Considerations on COM(2002)13 - Proposal for a Council Directive to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid and other financial aspects of civil proceedings - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2002)13 - Proposal for a Council Directive to improve access to justice in cross-border disputes by establishing minimum common rules ... |
|---|---|
| document | COM(2002)13  |
| date | January 27, 2003 |
(2) By Article 65(c) of the Treaty establishing the European Community, these measures are to include measures eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.
(3) The Tampere European Council on 15 and 16 October 1999 called on the Council to establish minimum standards ensuring an adequate level of legal aid in cross-border cases throughout the Union.
(4) Neither the lack of resources of a litigant, whether acting as claimant or as defendant, nor the difficulties flowing from a dispute's cross-border dimension should be allowed to hamper effective access to justice.
(5) The main purpose of the Directive is to guarantee an adequate level of legal aid in cross-border cases, but to guarantee that adequate level it is necessary to lay down certain minimum common standards. A Council directive is the most suitable legislative instrument for this purpose.
(6) The Directive applies to all disputes in civil matters, which include commercial law, employment law and consumer protection law.
(7) All persons involved in a civil dispute must be able to assert their rights in the courts even if their personal financial situation makes it impossible for them to bear the costs of the proceedings.
(8) Legal aid must include at least the services of a lawyer and exemption from the cost of proceedings.
(9) Legal aid can be regarded as appropriate when it allows the recipient effective access to justice.
(10) Since legal aid is given by the Member State of the forum, except pre-litigation assistance provided by a local lawyer if the legal aid applicant is not habitually resident in the Member State of the forum, that Member State must apply its own legislation, in compliance with the principles of the Directive.
(11) The complexity of and differences between the legal systems of the Member States and the costs inherent in the cross-border dimension of a dispute should not preclude access to justice. Legal aid should accordingly cover costs directly connected with the cross-border dimension of a dispute.
(12) All Union citizens, wherever they reside, must be eligible for legal aid if they meet the conditions provided for by the Directive. The same applies to third-country nationals who habitually and lawfully reside in a Member State.
(13) If legal aid is granted, it must cover the entire proceeding, including expenses incurred in having a judgment declared enforceable or enforced; the recipient should continue receiving this aid if an appeal is brought against him.
(14) Judicial cooperation in civil matters should be organised between Member States to encourage information for the public and professional circles and to simplify and accelerate the transmission of legal aid applications between Member States.
(15) The European Agreement on the Transmission of Applications for Legal Aid, signed in Strasbourg in 1977, which requires the contracting parties to notify sending and receiving authorities and their systems for transmitting applications, remains applicable to relations between Member States and third countries that are parties to the Agreement. But this Directive replaces the Agreement in relations between Member States.
(16) The notification and transmission mechanisms provided for by this Directive are inspired directly by those of the European Agreement. A time-limit, not provided for by the 1977 Agreement, should be set for the transmission of legal aid applications. A relatively short time-limit would contribute to the smooth operation of justice.
(17) The establishment of a standard form for the transmission of legal aid applications in the event of cross-border litigation would make the procedures easier and faster.
(18) Given the differences in the costs of litigation and in standards of living between the Member States, they should accordingly be left free to define the threshold above which a person would be presumed able to bear the costs of proceedings, in such a way as to attain the objectives of the Directive.
(19) The objective of the Directive could not, however, be attained if legal aid applicants did not have the possibility of proving that they cannot bear the cost of proceedings even if their resources exceed the threshold defined by the Member State of the forum.
(20) The possibility of resorting to private mechanisms or agreements to ensure effective access to justice is not a form of legal aid. But it can warrant a presumption that the person concerned can bear the costs of the procedure despite his unfavourable financial situation.
(21) Member States should be allowed to reject applications for legal aid in respect of manifestly unfounded actions, without however going so far as to prejudge the case with a view to evaluating the applicant's prospects of winning the case.
(22) The Directive does not extend to profit-making legal persons except for non-profit legal persons, such as consumers' associations, which take action in the courts to protect legally recognised general interests. This principle contributes to the attainment of the objectives of Directive 98/27/EC of 19 May 1998 on injunctions for the protection of consumers' interests. i
(23) Legal aid must be granted on the same terms both for conventional legal proceedings and for out-of-court procedures such as mediation, where recourse to them is encouraged by the law.
(24) The possibility that a party to a dispute may have to pay court costs or a lawyer's fees even if he wins the case constitutes an obstacle to access to justice. Their reimbursement by the losing party on an equitable basis mitigates this disadvantage. The protection of weaker parties, in particular in the field of employment and consumer protection law, may justify exceptions to this principle.
(25) It should be specified that the establishment of minimum standards does not prevent Member States from making provision for more favourable arrangements for legal aid applicants.
(26) As the objectives of this Directive cannot be achieved adequately by the Member States acting alone and could better be achieved by action at Community level, the Community may take measures in accordance with the principle of subsidiarity as declared by Article 5 of the Treaty establishing the European Community. In accordance with the principle of proportionality laid down in the same article, this Directive goes no further than is necessary to achieve these goals.
(27) This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union as general principles of Community law. In particular, it seeks to promote the application of the principle of legal aid for all persons who lack sufficient resources where access to such aid is necessary to secure access to justice in accordance with the third paragraph of Article 47 of the Charter of Fundamental Rights of the European Union.
(28) [The United Kingdom and Ireland are not participating in the adoption of this Directive in accordance with Articles 1 and 2 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community.] [The United Kingdom and Ireland have given notice of their wish to participate in the adoption of this Directive in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community.]
(29) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not participating in the adoption of this Directive. This Directive is accordingly not binding on Denmark nor applicable there.