. Moreover, the envisaged digitalisation measures are strictly linked to existing EU legal instruments in the area of cross-border judicial cooperation and cannot be achieved by Member States acting alone. Therefore, the objectives of this proposal cannot be fully achieved by Member State acting alone, but only at EU level.

There are already certain EU rules governing the conduct of communication, some of which even provide for the use of modern technology. However, the existing rules do not ensure an adequate and holistic infrastructure for electronic communication between individuals, legal entities or competent authorities with the authorities of another Member State.

EU action is needed to coordinate Member States’ efforts and establish a coherent framework for the existing EU rules. This will improve the efficiency, resilience, security and speed of cross-border judicial procedures, and will simplify and speed up communication between Member States’ authorities and with individuals and legal entities. Therefore, the administration of justice-related cases with cross-border implications will improve.

Further benefits arise from driving forward the digitalisation of EU judicial cooperation and bringing on board all Member States, as this will improve the current situation, where only certain groups of Member States have taken action, resulting in a limited and fragmented response to the identified problems.

• Proportionality

Adoption of uniform measures for electronic communication in cross-border judicial cooperation and access to justice at EU level is a proportionate way of establishing a coherent framework for the existing EU rules. Overall compliance with the principle of proportionality would be guaranteed as the proposal will propose only measures that are necessary to ensure the use of digital technology in the context of judicial cooperation and access to justice in cross-border cases. The proposed actions will not burden Member States beyond what is needed to achieve the proposal’s objectives. This is explained in more detail in the impact assessment accompanying the proposal (see Section 8 thereof) 20 . These objectives can be achieved only through rules requiring mandatory use of digital communication between the courts and competent authorities of the Member States, and obliging them to accept electronic communication from natural and legal persons, allowing videoconferencing and recognising trust services.

• Choice of the instrument

The proposal is a Regulation, which would provide a new standalone legal basis for the digitalisation of the EU judicial cooperation instruments. The aim is to have common rules applying to all EU judicial cooperation instruments in one single, binding act.

The Regulation will directly apply in all Member States and be binding. It therefore guarantees that the rules will apply and enter into force across the EU at the same time. It offers legal certainty by avoiding divergent interpretations in the Member States, therefore preventing legal fragmentation.

Since this initiative requires the alignment of conflicting civil, commercial and criminal matters rules with this Regulation, amendments in existing legal acts need to be adopted. While certain legal acts are Regulations, others are Framework Decisions and Directives. It is therefore appropriate to enact the amendments to the concerned Framework Decisions and Directives in a separate legal instrument, which would ensure alignment with the cohesive set of rules laid down in this Regulation. For this reason, a dedicated amending Directive should be proposed together with this Regulation.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Stakeholder consultations

For more than a decade, the Commission has been working on e-Justice policy in close cooperation with various stakeholders. These stakeholders have been consulted on the proposal’s objectives and on the identified policy options. Following the consultation strategy for this proposal, a broad range of stakeholders were consulted. Consultations were carried out in the Council Working Party on e-Justice (EJUSTICE), the Council Working Party on Civil Law Matters (JUSTCIV), the Council Working Party on Judicial Cooperation in Criminal Matters (COPEN), the European Judicial Network in Civil and Commercial Matters, and the European Judicial Network in Criminal Matters.

In publishing the inception impact assessment and launching a public consultation, the Commission reached out to a broad range of stakeholders, including Member States’ national authorities, non-governmental organisations, professional associations, business organisations and individuals.

The findings of the consultations show support for the proposals’ objectives. The stakeholders favoured a compulsory use of the digital channel for communication against a voluntary use in judicial cooperation. They also supported the possibility for the parties to cross-border proceedings to take part in oral hearings through videoconferencing or other distance communication technology. While most stakeholders favoured mandatory electronic communication between individuals and legal entities and the courts and competent authorities, it is appropriate to maintain the possibility to use the paper channel of communication for individuals and legal entities. The main reason for keeping the electronic communication voluntary is to guarantee access to justice of vulnerable people, minors and people who need technical assistance or may not have access to digital means or the required skills.

