Civil Procedure

Legal aid in civil and commercial matters

Directive 2003/8/EC — improved access to justice in cross-border disputes by establishing minimum common rules relating to legal aid

It seeks to:

improve access to justice in cross-border civil cases;
establish EU-wide rules on legal aid;
make sure people who cannot afford legal help have access to it;
encourage cooperation on legal aid between EU countries.

It has applied since 31 January 2003. EU countries had to incorporate it into national law by 30 November 2004. The directive does not apply in Denmark.

KEY POINTS

This directive covers all civil matters, including:

business,
employment,
consumer protection.
It gives people who cannot afford legal representation the right to legal aid. It is for EU citizens and nationals of non-EU countries living in the EU.

Legal aid may include:

legal advice,
legal assistance and representation in court,
exemption from court fees,
exemption from certain fees in international cases (e.g. interpretation, translation, travel).
In addition, the directive introduces rules on processing applications.

National authorities must:
make sure applicants understand how applications are processed;
explain why they reject an application;
let applicants appeal against rejection.

To speed up applications, EU countries must provide the European Commission with a list of:
authorities that can send and receive applications
the languages in which they accept applications.

Standard application forms

Commission Decision 2004/844/EC establishes a standard form for legal aid applications.
Commission Decision 2005/630/EC sets out the standard form for sending legal aid applications between EU countries.
EU countries must ensure that the public and professional circles are informed via the European Judicial Network.

EU countries can make more generous arrangements for legal aid applicants if they want.

BACKGROUND

In 2000, the European Commission published a Green Paper on legal aid in civil matters with a view to taking stock of difficulties encountered by cross-border litigants and proposing solutions.
The Commission initiative was all the more necessary since existing conventions on the matter (the 1977 Strasbourg Agreement on the Transmission of Legal Aid Applications andthe Hague Convention to Facilitate the International Access to Justice, signed in 1980) had not been ratified by all EU countries.

DOCUMENTS

Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes (OJ L 26, 31.1.2003, pp. 41-47)

Successive amendments and corrections to Directive 2003/8/EC have been incorporated in to the original document. This consolidated version is of documentary value only.

Commission Decision 2004/844/EC of 9 November 2004 establishing a form for legal aid applications under Council Directive 2003/8/EC to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes (OJ L 365, 10.12.2004, pp. 27-34)

Commission Decision 2005/630/EC of 26 August 2005 establishing a form for the transmission of legal aid applications under Council Directive 2003/8/EC (OJ L 225, 31.8.2005, pp. 23-27)

Mediation in civil and commercial matters

A predictable legal framework can enable European Union (EU) citizens to benefit fully from the advantages of mediation* as a dispute resolution process, particularly in terms of cost-effectiveness and speed.

Directive 2008/52/EC of the European Parliament and of the Council of 21 May 2008 on certain aspects of mediation in civil and commercial matters

The directive aims to encourage the use of alternative methods of dispute resolution, particularly the use of mediation. It seeks to ensure a balanced relationship between mediation and judicial proceedings.

KEY POINTS

The directive applies to cross-border disputes in civil and commercial matters. It does not extend to:

revenue, customs or administrative matters;
the liability of an EU country for acts and omissions in the exercise of State authority;
disputes where one or more parties is domiciled or resident in Denmark.
EU countries must establish a procedure allowing parties to request the confirmation of an agreement. This confirmation can be by a judgment, decision or authentic act of a court or public authority. It will allow the mutual recognition and enforcement of an agreement throughout the EU under the same conditions as those established for court decisions in civil and commercial matters and in matrimonial matters and matters of parental responsibility.

Mediators or those involved in the mediation process are not obliged to give evidence in judicial proceedings regarding information obtained during that process, except if:

necessary for overriding considerations of public policy, particularly to protect the physical integrity of a person;
disclosure of the content of the agreement is necessary to implement or enforce that agreement.
EU countries must encourage the training of mediators as well as the development and application of voluntary codes of conduct for the profession.

BACKGROUND

In 2013 the EU published 2 new pieces of legislation on alternative dispute resolution:

Directive 2013/11/EU on alternative dispute resolution which ensures that consumers have access to quality alternative dispute resolution (ADR) entities for all kinds of contractual disputes with traders. To ensure such access, EU countries must establish national ADR infrastructures by January 2016. Mediation is one out of several forms of ADR on which EU countries can rely for establishing that infrastructure;
Regulation (EU) No 524/2013 on online dispute resolution (ODR), under which an EU-wide online platform will be set up for disputes that arise from online transactions. The platform will allow consumers to submit their disputes online and will operate in all EU official languages. It is scheduled to be accessible as of January 2016.
For more information see the Alternative and Online Dispute Resolution (ADR/ODR) on the European Commission’s website.

