EN    EN  
 EUROPEAN COMMISSION 
Brussels, 8.6.2011 
SEC(2011) 687 
  
COMMISSION STAFF WORKING PAPER 
EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT 
Accompanying document to the 
Proposal for a 
 
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 
on the rights of access to a lawyer and the ri ght of notification of custody to a third 
person in criminal proceedings 
{COM(2011) 326 final} 
{SEC(2011) 686}  
 
EN 1   EN EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT  
The impact assessment is for a measure on the ri ghts of access to a lawyer  and of notification 
of custody to a third person for suspects and acc used persons in criminal proceedings. This 
measure aims to set minimum rules governing th e right of access to a lawyer and notification 
of custody across the EU.  
Problems  
The general problems identified in the IA are that (1) there is insufficient mutual trust 
between judicial authorities of Member States; (2) there is insufficient level of protection of 
fundamental rights in criminal proceedings in the EU. The speci fic problem is that there is 
insufficient access to a lawyer and notificatio n of custody in many Member States. This 
presents in various ways. In several Member St ates there is currently no entitlement for a 
suspect to see a lawyer before  any police questioning and/or no entitlement to have the 
assistance of a lawyer during  the police questioning. The European Court of Human Rights 
has held that suspects are entitled both to see a lawyer as from the first police questioning and 
to have a lawyer play an active role in their defence during police questioning ( Salduz v 
Turkey , Brusco v France ). There are discrepancies betw een Member States about the 
possibility of waiving one's right to a lawy er. Evidence obtained without a lawyer being 
present has a different status from one Member State to another. Finally, in European Arrest 
Warrant proceedings, there are no EU rules gov erning legal advice for the person sought in 
both the issuing State and the exec uting State, which undermines trust further. All this is well 
illustrated using a number of case studies in the IA. In relation to notification of custody, the 
Committee for the Prevention of Torture (CPT) in its contact with detainees in the course of its country visits has identified repeated instances where although the right to notification of 
custody exists in statute, in practice it is not offered to all detainees or is offered with 
considerable delays (often only after a certain stage is reached – i.e. be ing brought before a 
judge) and they identified many instances wher e there is no feedback  to the detainee in 
respect of the contact ma de with their nominee. 
Subsidiarity
: It is considered that there is a need for EU action based on inter alia the cross-
border dimension of the problem given a m obile citizenship, including criminals; the 
shortcomings of ECHR and CPT enforcement mechanisms and the access to the full panoply 
of EU enforcement mechanisms th at would come with EU action  
Objectives  
Any measure(s) taken at EU level on the access to a lawyer should achieve the following 
general and specific objectives,  
General: • To improve judicial cooperation in the EU  
• To ensure an adequate level of protection of fundamental rights in criminal 
proceedings for all individuals  
Specific: • To reduce costs of delays, refusals, a ppeals in the execution of request for 
judicial cooperation between Member States. 
• To ensure that suspected or accuse d persons have adequate access to a 
lawyer throughout cr iminal proceedings 
 
EN 2   EN • To ensure that suspected or accused persons that are deprived of their 
liberty have the right to have the fact of this deprivation of liberty notified 
to a third party of  their choice,  
 