• Collection and use of expertise

The Commission engaged the services of a contractor to prepare a study to support the impact assessment. The contractor carried out various stakeholder consultation activities specifically designed for the purposes of the study, such as organising an EU level focus group, national stakeholder consultation on the impacts of the policy options, carried out a national survey, held one-to-one interviews, etc.

All data collected informed the preparation of the proposal, including the impact assessment.

In addition, the Commission used the considerable amount of existing data on the digitalisation of justice in the EU. For instance from the EU Justice Scoreboard, the rule of law report, data from the Council of Europe’s European Commission for the efficiency of justice (CEPEJ) and the Digital Criminal Justice study 21 .

• Impact assessment 22

This proposal is supported by an impact assessment presented in the accompanying staff working document.

2.

The Regulatory Scrutiny Board (RSB) discussed the draft impact assessment on 22 September 2021 and delivered its positive opinion on 27 September 2021. The RSB made the following recommendations:


The problem analysis should be strengthened to highlight the main problems this proposal aims to address. The analysis should be backed by evidence on voluntary participation in digitalisation, non-recognition of electronic documents, signatures or seals and interoperability.

The report should explain how this proposal will ensure coherence with other EU-level instruments designed to improve digitalisation that could be used in cross-border judicial cooperation. The report should also explain why Member States do not fully exploit the existing possibilities for digitalisation.

The impact analysis should be strengthened with a clear presentation of impacts, particularly investment costs and stakeholders affected. It should acknowledge the uncertainties in the assumptions made and the implications these have for the impacts assessed.

The report should assess the effects of a potential increase of cross-border cases. It should discuss if there is a risk that improved access to justice and more efficient cross-border judicial cooperation could lead to delays in the treatment of cases due to higher workload for judges and the time legal proceedings take.

The report should clarify the data protection issues at stake and acknowledge that moving from a paper to a digital format entails other risks. The report should address potential sensitivities linked to the fact that having more data in digital format may not only ease their transmission, but also creates data protection and security issues. The concerns raised by stakeholders about data protection should be considered.

The RSB has also sent additional recommendations with the quality checklist.

In addressing the RSB’s recommendations, the following changes were introduced to the impact assessment:

The problem definition has been reformulated so that it reflects the actual problems analysed in Section 2.

The coherence with other initiatives, such as e-CODEX and e-IDAS has been explained, as well as the links with the European e-Justice Portal 23 .

Section 6 on the impacts of the baseline and the policy options has been restructured and the main impacts (i.e. economic impacts, social impacts, impacts on fundamental rights) have been outlined for each of the options. The section also addresses in what way the main stakeholders will be affected by the proposal.

Section 6 on the impacts clarified if there is a potential risk of an increased number of cross-border cases and the capacity of the judiciary to absorb such a development.

Clarifications on data protection have been added in Section 6.

In addition, the impact assessment was supplemented with the data available from the supporting study and from Annex 7 of the report. The economic analysis and the costs for Member States have been added to the report. The views of the stakeholders consulted have been outlined in the corresponding sections of the report. The technical recommendations, such as merging the outcome of the public consultation with Annex 2, numbering the pages of the Annexes, deleting the Annex on the subsidiarity grid, have been addressed.

The impact assessment identified one non-legislative and one legislative policy option with three sub-options. There were additional options that were discarded at an early stage. A promotional campaign on using digital tools and e-CODEX system for communicating in cross-border judicial procedures has been discarded because it was considered that such a campaign would not to constitute a real alternative to regulatory action and could in any case be carried out as part of the baseline scenario. The option of the electronic exchange of information and data through a centralised EU system was not considered appropriate, as it was difficult to justify from the point of view of proportionality and subsidiarity. In addition, all information, data and documents would be stored in Commission infrastructure or infrastructure of the entity managing the system (e.g. eu-LISA), while these would not be party to cross-border exchanges. A centralised system would also constitute a single point of failure, as all data would be stored in one place compared to a decentralised system where data are stored by each Member State individually.

