Considerations on COM(2021)759 - Digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters - Main contents
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| dossier | COM(2021)759 - Digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters. |
|---|---|
| document | COM(2021)759  |
| date | December 13, 2023 |
(2) Facilitating access to justice for natural and legal persons, and facilitating judicial cooperation between the Member States are among the main objectives of the area of freedom, security and justice enshrined in Title V of Part Three of the Treaty on the Functioning of the European Union.
(3) For the purposes of enhancing judicial cooperation and access to justice, legal acts of the Union providing for communication between competent authorities, including Union agencies and bodies, and between competent authorities and natural and legal persons, should be complemented by conditions for conducting such communication through digital means.
(4) This Regulation seeks to improve the effectiveness and speed of judicial procedures and facilitate access to justice by digitalising the existing communication channels, which should lead to cost and time savings, reduction of the administrative burden, and improved resilience in force majeure circumstances for all authorities involved in cross-border judicial cooperation. The use of digital channels of communication between competent authorities should lead to reduced delays in processing of the cases, which should benefit individuals and legal entities. This is also particularly important in the area of cross-border criminal proceedings in the context of the Union’s fight against crime. In this regard, the high level of security that digital channels of communication can provide constitutes a step forward, also with respect to safeguarding the rights of the persons concerned and protection of their privacy and personal data.
(5) It is important that appropriate channels are developed to ensure that justice systems can efficiently cooperate digitally. Therefore, it is essential to establish, at Union level, an information technology instrument that allows swift, direct, interoperable, reliable and secure cross-border electronic exchange of case related data among competent authorities.
(6) There are tools which have been developed for the digital exchange of case related data, without replacing or requiring costly modifications to the existing IT systems already established in the Member States. The e-Justice Communication via On-line Data Exchange (e-CODEX) system is the main tool of this type developed to date.
(7) Establishing digital channels for cross-border communication should contribute directly to improving access to justice, by enabling natural and legal persons to seek the protection of their rights and ascertain their claims, initiate proceedings, exchange case related data in digital form with judicial or other competent authorities, in procedures falling under the scope of Union law in the area of civil and commercial matters.
(8) This Regulation should cover the digitalisation of written communication in cases with cross-border implications falling under the scope of the Union legal acts in civil, commercial and criminal matters. These acts should be listed in Annexes to this Regulation. Written communication between competent authorities and Union agencies and bodies, such as Eurojust, where provided for by the legal acts listed in the Annex II, should also be covered by this Regulation. At the same time, whether a case is to be considered a matter with cross-border implications, should be determined under the legal acts listed in Annex I and Annex II to this Regulation. Where the instruments listed in Annex I and Annex II to this Regulation explicitly state that national law should govern a communication procedure between competent authorities, this Regulation should not apply.
(9) This Regulation should not apply to service of documents pursuant to Regulation (EU) 2020/1784 of the European Parliament and of the Council 30 and Regulation (EC) No 1393/2007 of the European Parliament and of the Council 31 , nor to the taking of evidence pursuant to Regulation (EU) 2020/1783 of the European Parliament and of the Council 32 and Council Regulation (EC) No 1206/2001 33 , which already prescribe their own rules on digitalisation of judicial cooperation.
(10) In order to ensure secure, swift, interoperable, confidential and reliable communication between Member States for the purposes of cross-border judicial procedures in civil, commercial and criminal matters, any appropriate modern communications technology should be used, provided that certain conditions as to the integrity and reliability of the document received and the identification of the participants in the communication are met. Therefore, a secure and reliable decentralised IT system should be used. Accordingly, it is necessary to establish such an IT system for data exchanges in cross-border judicial procedures. The decentralised nature of that IT system would enable secure data exchanges exclusively between one Member State and another, without any of the Union institutions being involved in the substance of those exchanges.
(11) The decentralised IT system should be comprised of the back-end systems of Member States and the Union agencies and bodies, and interoperable access points, through which they are interconnected. The access points of the decentralised IT system should be based on e-CODEX.
(12) For the purposes of this Regulation, Member States should be able to use instead of a national IT system, a Commission-developed software (reference implementation software). The Commission should be responsible for the creation, maintenance and development of this reference implementation software in accordance with the principles of data protection by design and by default. The Commission should design, develop and maintain the reference implementation software in compliance with the data protection requirements and principles laid down in Regulation (EU) 2018/1725 of the European Parliament and of the Council 34 and Regulation (EU) 2016/679 of the European Parliament and of the Council 35 , in particular the principles of data protection by design and by default as well as high level of cybersecurity. The reference implementation software should also include appropriate technical measures and enable the organisational measures necessary for ensuring a level of security and interoperability which is appropriate for the exchange of information in the context of cross-border judicial procedures.
