Opinion of the Economic and Social Committee on the "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"

(COM(2002) 13 final - 2002/0020 (CNS))

(2002/C 221/15)

On 6 February 2002, the Council decided to consult the Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 13 May 2002 (rapporteur working without a study group: Mr Cavaleiro Brandão).

At its 391st plenary session (meeting of 29 May 2002), the Economic and Social Committee adopted the following opinion by 109 votes in favour and one vote against, with no abstentions.

1. Objectives of the proposal

1.1. On 18 January 2002, following the Green Paper on legal aid in civil matters(1) (February 2000) and a hearing with national experts and professional circles concerned (February 2001), the European Commission adopted a draft directive aimed at setting up a European system of free legal aid in cross-border civil disputes and thereby increasing the resources available to citizens to ensure their rights of access to justice.

1.2. As the legal basis for its initiative, the Commission cites Article 61(c) of the Treaty, which commits to the objective of progressively establishing an area of freedom, security and justice and provides for adoption by the Council of measures in the field of judicial cooperation in civil matters to eliminate obstacles to the good functioning of civil proceedings [Article 65(c)].

1.3. According to the proposal, anyone involved in a civil dispute, acting as claimant or defendant, who does not have sufficient resources, may benefit from the services of a lawyer and be represented by him/her in court at no charge. The legal aid also covers the pre-litigation stage and extra-judicial procedures. The Member State of the forum provides the aid, including the costs resulting from the cross-border nature of the dispute, such as interpreting, translation and travel expenses. The Member State of residence of the claimant will bear the costs of a local lawyer, particularly in the pre-litigation phase. Reasons must be given for any rejection of a request for legal aid. The system will be managed by a network of bodies chosen by each Member State and empowered to send and receive aid applications. The Commission will also establish a standard form for the transmission of aid applications.

2. General comments

2.1. The Committee warmly welcomes the Commission proposal.

2.2. The fact is that the progressive integration of Europe and increasingly dense networks of personal, economic, commercial and business relations have resulted in an exponential rise in the number of cross-border legal disputes.

2.3. It is not just large companies that are involved in such disputes. It is now increasingly the case that small businesses and individual citizens face legal problems and questions beyond the borders of the Member State where they are from or where they are based.

2.4. Individuals or enterprises that feel the need to defend or assert their rights in a Member States other than their own have to overcome additional difficulties. These difficulties are considerably greater if the person concerned does not have adequate financial resources and is therefore forced to have recourse to a public legal aid scheme.

2.5. A person threatened with proceedings or wishing to bring proceedings abroad may need legal aid at three stages. Firstly, pre-litigation advice; secondly, the services of a lawyer in court and exemption from court costs; and thirdly, assistance at the stage of having a foreign judgment declared enforceable or being enforced(2).

2.6. The cross-border claimant has to deal with different arrangements from Member State to Member State, particularly with regard to the nature and scope of legal aid, as well as financial eligibility.

2.7. The Committee therefore endorses the Commission's intention as expressed in the present proposal to ensure that a cross-border claimant is treated in the same way as if he resided in the Member State of the forum and that the difficulties inherent in the cross-border nature of the dispute do not constitute an obstacle to the granting of legal aid.

2.8. The Committee also endorses the choice of a directive as the appropriate legal instrument for the proposed objectives, as it is an element in the process of creating a European area of freedom, security and justice, which has been expressly encouraged since the Tampere Council, and requires cooperation procedures between Member States and the establishment of common legal standards. The option of a convention as a legal alternative to the directive would be less suitable, particularly in view of the relative lack of success of the 1980 Hague Convention.

2.9. The proposal aims to guarantee access to justice in cross-border disputes. However, it also seems to point towards the establishment of common minimum standards at Member State level, particularly in the second paragraph of point 3 of the Explanatory Memorandum. Any doubts as to the purpose of the proposal which may arise from this must be clarified. Nevertheless, the Committee has no objection to the legal basis cited.

3. Specific comments

3.1. The first paragraph of Article 3 sets out the general principle that all persons shall be entitled to receive appropriate legal aid if they do not have sufficient resources. The Committee wholeheartedly supports this principle.

3.2. Under the second paragraph of Article 3, this aid is to include the services of a lawyer and/or "other person entitled by the law to represent parties in the courts". The alternative proposed is puzzling. Citizens' legal interests are best protected by professionals trained, organised and specialised for that purpose, i.e. by lawyers. It cannot therefore be of benefit to citizens' interests to include an unnecessary reference to vague alternative solutions.

3.3. Access to justice is a fundamental right and should be guaranteed for all citizens who are habitually resident in a Member State, as advocated in the Hague Convention of 25 October 1980 on international access to justice.