The baseline scenario against which the two main options were assessed did not envisage any action to drive forward the digitalisation of cross-border judicial cooperation and the use of digital tools to improve access to justice. Therefore, the use of electronic communication between the authorities would remain voluntary. The use of electronic signatures/seals and data protection responsibilities would continue to be fragmented. Therefore, the two options considered in view of the outlined objectives of the proposal were adoption of a Commission recommendation (non-legislative option) or adoption of a legal act – a regulation (legislative option).

The legislative option would require a package of a Regulation with horizontal provisions and amendments to existing Regulations to ensure consistency and a Directive with amendments to existing Directives and Framework Decisions.

The non-legislative option would involve action to encourage Member States to use the e‑CODEX system for digital cross-border communication and access to justice. A Commission recommendation could encourage Member States to follow a harmonised approach to the use of electronic communications, including videoconferencing, electronic documents, electronic seals and signatures. Given the voluntary nature of this approach, Member States would be free to develop their own digital tools. Such action could be technically and operationally feasible. Cost‑effectiveness would depend on the individual Member State approach to digitalisation and on their needs and resources. However, on the extent to which the option fulfils the objectives of the proposal, a recommendation would not guarantee the actual implementation of digital tools for communication, the interoperability of the digital channel, the acceptance of electronic documents, or common standards on the use and recognition of trust services.

Under the legislative option, legislative measures (a Regulation and a Directive) will be adopted. A regulation will include rules establishing a secure electronic channel based on e‑CODEX (identified as the most appropriate technical solution in the impact assessment on the Commission’s proposal for a Regulation on e‑CODEX). This channel, constituting a decentralised IT system, will be used for communication and exchange of information, data and documents between courts and competent authorities, and where relevant with JHA agencies and EU bodies. Rules will be introduced in support of communication between individuals and legal entities, and Member States’ courts and competent authorities, including rules on the use of videoconference or other distance communication technology. The responsibilities of the data controllers and data processors will be outlined. This option is based on the assumption that the IT systems for exchanges of European Investigation Orders (EIOs) and the service of documents/taking of evidence, as developed by the Commission, will be extended to all cross-border judicial communication regulated in the EU judicial cooperation instruments. Member States will be able to connect their national IT system to a decentralised network or use the software solution developed by the Commission and provided free of charge. This will allow direct communication between the courts and/or competent authorities participating in the proceedings under the EU instruments in cross-border judicial cooperation in civil, commercial or criminal matters. Three sub-options were considered under the legislative option, namely a) compulsory or voluntary use of the digital channel, b) compulsory or voluntary acceptance of electronic communication regarding natural and legal persons, and c) regulatory or non-regulatory approach to the use and recognition of trust services. A Directive will amend the existing Framework Decisions and Directives to align them with the rules of the Regulation.

After comparing the policy options and the sub-options, and assessing them against the objectives of the proposal, the preferred option chosen is the legislative option. This option will make using digital communication compulsory (subject to justified exceptions) for communication between courts and competent authorities (and between them and the EU JHA agencies and bodies). It will also oblige courts and competent authorities to accept electronic communication from natural and legal persons, provide a legal basis for the use of videoconferencing or other distance communication technology for oral hearings in cross-border cases, and the use and recognition of trust services.

While the courts and competent authorities will be required to accept electronic communication from natural and legal persons, the use of the digital channel will be voluntary for the natural and legal persons. They will be free to use traditional means of communication, including a paper based one if they wish.

The use of the digital channel can be expected to have a positive environmental impact, due to the use of less paper and postage. These environmental impacts relate mainly to the adoption of electronic means of communication and a likely increase in the use of videoconferencing and distance communication instead of in-person hearings. While it could be presumed that the production and operation of equipment will consume energy, the overall impact on the environment will be positive.

