EUROPEAN COMMISSION Brussels, 1.12.2021 SWD(2021) 392 final COMMISSION STAFF WORKING DOCUMENT



IMPACT ASSESSMENT REPORT

Accompanying the document Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the digitalisation of judicial cooperation and access to justice in cross-border civil, commercial and criminal matters, and amending certain acts in the field of judicial cooperation and





Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on amending Council Directive 2003/8/EC, Council Framework Decisions 2002/465/JHA, 2002/584/JHA, 2003/577/JHA, 2005/214/JHA, 2006/783/JHA, 2008/909/JHA, 2008/947/JHA, 2009/829/JHA and 2009/948/JHA, and Directive 2014/41/EU of the European Parliament and of the Council, as regards digitalisation of judicial cooperation {COM(2021) 759 final} - {SEC(2021) 580 final} - {SWD(2021) 393 final}



Table of contents 1.Introduction: Political and legal context 2.Problem definition 2.1.What is the problem? 2.1.1. Inefficient cross-border judicial cooperation 2.1.2. Barriers to access to justice in cross-border cases 2.2.What are the problem drivers? 2.2.1. Different level of digitalisation and voluntary use of existing digital channels 2.2.2. Recognition of electronic signatures/seals and legal validity/acceptance of electronic documents 2.2.3. Language barriers 2.2.4. Non-resilience of judicial systems to force majeure circumstances 2.3.How will the problem evolve? 3.Why should the EU act? 3.1.Legal basis 3.2.Subsidiarity: Necessity of EU action 3.3.Subsidiarity: Added value of EU action 4.Objectives: What is to be achieved?

4.1.General objectives 4.2.Specific objectives 5.What are the available policy options? 5.1.What is the baseline from which options will be assessed? 5.2.Description of policy options 5.3.Options discarded at an early stage 6.What are the impacts of the policy options? 7.How do the options compare? 8.Preferred option 9.How will actual impacts be monitored and evaluated? Annex 1: Procedural information Annex 2: Stakeholder consultation 2.1. Summary of the feedback on the Roadmap 2.2. Public consultation results Results of the public consultation Annex 3: Who is affected and how? Annex 4: Analytical methods Annex 5: COVID19 impact on civil proceedings – national measures Annex 6: Statistical data on the use of the e-Justice portal Annex7: The standard cost model for estimating administrative costs

Annex 8: What are the problems and their causes?



Glossary Term or acronym Meaning or definition TFEU Treaty on the Functioning of the European Union JHA Justice and home affairs JHA agencies and EU bodies Eurojust, Europol, Frontex, European Public Prosecutor’s Office (EPPO) and European Anti-Fraud Office (OLAF) e-CODEX e-Justice Communication via Online Data Exchange (communication system for the secure exchange of information developed for the judicial area) eEDES e-Evidence Digital Exchange System e-Justice portal The main tool that has been developed to improve access to information in the area of justice EJN-civil European judicial network in civil and commercial matters EJN-criminal European judicial network in criminal matters eu-LISA European Union Agency for the Operational Management of Large‑Scale IT Systems in the Area of Freedom, Security and Justice e-IDAS Electronic Identification Authentication and trust Services EAW European arrest warrant EIO European investigation order EPO European payment order CEHJ European Chamber of Judicial Officers/Bailiffs ICT system Information communications technology system – a set-up consisting of hardware, software, data and the people who use them. It commonly includes communications technology, such as the internet. IT Information technology IMI system Internal Market Information system iSupport IT system for the cross-border recovery of maintenance obligations under the EU 2009 Maintenance Regulation and the 2007 Hague Child Support Convention, which makes use of e-CODEX for communication SMEs Small and medium-sized enterprises – businesses whose staff numbers fall below certain limits RSB Regulatory Scrutiny Board Reference implementation software An user interface software developed for the purposes of distributed systems to be used by each Member State as an alternative to the national back-end system SMEs Small and medium-sized enterprises or small and medium-sized businesses - businesses whose personnel numbers fall below certain limits Transaction “Transaction” for the purposes of this document refer to the instance where a package of documents is sent cross-border with acknowledgement of receipt from a individual, legal entity, legal practitioner or court/competent authority in one MS to a court/competent authority in another MS.