Options  
The policy options set out in the Impact Assessment are: 
• Policy option 1: Retention of the status quo.  This option would involve taking no action  at 
EU level.  
• Policy option 2 : Recommendation on good practice on suspects' and accused persons' right 
to access to a lawyer and to  notification of custody  
• Policy option 3 : Directive setting minimum rules applying the ECtHR acquis on access to 
a lawyer , (i.e the Convention and the case law of the European Court on Human Rights)  
and CPT recommendations on notification of cu stody and reinforcing the application of 
mutual recognition instruments. 
• This option would cover five specific aspe cts of the rights of access to a lawyer 
and notification of custody, and in partic ular would ensure prompt access to a 
lawyer, wouidl specify th e content of the access an d right to feedback on 
notification of custody, provide for a wa iver and remedies and apply to EAW 
proceedings in the executing and issuing states. 
• Policy option 4 : Directive applying CPT recomme ndation on notification of custody and 
setting further rules going beyond the ECtHR acquis  on access to a lawyer and reinforcing 
the application of mutual  recognition instruments. 
• This option would, in addition to what  is described under Option 3 (while 
providing the same right of no tification of custody), ensure  that access to a lawyer 
is granted ahead of (instead of upon) any policy questioning; it would impose 
mandatory defence across the board, and la y down a prohibition to use evidentiary 
material obtained in breach of the right to a lawyer.  
IMPACTS  
Effectiveness in meeting objectives:  
• Policy option 1: As the ECHR and the ECtHR jurisprudence and CPT recommendations 
are not uniformly implemented by Member St ates, the level of protection of suspects 
remains inadequate at present. Additionally, the ECHR and its juri sprudence do not cover 
certain aspects of the issue which are pivotal to ensure fair trial, e.g. EAW proceedings. 
• Policy option 2 : It is not certain that the non-binding Recommendation would be 
implemented fully by all Member States, partic ularly those which do not currently comply 
with minimum ECtHR standards. and CPT recommendations. 
• Policy option 3 : This option would have all the stre ngths of the legisl ative instrument 
(binding nature, high enforceability). In pa rticular: compliance with  the ECtHR acquis and 
CPT recommendations and judici al cooperation will be enhan ced by the following specific 
measures  
1. Temporal scope : providing access to a lawyer from the first police 
interrogation and no tification of custody from deprivation of liberty  
 
EN 3   EN 2. Material scope:  specific regulation of the activ ity a counsel can carry out and 
the right to notification reinforced by  the obligation to provide feedback  
3. Waiving the right to a lawyer :  
4. Consequences of violations : stipulatating that Member States must set up 
legal remedies in case of violati ons of the right to a lawyer  
5. EAW cases: The person subject to the warrant is assisted by a lawyer in both 
the issuing and the executing Member States.  
• Policy option 4 : Under this option, the Directive would, in addition to what is described 
under Option 3 (while providing the same right of notification of cust ody), ensure that 
access to a lawyer is granted ahead of  (instead of upon ) any policy questioning; it would 
impose mandatory defence acr oss the board; it would la y down a prohibition to use 
evidentiary material obtained in breach of the right to a lawyer. Therefore, these three 
additional elements (aspects 1, 3 and 4 respectiv ely) would enhance judi cial cooperation as 
follows: 
1. Temporal scope : to provide access to a lawyer already before the first police 
interrogation would ensure that the susp ect can prepare his defence ahead of 
the interrogation.  
2. Mandatory defence : the requirement that a suspect must be always assisted by 
a lawyer would represent the single bi ggest trust-boosting measure for judicial 
authorities. 
3. Consequences of violations : to provide at EU level that evidence obtained in 
breach of the right to a lawyer may not be used in court  
Impact on fundamental rights  
• Policy option 1: The fundamental rights will continue to be protected in a different manner 
according to each national system. The Charter of Fundamental Rights will be applied only 
when EU law is involved, for example under th e regime of the European Arrest Warrant. 
• Policy option 2 : The impact of this option and the enha ncement of the right to a fair trial, 
the right to defence of the suspect and accu sed and the protection against ill-treatment 
would depend on how Member States would implement EU recommendation.  
• Policy option 3 : The right to liberty and security (article 6 EU Charter; article 5 ECHR ). 
Right to an effective remedy and to a fair trial (article 47 EU Charter; articles 6 and 13 
ECHR) as well as the presumption of innoce nce and right of defence (article 48 EU 
Charter; article 6 ECHR) would all be enhan ced. Both the right of access to a lawyer and 
the right to notification of cu stody provide formal safeguards ag ainst ill-treatment and thus 
protect against a potential breach of prohibition of ill-treatment  (article 4 Charter and 
article 3 ECHR). The right to no tification of custody promotes the right to respect for 
private and family life  (article 7 Charter and article 8 ECHR) 
• Policy option 4 : The right to liberty and security  (article 6 EU Charter; article 5 ECHR), 
Right to an effective remedy  and to a fair trial  (article 47 EU Charter; articles 6 and 13 
ECHR) and the presumption of innocence and right of defence (article 48 EU Charter; 
article 6 ECHR) would all be en hanced. The right to an eff ective remedy would be further 
safeguarded by the introduction of the prohibition to use eviden tiary material obtained in 
violation of the right to legal advice at trial.  
 