On economic impact, the obligation to set up a digital channel would require new investment from Member States to develop the necessary infrastructure to interact with e‑CODEX. The scale of the investment would depend on their current degree of digitalisation, their level of involvement in the e-CODEX project, the compatibility with current solutions and the scope for electronic transmissions under national law. However, in the long run, the digitalisation of justice would significantly reduce the costs incurred by national justice systems in cross-border procedures. It would also positively influence the process of digitalisation at national level.

Introducing digital means for improving access to justice for cross-border cases in civil, commercial and criminal matters will affect individuals and businesses, including the SMEs. The possibility to file claims and to digitally communicate with the courts and competent authorities, as well as the possibility to participate in oral hearings through videoconference or other distance communication technology will facilitate access to justice in cross-border procedures. This is because individuals will have more flexibility to seize courts and to participate in hearings taking place in another Member State. Businesses, including SMEs, will also benefit from an improved access to justice and more efficient protection of their rights, which is expected to have a beneficial effect on and boost cross-border trade.

Lower costs for proceedings will have an indirect effect by improving the competitiveness of the businesses, including SMEs. The average overall yearly saving at EU level is estimated at EUR 23 372 900 in postage costs and EUR 2 216 160 in paper costs amounting to a total of EUR 25 589 060. Natural and legal persons will be saving EUR 4 098 600 in postage costs and EUR 388 800 in paper costs.

Reducing the time for communication will lead to natural and legal persons gaining 2 700 000 days per year in average posting time at EU level. The average posting time will be reduced to zero resulting in an overall yearly reduction of the duration of the procedures by 15 389 999 days. There would be no additional costs for natural and legal persons and for the SMEs for using the digital channel of communication in a specific legal procedure. All that would be needed is a computer and internet connection. Digitalising the communication between courts and competent authorities will alleviate the administrative burden. The impact assessment concluded that 874 person-years will be gained in processing effort at court/competent authority level.

• Regulatory fitness and simplification

This proposal aims at introducing modern digital technology in access to justice and judicial cooperation in cross-border civil, commercial and criminal cases. The expected result is quicker, cheaper, more secure and reliable communication between the competent authorities and with natural and legal persons.

All natural and legal persons will have the option to digitally communicate with the courts and the competent authorities and to take part in oral hearings though a videoconference or other distance communication technology. Paper-based communication will be maintained for the natural and legal persons. There are no specific costs that are envisaged for businesses to use digital communication – they simply need to possess a computer and to have access to the internet. Businesses will benefit from improved access to justice and more efficient protection of their rights, which is expected to boost cross-border trade. Similarly, SMEs involved in cross-border transactions are expected to benefit directly from the improved access to justice, as well as from lower costs and shorter proceedings when enforcing their rights across borders. This could also drive SMEs to engage more in cross-border transactions within EU. The lower costs of proceedings will have an indirect effect by improving the competitiveness of the SMEs.

The possibility for citizens to file claims and to digitally communicate with the courts and competent authorities, as well as the possibility to participate in oral hearings through videoconference or other distance communication technology will ensure improved access to justice in cross-border procedures, once they are digitalised. Such digital tools will not require significant costs or investments on the part of the citizens. What would be needed is a computer and access to the internet. To ensure that citizens who lack digital skills, who live in remote areas or whose personal capacity does not allow them a seamless access to the digital tools, the possibility for paper-based communication will be maintained.

• Fundamental rights

Making use of the digital channel of communication between Member States’ courts and competent authorities will help to overcome delays, reduce the administrative burden and facilitate and accelerate the exchange of information between these authorities. As a result, the overall time for processing cases will be reduced, as well as the costs for the proceedings.

The possibility for individuals and legal entities to file claims and to digitally communicate with the courts and competent authorities, as well as the possibility to participate in oral hearings through videoconferencing or other distance communication technology will ensure improved access to justice in cross-border procedures, once they are digitalised. To respect the needs of disadvantaged groups and vulnerable people, the paper-based communication will be maintained as an option.