3.4. Article 6 enshrines the principle of non-discrimination in relation to third-country nationals, which merits the Committee's agreement and is in line with the thinking it has always advocated.

3.5. However, given that access to justice is a fundamental right, the Committee has reservations with regard to the proviso limiting the application of that principle and excluding from its scope third-country nationals whose residence status may not be regularised.

3.6. The first paragraph of Article 7 provides for the continuation of legal aid through the enforcement phase when enforcement takes place in the Member State of the forum. However, such aid should still be guaranteed even if enforcement is to take place in a Member State other than that of the forum (as will be the case when the sued party's assets are located in that other state).

3.7. Article 12 refers to emergency applications, for which it calls for a decision "within a reasonable time before the case comes to trial". The term "a reasonable time" may be interpreted very differently from one Member State to another, and does not guarantee a quick decision. It would be preferable to lay down a specific and fixed length of time.

3.8. Legal aid should not be denied in the cases mentioned in the fourth paragraph of Article 13. Such situations do not constitute a real alternative to the proposed system, and it is unreasonable to judge the financial capacity of applicants on the basis described.

3.9. The system of legal aid envisaged in the Commission proposal appears to be aimed at individuals. Article 15 extends the scope to not-for-profit legal persons, which the Committee welcomes.

3.10. However, the Committee would argue that the facility of legal aid should also be extended to enterprises whose financial situation demonstrably prevents them from exercising their rights in the normal way, as claimants or defendants, before the courts. In fact, in a good number of Member States at least, national legal aid schemes do not exclude enterprises, making it hard to understand why they should be discriminated against and excluded from the scope of a European system.

3.11. The Committee formally expresses its support for extending the legal aid arrangements to alternative procedures for settling disputes, as it appreciates that such alternative procedures may, in an ever increasing number of cases, be quicker and more appropriate, and that, as such, they have gradually been integrated into legal systems, and should be integrated still further. It should be borne in mind that the survival of an enterprise and the jobs it provides may depend on its capacity to go to court and to assert its rights.

3.12. The Committee would reiterate here two recommendations which it made in its opinion on the Proposal for a Council Decision on the creation of a European Judicial Network in Civil and Commercial Matters(3).

3.12.1. Firstly, in view of the linguistic difficulties which would naturally arise in relations between the different bodies called upon to communicate, within the network of contacts and between national jurisdictions, it would be highly beneficial to adopt a single common language.

3.12.2. Secondly, and similarly in the interests of the consistency or uniformity of the system of (inter)communications within the network of contacts, it is essential to make sure that the technologies and programs used are compatible.

3.13. Finally, the Committee feels that the success of the proposed system will depend on how well it is publicised among the citizens and professionals in the field. Apart from keeping them informed, action will also be needed to cater to the training needs of these professionals. These points are glossed over in the proposal and should be addressed.

4. Conclusion

4.1. To summarise, the Committee warmly welcomes the Commission proposal, particularly as regards the overriding principles:

- the lack of resources of a person involved in a dispute, whether as claimant or defendant, as well as the difficulties arising from the cross-border nature of a dispute, should not constitute obstacles to effective access to justice;

- legal aid that is adequate allows the beneficiary effective access to justice and must include at least the effective support of a lawyer and exemption from, or coverage of, court costs;

- irrespective of their place of residence, EU citizens should be able to benefit from the legal aid granted to citizens of the Member State of the forum.

4.2. Nevertheless, the Committee would draw attention to the following points which need further consideration:

4.2.1. Access to justice is a fundamental citizens' right, and this being so, aid arrangements should cover all citizens who habitually reside in a Member State, regardless of their residence status.

4.2.2. Legal support should be guaranteed in the enforcement phase even if enforcement is to take place in a different Member State to that of the forum.

4.2.3. Citizens' interests must be protected by means of legal support from a suitably trained and specialised professional, i.e. a lawyer.

4.2.4. Enterprises whose economic situation warrants it should not be excluded from the possibility of legal aid.

4.2.5. To ensure the smooth functioning of the proposed system, it would be advisable to adopt a single common language and to make sure that the IT systems and programs to be used in the communication network between the various accredited national bodies are fully compatible.

4.2.6. Provision should be made for adequate technical and financial resources to publicise the system among the general public and to train professionals who will be involved in making it operative.

Brussels, 29 May 2002.

The President

of the Economic and Social Committee

Göke Frerichs

(1) Cf. Green Paper on Legal Aid, COM(2000) 51 final.

(2) Cf. Green Paper on Legal Aid - COM(2000) 51 final.

(3) OJ C 139, 11.5.2001.