EN 4   EN • Financial and economic impact  
• Policy option 1: Although  there are no immediate new financial burdens associated with 
this option, it will not lead to a reduction in  the costs to Member States' law enforcement 
budget and costs to individual suspects or accused persons incurred by appeals, aborted/delayed prosecutions linked to insufficient access to a lawyer.  
• Policy option 2 : depends on the level of Member States ' implementation of all or some of 
the provisions contained in the Recommendation. 
• Policy option 3 : The financial burden for the average Me mber State will be in the region 
of about € 300,000 for a large Member State and between € 4,100 and € 70,950 for a 
small Member State.  There will also be an economic and financial impact on individuals. 
This is quantified (roughly ) in the IA at about 1,500  € per person subject to an EAW. 
• Policy option 4 : The financial impact of this opti on on Member States can be estimated
 as 
high as € 179 million  for a large Member State and about € 110 million  for a medium-
sized Member State. As regards the financia l costs for individuals , they are estimated 
between 4,170 €  and 5,200 €  per suspect/accused person per case (individuals subject to 
criminal proceedings) and about 1,500 €  per person per case (indivi duals subject to EAW). 
Impact on domestic justice systems  
• Policy option 1 : The need to implement certain ECtHR rulings and CPT recommendations 
may even augment the existing divergence, in particular as there are indications that 
Member States interpret ECtHR pr onouncements in different ways. 
• Policy option 2 : It is unlikely that this effect would be any more significant than the effect 
of ECtHR rulings and CPT recommendations alone.  
• Policy option 3 : This option would ensure that domestic justice systems are broadly 
brought in line with the precepts of the ECHR and the ECtHR jurisprudence and CPT 
recommendations, for which some legislative reforms will be needed. 
• Policy option 4 : Significant legislative reforms will need  to be carried out to comply with 
the requirements of the Direct ive. Some Member States may have problems to accept some 
of these requirements posited by this option. 
• Comparison of options: 
Policy option 3 demonstrates the best combinatio n of costs and effectiveness in meeting the 
objectives. It is therefore th e preferred option:   
 
EN 5   EN  
Objectives/costs Policy option 1 Policy option 2:  Policy option 3: 
 Policy option 4: 
 
Savings due to 
better judicial 
cooperation  0 √ √√ √√[√] 
Impact on 
fundamental 
rights Low Low  Medium to high High 
Financial and 
Economic impact 
(see tables in 
Annexes V and 
VI for full 
explanation )   
 
01 
  
 
Variable, depending on 
the extent to which 
Member States would 
implement the 
provisions of the 
Recommendation  
  
For Member 
States: 
 
 
The cost of 
providing access to 
a lawyer in EAW 
proceedings in the 
executing Member 
State is estimated at 
about € 300,000 for 
a large Member 
State and between 
€ 4,100 and € 
70,950 for a small 
Member State 
[subject to the 
caveats mentioned 
in the table in § 
5.3.3 ]. 
 
NB. All other 
additional 
requirements 
imposed by the 
Directive in excess 
of Option 1 have 
been found to be 
cost-neutral. 
(see further 
analysis of all these 
data in the table 
under Annex V)  
  
 
For Member States: 
The cost of this option as 
concerns the start-date  
would be as high as € 
179 million  for a large 
Member State and about 
as € 
110 million  for a 
medium-sized Member 
State [subject to the 
caveats mentioned in the 
table in § 5.3.4]. .  
 
 
The cost of this option as 
regards the end-date  
would range between € 
309 million for a large 
Member State with a 
generous legal aid 
regime and € 137,046 
for a medium-sized 
member State with more 
restrictive access to legal 
aid. 
 
The cost of providing 
access to a lawyer in 
EAW proceedings  in the 
executing Member State 
is estimated at about € 
300,000 for a large 
Member State and 
between € 4,100 and € 
70,950  for a small 
Member State. 
 