1.Introduction: Political and legal context Today’s constantly expanding and evolving digital environment influences not only our daily lives and social contacts, but also the functioning of state institutions, including the judiciary. The ubiquitous process of digital transformation has tremendous potential to facilitate and accelerate judicial proceedings, including judicial cooperation across borders. The aim of digitalisation in this area is to improve access to justice, cooperation between judicial authorities in cross-border cases, and the efficiency and resilience of justice systems. In order to further e-Justice at EU level, the Council of the EU has adopted a series of strategies and action plans in the past few decades, most recently the e‑Justice strategy for 2019-2023 and the associated action plan for 2019-2023. The digitalisation of justice is part of the work to create “A Europe fit for the digital age”, as set out in the “Political Guidelines for the next European Commission 2019-2024”. The Commission’s guidelines acknowledge the central role that it, and the public sector in general, can play in stimulating the digital transformation process. e‑Justice is also seen as central to post-COVID recovery in improving access to justice and thus enhancing the business environment. More recently, the digitalisation of justice systems was deemed a key reform area in the context of the Recovery and Resilience Facility. The Commission developed its vision of the EU’s digital transformation by 2030 in its communication “2030 Digital Compass: the European way for the Digital Decade” (9 March 2021). The Communication points out that digital transformation enables modern, efficient justice systems, the protection of consumer rights and more effective public action, partly through better law enforcement and investigation capacities (which must be equipped as well as possible to deal with increasingly sophisticated digital crimes). The 2020 Strategic Foresight report recognises the crucial importance of the digital transformation of public administrations and justice systems throughout the EU. The transition should work for everyone, putting people first and opening up new opportunities for all types of stakeholder. It should therefore address a broad range of issues. In its July 2020 Security Union Strategy, the Commission committed to specific actions to enable law enforcement and justice practitioners to adapt better to new technology, thanks in particular to new tools, skills and investigative techniques. At the beginning of June 2021, the Commission adopted a proposal for amending the e‑IDAS Regulation to establish a framework for a European digital identity. The proposal addresses the increased private and public sector demand for electronic identity solutions that rely on specific attributes and ensure a high level of trust across the EU. The envisaged digital identity wallet storing attributes and credentials will allow individuals and legal entities to access public services. The European Council and the European Parliament both recognised the pivotal role of digitalisation in helping to relaunch and modernise the EU economy following the COVID‑19 crisis. On 9 June 2020, the Council adopted conclusions on “Shaping Europe’s digital future”, which recognise that ‘the digitalisation of the justice systems of the Member States has the potential to facilitate and improve access to justice throughout the EU’. The Council calls on the Commission ‘to facilitate the digital cross-border exchanges between the Member States both in criminal and civil matters and to ensure the sustainability and ongoing development of the technical solutions which have been developed for cross‑border exchanges’. The October 2020 Council conclusions on “Access to justice – seizing the opportunities of digitalisation” call on the Commission to take concrete action to digitalise justice, including by: ·examining the potential for modernising the core provisions of instruments in civil and commercial matters in line with the ‘digital by default’ principle; and ·considering to which judicial cooperation instruments in criminal matters the e‑Evidence Digital Exchange System (eEDES) might be extended. The December 2020 Council conclusions on the European arrest warrant (EAW) underline that digitalisation should play a central role in the operation of the EAW.