(13) In order to provide swift, secure and efficient assistance to applicants, written communication between competent authorities, such as courts and Central Authorities established under Council Regulation (EC) 4/2009 36 and Council Regulation (EU) 2019/1111 37 , should, as a rule, be carried out through the decentralised IT system. In exceptional cases, other means of communication may be used if those are found to be more appropriate for the purposes of ensuring flexibility. However, the decentralised IT system should always be considered the most appropriate means for exchanging forms between competent authorities established by the legal acts listed in Annex I and Annex II to this Regulation.
(14) Transmission through the decentralised IT system could be impossible due to a disruption of the system or where the nature of what has to be transmitted makes transmission by digital means impracticable, such as the transmission of physical/material evidence. Where the decentralised IT system is not used, communication should be carried out by the most appropriate alternative means. Such alternative means should entail, inter alia, transmission being performed as swiftly as possible and in a secure manner by other secure electronic means or by postal service.
(15) For the purposes of ensuring the flexibility of judicial cooperation in certain cross-border judicial procedures, other means of communication could be more appropriate. In particular, this may be appropriate for direct communication between courts under Regulation (EU) 2019/1111 and Regulation (EU) 2015/848 of the European Parliament and the Council 38 , as well as direct communication between competent authorities under the Union legal acts in criminal matters. In such cases, less formal communication means, such as e-mail, could be used.
(16) In relation to the components of the decentralised IT system, which are under the responsibility of the Union, the entity managing the system’s components should have sufficient resources in order to ensure their proper functioning.
(17) For the purpose of facilitating access of natural and legal persons to the competent authorities, this Regulation should establish an access point at Union level (European electronic access point), as part of the decentralised IT system through which natural and legal persons should be able to file claims, launch requests, send and receive procedurally relevant information and communicate with the competent authorities, for cases covered by this Regulation. The European electronic access point should be hosted on the European e-Justice Portal, which serves as a one-stop-shop for judicial information and services in the Union.
(18) Member States should be responsible for the establishment, maintenance and development of national electronic portals (national IT portals) for the purposes of electronic communication between natural and legal persons and the respective authorities which are competent in the proceedings under the legal acts listed in Annex I.
(19) In the context of the communication in cross-border cases of natural and legal persons with competent authorities, electronic communication should be used as an alternative to the existing means of communication. Notwithstanding, to ensure that access to justice through digital means does not contribute to further widening of the digital divide, the choice of the means of communication between electronic communication, as provided by this Regulation, and other means of communication should be left to the discretion of the individuals concerned. This is particularly important in order to cater for the specific circumstances of disadvantaged groups and people in situation of vulnerability, such as children or older people, who may lack the requisite technical means or digital skills to access digital services.
(20) In order to enhance electronic cross-border communication and transmission of documents through the decentralised IT system, the European electronic access point and national IT portals, where available, those documents should not be denied legal effect and should not be considered inadmissible in the proceedings solely on the grounds that they are in electronic form. However, that principle should be without prejudice to the assessment of the legal effects or the admissibility of those documents, which may constitute evidence in accordance with national law. It should also be without prejudice to national law regarding the conversion of documents.
(21) In order to facilitate oral hearings in proceedings in civil, commercial and criminal matters with cross-border implications, this Regulation should provide for the optional use of videoconferencing or other distance communication technology for the participation of the parties in such hearings. The procedure for applying and conducting of hearings through videoconferencing or other distance communication technology should be governed by the law of the Member State conducting the videoconference. Conducting a hearing by videoconferencing or other distance communication technology should not be refused solely based on the non-existence of national rules governing the use of distance communication technology. In such cases the most appropriate rules available under the national law, such as rules for taking of evidence, should apply mutatis mutandis.
(22) This Regulation should not apply to the use of videoconferencing or other distance communication technology in civil, commercial and criminal proceedings where such use is already foreseen in the legal acts, listed in Annex I and Annex II.