The proposal will establish a decentralised IT system for the exchange between the courts and the competent authorities and between these entities and natural or legal persons. The decentralised nature of the system means that there will be no data storage or data processing by the entity entrusted with the operational management of the system’s components. Depending on whether an access point to the system is operated by an EU institution, agency or body, or at national level, and depending on which national authorities are processing personal data and for what purposes, either Regulation (EU) 2018/1725 24 , the General Data Protection Regulation 25 or Directive (EU) 2016/680 26 will apply.4.BUDGETARY IMPLICATIONS

The implementation of the Regulation will require the establishment and maintenance of a decentralised IT system. This system constitutes a network of national IT systems and interoperable access points, operating under the individual responsibility and management of each Member State, Union institution, agency or body, which enables secure and reliable cross-border exchange of information. Where Member States have not already developed appropriate national IT systems, the Commission will provide a reference implementation software, which Member States may choose to use instead. The reference implementation software will be built upon the eEDES and Service of Documents/Taking of Evidence IT system(s). These electronic systems already follow a multifunctional approach and could be built upon, thus avoiding unnecessary expenses.

The investment and running costs for these systems, including the modification to the European e-Justice Portal to support interactions between natural and legal persons and courts and competent authorities in cross-border proceedings, are presented in Annex 9 of the impact assessment 27 .

The Digital Europe programme 28 is the most appropriate funding instrument that could support the development and maintenance of the decentralised IT system and the establishment of a European electronic access point on the European e-Justice Portal. Under the overall objectives of supporting the digital transformation of areas of public interest, the initiative directly addresses the objectives of the programme to enable seamless and secure cross-border electronic communication within the judiciary and between the judiciary and other competent bodies in the area of civil and criminal justice, and to foster access to justice.

The costs for the Member States will be rather limited: a total of EUR 8 100 000 per year i.e. EUR 300 000 per year per Member State. In the first two years, the cost of installation will be EUR 100 000 per year per Member State. This includes equipment costs and the human resources needed to configure it. The remaining EUR 200 000 are needed to provide support to an increasing number of users. As of the third year, there are no hardware and installation costs, only costs related to user support and maintenance of the system. This is estimated at EUR 300 000 per year. The e-CODEX system is an open-source solution that could be used free of charge. While Member States are expected to bear these costs from their national budgets, they can nonetheless apply for EU financial support under the relevant financing programmes, such as the Justice programme and the cohesion policy instruments. It should also be highlighted that some Member States already operate a pilot version of e-CODEX, which they may reuse and build upon for the newly defined purposes.

Courts and competent authorities, which are not equipped with videoconferencing equipment, will have to invest in buying such equipment, if they are planning to use the possibility to organise remote hearings.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

3.

For the purposes of this Regulation, the decentralised IT system will be developed further through implementing acts adopted by the Commission. The implementing acts will set out the:


·technical specifications defining the methods of communication by electronic means for the purposes of the decentralised IT system;

·technical specifications for communication protocols;

·information security objectives and relevant technical measures ensuring minimum information security standards and a high level of cybersecurity for the processing and communication of information within the decentralised IT system;

·minimum availability objectives and possible related technical requirements for the services provided by the decentralised IT system.

A European electronic access point will be established on the European e-Justice Portal, by modifying the already developed e-CODEX solution for filing small claims.

A system for monitoring the proposed legal instrument is envisaged, including a comprehensive set of qualitative and quantitative indicators, and a clear, structured reporting process. The purpose of the monitoring arrangements is to determine whether the instrument is implemented efficiently in the Member States and whether it is successful in achieving its specific objectives.

A full evaluation every five years is provided for assessing impacts and contextual issues. Where electronic communication is used, monitoring will be facilitated by automatically compiling data and using the reporting features of the decentralised IT system. For data that is not collected automatically, a monitoring sample of at least one court or competent authority to be designated by each Member State will be put in place.• Detailed explanation of the specific provisions of the proposal

Article 1 defines the subject matter and the scope of the Regulation. The Regulation sets the legal framework for electronic communication in the context of the cross-border judicial cooperation procedures in civil, commercial and criminal matters and access to justice in civil and commercial matters with cross-border implications as regulated in the EU acts on judicial cooperation in civil, commercial and criminal matters. These legal acts are listed in the two Annexes to the Regulation, Annex I of which comprises legal acts in civil and commercial matters and Annex II - legal acts in criminal matters.