In November 2020, the Parliament and the Council adopted recasts of the Service of Documents Regulation and the Taking of Evidence Regulation. These require Member States’ competent authorities to communicate with each other by electronic means (e.g. to exchange standardised forms, documents, etc.). The work on the two Regulations was closely linked with the Commission’s overall priority of digitalisation and e‑Justice and the parallel work in the field of criminal justice. Following the Commission’s proposals in 2018, the co-legislators are negotiating a legislative framework on cross-border access to e-evidence. In this context, the Commission’s proposals already highlight the importance of electronic platforms, e.g. for the submission of requests, the authentication of orders and responses by service providers. The legislative framework established by the e-evidence proposal in criminal matters will rely on adigital channel for communication similar to the one considered in this initiative, for obtaining evidence from internet service providers. In December 2020, the Commission adopted a Communication on the digitalisation of justice in the EU, proposing a toolbox approach, i.e. a set of measures promoting digitalisation both for cross-border exchanges and at national level. It addressed the modernisation of the legislative framework for EU cross-border procedures in civil, commercial and criminal law, in line with the ”digital by default” principle, while ensuring all necessary safeguards e.g. to avoid social exclusion. The Commission will be proposing legislation on digitalising cross-border judicial cooperation procedures in civil, commercial and criminal matters, as announced in its 2021 work programme (see ”digital judicial cooperation” package). This is the flagship initiative of the “digital judicial cooperation package”. The package includes a proposal for amendments of the European Judicial Counter Terrorism Register and a proposal for the establishment of an IT platform to support the Joint Investigations Teams. All three initiatives aim at digitalising processes by employing different tools designed to serve the purposes of the respective procedures covered by them. The e-CODEX system is a suite of software components for EU judicial cooperation, developed by a consortium of Member States and co-financed by the Commission. It supports secure communication in civil and criminal proceedings by enabling the secure cross-border exchange of electronic messages and documents. Together with the December 2020 Communication (see above), the Commission adopted a legislative proposal for a Regulation of the European Parliament and of the Council on a computerised system for communication in cross-border civil and criminal proceedings (e-CODEX system). It establishes a legal basis for the e-CODEX system and guarantees its sustainability and future management by entrusting it to the European Union Agency for the Operational Management of Large‑Scale IT Systems in the Area of Freedom, Security and Justice (eu-LISA). The e‑CODEX system would thus be the most suitable tool for the digitalisation of cross‑border judicial cooperation procedures. The Council has reached agreement on a general approach on the Commission’s proposal. 2.Problem definition 2.1.What is the problem? This initiative aims to tackle two main problems: ·inefficient cross-border judicial cooperation; and · barriers to access to justice in cross-border cases. There is a comprehensive set of EU‑level instruments designed to enhance judicial cooperation and access to justice in cross-border civil, commercial and criminal cases. Many of these provide a legal basis for communication between authorities, including Justice and Home Affairs agencies and EU bodies, and between authorities and individuals or legal entities. However, most of them do not provide for engaging in such communication through digital means. Even where they do, as is the case with the Small claims regulation or European order for payment regulation, which foresees the possibility for communication via e-mail or other electronic means, the use of such means depends on the law of the Member States involved in the case. In addition, other gaps exist, such as the lack of secure and reliable digital communication channels or the non‑recognition of electronic documents, signatures and seals. e-CODEX, for example, is a system for secure communication in cross-border judicial cooperation procedures. However, the proposal for a Regulation governing e-CODEX only aims to establish a legal basis for e-CODEX and to regulate its governance and maintenance. It would not prescribe practical cases of application, which is to be achieved through this initiative. All this deprives judicial cooperation and access to justice of the use of the most efficient, secure and reliable channels available. These problems directly impact the national authorities’ ability to process cases (including the cross-border ones). National courts received (as per the 2021 EU Justice Scoreboard) an average of 2.3 new cases per 100 citizens in 2019, when the average duration of civil and commercial cases was around 247 days in the first instance. The latter figure does not reflect the fact that cases took on average twice as long in some countries and that final resolution often involves a long appeal process before the higher courts, which in some cases can take more than 7 years. A Council of Europe study has concluded that the length of court proceedings in both civil and criminal cases (which affects the basic right to a fair trial) still constitutes a major concern Europe-wide. Considering the volume of cases and the need to resolve them expediently, digital tools that make judicial authorities more efficient, including in their communication between each other and with individuals/legal entities, are key for a well‑functioning justice sector. However, at national level, the infrastructure for digital communication does not always allow the use of modern communication technologies. The 2021 EU Justice Scoreboard shows gaps in the provision of adequate infrastructure and equipment supporting secure electronic communication – 12 Member States do not have adequate infrastructure for electronic communication between courts and 19 Member States do not have such infrastructure for communication between prosecution offices. These gaps also affect the availability of digital infrastructure for use in cross-border cases as well as other issues specific to matters involving more than one Member State, such as the interoperability of communication systems, availability to foreign nationals, and rules governing identification and the legal validity of electronic documents and evidence. These in turn create problems such as procedural delays, limited access to courts and communication channels that are less effective, resilient and efficient than is technologically possible (involving extra costs, e.g. for sending registered letters, scanning documents and printing). Germany and Austria conducted a pilot project on the use of digital communication technologies for the European payment order, which showed that the use of such technologies generally brought cost savings. It costs EUR 0.07 to send an electronic message, while postage for a registered letter is EUR 3‑5, without counting the extra time and costs for printing, scanning and archiving paper documents. Another consequence of the lack of secure digital communication channels is the use of unsecure channels, such as e-mail. The impact assessment accompanying the Commission’s proposal for e-CODEX identifies potential shortcomings of using unsecure channels (e.g. as regards long‑term sustainability, data integrity and possible data leaks) and software that does not meet the requirements of EU judiciaries. With regards to the security of the communication, the public consultation indicated data protection concerns as the second most important disadvantage of digitalisation of cross-border judicial cooperation with 50% of respondents considering it as a disadvantage (after cybersecurity with 63%). As a result of faster processing, the amount of personal data processed within a given timeframe (e.g. every year) may also increase. The security of personal data processing is essential to protect data subjects. The e-CODEX system was designed specifically for the justice area, and uses encryption to ensure security. Using e-CODEX for cross-border exchanges would increase security and thereby mitigate the risk of security breaches. e-CODEX is therefore clearly an improvement compared to present exchanges using paper or unsecure e-mails. In addition, the digitalisation of existing data exchanges will not introduce any new personal data categories compared to what is already exchanged today through traditional means, nor will it affect the existing data processing arrangements. The increased personal data processing would be solely the result of increased efficiency/effectiveness and simplification, rather than of the digitalisation itself. Moreover, compared to the paper channel the use of digital tools would provide better traceability and audit capabilities and the possibility for automatic enforcement of personal data retention policies – the timely removal of personal data, which no longer needs to be stored. The above problems, along with their causes and consequences, are summed up in the problem tree (Figure 1), which shows the issues faced in cross-border cases by competent authorities, individuals and legal entities communicating with competent authorities in another Member State.