Mediation: a structured process in which 2 or more parties to a dispute attempt by themselves, on a voluntary basis, to reach an agreement on the settlement of their dispute with the assistance of a mediator. It may be initiated by the parties or suggested or ordered by a court or prescribed by the law of an EU country.

Mediator: a third person who is asked to conduct mediation in an effective, impartial and competent way. The status or occupation of this person in the EU country concerned is not relevant, nor is the way in which the third person has been appointed or requested to conduct the mediation.

REFERENCES

Directive 2008/52/EC

Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Directive on consumer ADR) (OJ L 165, 18.6.2013, pp. 63-79)

Regulation (EU) No 524/2013 of the European Parliament and of the Council of 21 May 2013 on online dispute resolution for consumer disputes and amending Regulation (EC) No 2006/2004 and Directive 2009/22/EC (Regulation on consumer ODR) (OJ L 165, 18.6.2013, pp. 1-12)

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions – Towards a European Horizontal Framework for Collective Redress (COM(2013) 401 final of 11.6.2013)

Transmission of judicial and extrajudicial documents between EU countries

Regulation (EC) No 1393/2007 on the service in EU countries of judicial and extrajudicial documents in civil or commercial matters

It aims to put in place a fast, secure and standardised transmission procedure for judicial* and extrajudicial documents* in civil or commercial matters between parties located in different European Union (EU) countries.

It has applied since 13 November 2008, except for Article 23 (on EU countries’ communication and publication of certain information) which has applied since 13 August 2008.

Scope

This regulation applies to civil or commercial matters where it is necessary to transmit judicial or extrajudicial documents for transmission from one EU country to another.
It does not apply to:
revenue,
customs,
administrative affairs or
cases of state liability for actions or omissions in the exercise of state authority.

The regulation does not apply where the address of the person to be served is unknown.
Further improving the service (transmission) of judicial and extrajudicial documents

The regulation, which replaces Regulation (EC) No 1348/2000 introduces:

a rule stipulating that the receiving agency has to take all necessary steps to transmit the document as soon as possible, and in any event within 1 month of receipt;
a standard form to inform the addressee of their right to refuse to accept the document to be served — at the time that it has been served — or by returning the document to the receiving agency within a week;
a rule stipulating that costs which arise from recourse to a judicial officer or to a person competent under the law of the EU country addressed must correspond to a single fixed fee laid down by that country in advance, respecting the principles of proportionality and non-discrimination;
uniform conditions for service by postal services (registered letter with acknowledgement of receipt or equivalent).

Agencies within EU countries ensure transmission

EU countries designate the agencies that are responsible for transmitting and receiving documents. They must provide the European Commission with their names and addresses, the geographical areas to which they apply, and their accepted languages and means of receipt of documents.

Each EU country also has a central body that is responsible for supplying information to the agencies, resolving any difficulties that may arise and forwarding requests for service by the transmitting agency to the relevant receiving agency in exceptional circumstances.
A federal state, one where there are several legal systems or which has autonomous territorial units, may name more than one such agency or central body. The designation is valid 5 years and maybe be renewed at 5-year intervals.

Speeding up the serving of judicial and extrajudicial documents

The applicant forwards documents to the transmitting agency and bears any costs of translation prior to transmitting the document. The transmitting agency is required to advise the applicant that, in the event that the document is not in a language which the addressee understands or in the official language of the EU country where service is to be effected, the latter can refuse to accept the document.

Documents must be transmitted directly and as soon as possible between the agencies by any appropriate means of transmission, as long as they are legible and faithful to the original. A request using the standard form as annexed to the regulation must be attached in one of the accepted languages that the EU countries indicate. The documents are exempt from legalisation or any equivalent formality. A receipt must be sent within 7 days by the receiving agency. The latter has to contact the transmitting agency as soon as possible in case of missing information.
Serving documents according to the law of the receiving EU country within 1 month

The receiving agency should either serve the document itself or have it served within 1 month. If this is not possible, the receiving agency must inform the transmitting agency and continue to try to serve the document. Serving is done according to the law of the receiving EU country, or by a particular method, if this is requested by the transmitting agency and it conforms to the national law. When service has been carried out, a certificate of completion of the formalities involved must be completed in a language accepted by the EU country of origin and sent to the transmitting agency.

The date of service will be the date on which the document is served, according to the law of the EU country addressed, except where it must be addressed within a particular period according to the law of that country. The service must not incur costs or taxes in the EU country addressed, except if there has been a particular method of service or recourse to a judicial officer there. In that case, it is up to the applicant to bear the costs. EU countries have to fix a single fee in advance, and communicate it to the Commission.