The Regulation also lays down rules on the use and recognition of electronic trust services, on the legal effects of electronic documents, on the use of videoconferencing or other distance communication technology for hearing of persons in civil, commercial and criminal matters. However, the regulation does not apply for the purposes of taking of evidence in civil and commercial matters, which is governed in a separate legal act and where similar digitalisation provisions already exist. The Regulation does not lay down new procedures and applies only to electronic communication in the context of cross-border judicial cooperation procedures and access to justice in civil, commercial and criminal matters.

Article 2 defines the terms used in the Regulation.

Article 3 lays down that the electronic communication between courts and competent authorities is carried out through a secure and reliable decentralised IT system. This system consists of IT systems and interoperable access points, operating under the individual responsibility and management of each member State, JHA agencies and EU bodies, and enables interoperable cross-border exchange between the respective authorities of the Member States. The use of the system is compulsory, except in case of disruption of the system or in other specific circumstances.

Article 4 establishes the European electronic access point, located on the European e-Justice Portal. This European electronics access point is part of the decentralised IT system and may be used by natural and legal persons for electronic communication with the courts and competent authorities in civil and commercial matters with cross-border implications.

Article 5 requires Member States’ courts and competent authorities to accept electronic communication from natural and legal persons in judicial procedures, but leaves the choice of the electronic means of communication at the discretion of the natural and legal persons. It provides for some of the digital communication channels, notably the European electronic access point and existing national IT portals, where developed by the Member States for the purposes of participating in judicial procedures.

Article 6 requires competent authorities to accept electronic communication from natural and legal persons, making electronic submissions equivalent to the paper ones.

Article 7 provides the legal basis and sets out the conditions for using videoconferencing or other distance communication technology in cross-border civil and commercial proceedings under the legal acts listed in Annex I and in civil and commercial matter where one of parties is present in another Member State. It refers to the national law of the Member State conducting the videoconference. Additional rules are set out on hearing children through videoconferencing or other distance communication technology.

Article 8 provides the legal basis and sets out the conditions for using videoconferencing or other distance communication technology in criminal matters. Additional rules are set out on hearing a suspect, an accused or a convicted person and on hearing children through videoconferencing or other distance communication technology.

Article 9 sets out the rules on using trust services (electronic signatures and seals) in electronic communication governed by the Regulation, by referring to the e-IDAS Regulation.

Article 10 requires that electronic documents are not denied legal effects solely on the ground that they are in electronic form.

Article 11 provides the legal basis for electronic payment of fees, including through the European e-Justice Portal.

Article 12 lays down a framework for the Commission to adopt implementing acts.

Article 13 mandates the Commission to create, maintain and develop reference implementation software.

Article 14 sets out who bears the cost for the various IT development tasks.

Article 15 lays down rules on the protection of personal data exchanged through digital means.

Articles 16 – 18 set out procedural rules, such as the rules applicable to the Committee procedure, the legal basis for the Commission to collect and use data for evaluating the effectiveness of the Regulation.

Articles 19-22 introduce amendments to the Regulations in civil and commercial matters, listed in Annex I to include reference to the digital means of communication as established by the Regulation and to avoid ambiguities as to the communication means to be used under the existing legal acts.

Articles 23 introduces amendments to one Regulation in criminal matters to include reference to the digital means of communication as established by the Regulation and to avoid ambiguities as to the communication means to be used under the existing legal acts.

Article 24 sets out the transitional period.

Article 25 provides that the Regulation would enter into force on the twentieth day following that of its publication in the Official Journal of the European Union. It also sets the date on which the Regulation will start to apply.