NB. All other additional 
requirements imposed by 
the Directive in excess 
of Option 1have been 
found to be cost-neutral. 
(see further analysis of 
all these data in the table 
                                                 
1 As explained in § 5.3.1 above, however, this option will entail significant costs for Member States who 
are not compliant with the requirements of the ECHR. 
 
EN 6   EN in Annex VI)  
 
 For 
individuals : 
none  For individuals : 
none  
For individuals : 
about 1,500 €  per 
person subject to an 
EAW   
For individuals: 
1. Individuals subject to 
criminal proceedings: 
about 4,170 €  and 5,200 
€ per suspect/accused 
person per case.  
2. Individuals subject to 
EAW: about 1,500 €  per 
person subject to an 
EAW. 
 
Impact on 
domestic justice 
system 0 Low to medium Medium to high High 
Option 4 is evidently the most effective in ach ieving all the general a nd specific objectives; 
nonetheless Option 3 is only marginally less eff ective. In terms of ef ficiency, however, the 
costs for the Member States associated with Option 4 (in the region of  several hundreds of 
millions Euros) are incomparably bigger than th ose likely to be incurred as a result of Option 
3 (€ 300,000 per Member State). Therefore, the di fferent magnitude of costs does not appear 
to be offset by the marginal ga in in terms of reaching the objectives. As concerns the financial 
impact on individuals, there is also a marked  difference between options 3 and 4, with the 
latter costing up to several thousands Euros per individual per criminal case. 
EU ADDED VALUE AND PROPORTIONAL ITY OF THE PREFERRED OPTION  
The preferred option will guarantee that all su spects and accused persons across the EU have 
a right to adequate and effective access to a lawyer. In addition all suspects and accused persons who are deprived of their liberty will ha ve the right to have the fact of their custody 
notified to a third person. The Directive will create obligations on Memb er States which, on 
implementation, will be enforceable in Member States' courts. The European Court of Justice 
will provide a remedy for non-compliance, and th is, together with the Commission's power to 
launch infringement proceedings against Memb er States, will create strong incentives for 
Member States to comply with thei r obligations under the Directive.  
The right to access to a lawyer and to notificat ion of custody should be explicitly in the legal 
order of the EU given that ar ticles 4, 7, 47 and 48 of the Char ter of the EU provide for the 
protection against ill-treatment, the right to pr ivacy and family life, right to an effective 
remedy and a fair trial, as well as rights of defence and the presumption of innocence. Article 
82(2) of TFEU provides a clear legal basis fo r the establishment of minimum EU-wide rules 
in respect of the rights of individuals in criminal matters. 
 
EN 7   EN In addition, the preferre d option is expected to lead to sa vings owing to a reduction in the 
number of appeals, condemnations by the ECtHR or delay in judicial cooperation 
proceedings. Such savings can be estimated for a ll Member States for the next ten years in the 
region of € 3.73 million  to € 11.19 million  EUR.  
MONITORING AND EVALUATION  
As the Directive, at least to a certain extent, mirrors existing ECHR oblig ations or obligations 
that already exist in some form in a number of  Member States, it is expected that a two-year 
deadline would provide Member States with su fficient time to effect necessary changes to 
their respective national laws and practice. The combination of right of access to a lawyer and 
notification of custody in one measure with the same implementation date will facilitate 
Member States as in 21 Member  States; their statut ory provisions on access to a lawyer and 
notification of custody are currently in the same  piece of domestic legislation. In addition for 
many Member States, this will not be their first consideration of this issue as they can draw on responses many of them have already made to CPT recommendations on notification of 
custody. Judicial reforms recently carried out in some Member States with a view to aligning 
domestic legislation with the ECHR jurispruden ce show that very substantial changes can be 
effected within even a shorter time-frame.  
In addition to an Implementation Plan accomp anying the proposal for the Directive, the 
Directive will stipulate that Member States' should report on the effective implementation of 
legislative or non-legislative measures based on the nature of the proposed changes. The 
Commission envisages carryi ng out a specific empirical study with emphasis on data 
collection three to five years into the implementation of the proposal.