Documents may also be served directly by using registered post with a receipt or via the judicial officers, officials or other competent persons of the EU country addressed, if this is permitted by the country in question. In exceptional circumstances, documents may be forwarded to agencies of another EU country via consular or diplomatic channels.
Informing the addressee about the right to refuse the document to be served

The receiving agency informs the addressee of their right to refuse the document, if it is not written in a language that he or she understands or in the official language of the EU country where service takes place. The refusal must take place at the time of service or by returning the document to the receiving agency within a week.
If the document is a writ of summons (an official order for someone to appear in a court of law) or equivalent and the defendant does not appear, a judgment may not be pronounced until it is sure that the document was served according to the EU country’s domestic law, it was delivered and the defendant had sufficient time to submit a defence. However, judgment may be delivered if the document was transmitted by one of the methods laid down in the regulation, and if more than 6 months have elapsed and no certificate of any kind has been obtained in spite of every reasonable effort by the competent authorities of the EU country addressed. If the defendant did not know about the document in time to appear, it is still possible to apply for relief within a reasonable time after finding out about the judgment.

The Commission should provide and regularly update a manual containing the information provided by the EU countries. By 2011, and every 5 years subsequently, it must present a report on the regulation’s application, focusing on the agencies’ effectiveness.

DOCUMENTS

Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No 1348/2000 (OJ L 324, 10.12.2007, pp. 79-120)

Successive amendments to Council Regulation (EC) No 1393/2007 have been incorporated into the original text. This consolidated version is of documentary value only.

Taking of evidence in civil and commercial matters

Regulation (EC) No 1206/2001 on cooperation between the courts of the EU countries in the taking of evidence in civil or commercial matters

It aims to improve and simplify judicial cooperation among EU countries and to speed up the taking of evidence in legal proceedings in civil and commercial matters.

Scope

The regulation applies in civil and commercial matters where the court of an EU country:

requests the competent court of another EU country to obtain evidence;
requests permission to gather evidence itself in another EU country.
The request should be made to obtain evidence which is intended for use in judicial proceedings, started or considered.

Direct transmission between the courts

EU countries must draw up a list of the courts authorised to obtain evidence and indicate their territorial or special jurisdiction (such as a special court that might have powers to confiscate criminal assets). Requests are directly transmitted by the court before which the proceedings are taking place or are planned (the ‘requesting court’) to the court of the EU country gathering evidence (the ‘requested court’).

Each EU country must designate a central authority responsible for:

supplying information to the courts;
seeking solutions to any difficulties regarding transmission;
forwarding, in exceptional cases, a request to the competent court.

Form and content of the request

The request must be lodged using the form specified in this regulation. This form must contain certain details, such as:

the name and address of the parties to the proceedings,
the nature and subject matter of the case,
a description of the taking of evidence to be performed.
Requests must be drafted in the official language of the EU country of the requested court or in any other language which that country indicates it can accept.

Execution

Requests are executed in accordance with the law of the requested EU country. The request must be executed within 90 days of receipt.

The execution of a request may be refused only if:

the request does not fall within the scope of the regulation (if, for instance, it concerns criminal and not civil or commercial proceedings);
the execution of the request does not fall within the functions of the judiciary;
the request is incomplete;
a person of whom a hearing has been requested claims a right to refuse, or a prohibition, from giving evidence;
a party has not paid the deposit or advance relating to the costs of consulting an expert.

Where a request is refused, the requested court must notify the requesting court within 60 days of receipt of the request.

If permitted by the law of the country of the requesting court, representatives of the court of that country are entitled to be present when the requested court undertakes the requested act. The parties and their representatives (if any) may also be present.

The regulation does not rule out 2 or more EU countries from concluding or maintaining agreements to speed up or simplify the execution of a request.

Report

In 2007, the European Commission published a report on the application of the regulation. It concluded that certain measures still needed to be taken in order to improve its functioning. These concerned:

improving the legal professions’ level of knowledge of the regulation;
ensuring the deadline of 90 days set for executing requests is complied with;
making greater use of technologies, specifically videoconferencing.

Public consultation

In December 2017, the Commission launched a public consultation on the modernisation of judicial cooperation in civil and commercial matters in the EU. The consultation covers both Regulation (EC) No 1393/2007 on the service of documents and the regulation covered in this summary.

FROM WHEN DOES THE REGULATION APPLY?

The regulation has applied since 1 January 2004 except for:

Article 19 (concerning the creation by the Commission of a manual of implementing rules),
Article 21 (a list of agreements or arrangements in force between EU countries that they must provide to the Commission) and
Article 22 (information EU countries must provide to the Commission on rules governing the operation of their national courts and competent authorities),
all of which have applied since 1 July 2001.