(23) The Regulation (EU) No 910/2014 of the European Parliament and of the Council 39 sets up a common Union regulatory framework for recognition of electronic identification means and electronic trust services (electronic signatures, electronic seals, time stamps, electronic delivery services and website authentication) that are recognised across borders as having the same legal status as their physical equivalents. Therefore, this Regulation should apply the e-IDAS trust services for the purposes of digital communication.
(24) For the purposes of facilitating payment of fees in cases with cross-border implications falling under the scope of the Union legal acts in civil and commercial matters, electronic payment of fees should be possible in an online environment by payment methods widely available throughout the Union, such as credit cards, debit cards, e-wallet and bank transfers.
(25) It is necessary, for the purposes of ensuring the full attainment of the objectives of this Regulation and for the alignment of the existing Union legal acts in civil, commercial and criminal matters with this Regulation, that amendments are introduced in the following legal acts: Regulation (EC) No 1896/2006 of the European Parliament and of the Council 40 , Regulation (EC) No 861/2007 of the European Parliament and of the Council 41 , Regulation (EU) No 655/2014 of the European Parliament and of the Council 42 , Regulation (EU) 2015/848 and Regulation (EU) 2018/1805 of the European Parliament and of the Council 43 . Those amendments seek to ensure that communication takes place in accordance with the rules and principles set out in this regulation. Amendments to Directives and Framework Decisions in civil, commercial and criminal matters are enacted in a Directive of the European Parliament and the Council …/… [Amending Directive] 44 .
(26) In accordance with paragraphs 22 and 23 of the Interinstitutional Agreement of 13April 2016 on Better Law-Making 45 , the Commission should evaluate this Regulation on the basis of the information collected through specific monitoring arrangements for each of the legal acts, listed in Annexes I and II to this Regulation in order to assess the actual effects of this Regulation and the need for any further action.
(27) The reference implementation software developed by the Commission as a back-end system should programmatically collect the data necessary for monitoring purposes and such data should be transmitted to the Commission. Where Member States choose to use a national IT system instead of the reference implementation software developed by the Commission, such a system may be equipped to programmatically collect those data and, in that case, those data should be transmitted to the Commission.
(28) In such cases where data cannot be collected automatically, and for the purpose of alleviating the administrative burden of data collection, each Member State should designate at least one court or competent authority for the purpose of establishing a monitoring sample. The court or competent authority designated in this way should be tasked with collecting and providing the Commission with data on its own proceedings which should serve to provide an estimate on the level of a given Member State of the data necessary for the evaluation of this Regulation. The designated court or competent authority should be representative of the scope of the Regulation insofar as the Regulation covers Union instruments in civil, commercial and criminal matters. In areas where authorities other than courts or prosecutors are considered as competent authorities within the meaning of this Regulation, such as notaries, the designated monitoring sample should be representative of their implementation of the Regulation as well.
(29) The application of this Regulation should be without prejudice to procedural rights as enshrined in the Charter of Fundamental Rights of the European Union 46 and Union law, such as the procedural rights directives 47 , and in particular to the right to an interpreter, the right of access to a lawyer, the right of access to the case file, the right to legal aid, and the right to be present at the trial.
(30) Regulation (EU) 2016/679 of the European Parliament and the Council and Directive (EU) 2016/680 48 of the European Parliament and the Council, apply to the processing of personal data carried out in the decentralised IT system. In order to clarify the responsibility for the processing of personal data sent or received through the decentralised IT system, this Regulation should indicate the controller of the personal data. For this purpose, each sending or receiving entity should be regarded as having determined the purpose and means of the personal data processing separately.
(31) In order to ensure uniform conditions for the implementation of this Regulation as regards the establishment of the decentralised IT system, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council 49 .
(32) Since harmonised digitalisation of cross-border judicial cooperation cannot be sufficiently achieved by the Member States acting alone, for reasons such as no guarantee as to the interoperability of IT systems of Member States and Union agencies and bodies, but can rather, by reason of coordinated Union action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.
(33) In accordance with Articles 1 and 2 of Protocol No 22 on the position of Denmark, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.
(34) [In accordance with Articles 1, 2 and 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, and without prejudice to Article 4 of that Protocol, Ireland is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.]
OR
In accordance with Article 3 and Article 4a(1) of Protocol No 21 on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union, Ireland has notified [, by letter of …,] its wish to take part in the adoption and application of this Regulation.[
(35) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EC) No 2018/1725 of the European Parliament and of the Council and delivered an opinion on […],