Denmark is not participating in this regulation.

MAIN DOCUMENT

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 (OJ L 174, 27.6.2001, pp. 1-24)

Successive amendments to Regulation (EC) No 1206/2001 have been incorporated in the original text. This consolidated version is of documentary value only.

Proposal for a Regulation of the European Parliament and of the Council 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, 31.5.2018)

Commission Staff Working Document — Impact Assessment — Accompanying the document Proposal for a Regulation of the European Parliament and of the Council 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 (SWD(2018) 285 final, 31.5.2018)

Civil judicial cooperation and agreements with non-EU countries

Regulation (EC) No 662/2009 — negotiation and conclusion of agreements between EU and non-EU countries in regard to the law applicable to contractual and non-contractual obligations

It aims at ensuring coherence in the EU’s external action in an area now falling within the exclusive competence of the EU.
It establishes a procedure of authorisation for an EU country to amend an existing agreement or –– to negotiate and conclude a new agreement with a non-EU country related to specific matters of applicable law in contractual and non-contractual obligations*. The procedure is subject to strict rules and has to be considered exceptional.

Scope

The regulation applies to agreements concerning particular matters falling, entirely or partly, within the scope of Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I) and Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II).

Notification: where an EU country intends to enter into negotiations in order to amend an existing agreement or to conclude a new agreement falling within the scope of the regulation, it must notify the European Commission in writing of its intention as soon as possible before the envisaged opening of formal negotiations.

Confidentiality: the Commission has to treat the information communicated by the EU country as confidential, if so requested.

Assessment:

the Commission must:firstly, check that no relevant negotiating mandate for concluding an EU-level agreement with the non-EU country concerned is envisaged within the next 24 months;
if not, verify that there is a genuine specific interest of the EU country for the agreement and that the envisaged agreement would not undermine the effectiveness of EU law and the object and purpose of the EU external relations policy; and
if necessary, request further information.

Authorisation of negotiations:

if the conditions are met, the Commission authorises the EU country to open formal negotiations on the agreement. The Commission may propose negotiating guidelines as well as the inclusion of particular clauses in the envisaged agreement.

Participation: the Commission may participate as an observer in the negotiations, and otherwise should be kept informed of progress and results.

Clauses in the agreement: where is is authorised, the agreement will in any case have to stipulate

that the agreement is fully or partially terminated in the event of a subsequent agreement between the EU and the same non-EU country on the same subject matter; and
that a subsequent agreement between the EU and the non-EU country on the same subject matter direct replace the relevant clauses of the agreement.
Authorisation of conclusion: before signing the agreement, the EU country must notify the outcome of the negotiations and submit the text of the agreement to the Commission, for authorisation of conclusion after verifying that the conditions are met.

Refusal: the regulation sets out the procedure for and consequences of the Commission’s refusal to authorise negotiations or the conclusion of the agreement.

Review and expiry

The regulation expires 3 years after the submission by the Commission — no earlier than 7 July 2017 — of a report on its application. In that report, the Commission must indicate whether it recommends that this regulation be replaced at its expiry by a new regulation.

Any negotiation underway at the date of expiry may continue.

It has applied since 20 August 2009.

BACKGROUND

This regulation should be seen in the context of the EU’s exclusive external competence for these areas of civil law. Before the adoption of the relevant internal EU Regulations (Rome I and Rome II), the EU countries themselves concluded agreements with non-EU countries in this area.

As part of the EU approach to judicial cooperation and agreements with non-EU countries in civil matters, this regulation comes along with Regulation (EC) No 664/2009 concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, parental responsibility and maintenance obligations which entered into force the same day and is based on a similar procedure.

DOCUMENTS

Regulation (EC) No 662/2009 of the European Parliament and of the Council of 13 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries on particular matters concerning the law applicable to contractual and non-contractual obligations (OJ L 200, 31.7.2009, pp. 25-30)

Successive amendments to Regulation (EC) No 662/2009 have been incorporated into the original document. This consolidated version is of documentary value only.

Council Regulation (EC) No 664/2009 of 7 July 2009 establishing a procedure for the negotiation and conclusion of agreements between Member States and third countries concerning jurisdiction, recognition and enforcement of judgments and decisions in matrimonial matters, matters of parental responsibility and matters relating to maintenance obligations, and the law applicable to matters relating to maintenance obligations (OJ L 200, 31.7.2009, pp. 46-51)

Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) (OJ L 177, 4.7.2008, pp. 6-16)

Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) (OJ L 199, 31.7.2007, pp. 40-49)