Figure 1: Problem tree 2.1.1.Inefficient cross-border judicial cooperation Efficient cross-border judicial cooperation involves secure, reliable and time-efficient communication between courts and competent authorities, to reduce administrative burden and increase resilience to force majeure circumstances. This is also central for individuals and legal entities, as the conduct of judicial proceedings in a reasonable time is a crucial aspect of the right to a fair trial, as enshrined in Article 47(2) of the EU Charter of Fundamental Rights. It is equally important for the effective and speedy prosecution of crimes. In addition, lengthy proceedings are problematic, because they trigger higher costs for defendants (lawyers’ fees, etc.) and longer detention times for individuals who have been arrested or are to be surrendered. Data exchanges in cross-border cases – mainly those between competent authorities and with JHA agencies and EU bodies, but also procedures directly involving individuals and legal entities – are overwhelmingly paper-based and no IT system fully supports the communication process. Among other disadvantages, the physical transmission of paper is inherently slow and relatively inefficient and unreliable. The average time declared by operators (postal services, carriers etc.) for posting a first-class letter in the EU-27 is 2 days (48 hours) and there are examples that this time may be much longer – between 3 to 15 days depending on the destination. It also often involves the sender making hard copies of digitally native documents, which are subsequently digitised by the recipient. This generates significant additional work and sacrifices many of the advantages of digitally native documents, such as searchability, resolution (in the case of pictures), etc. Moreover, due to the advance of digitalisation in all areas of life (including archiving) and the external costs of printing (in an economy that must become more sustainable), the limited availability of printing services may soon pose a practical threat to the traditional means of communicating with the judiciary. Paper-based transmission channels are also particularly vulnerable to crises, such as the COVID-19 pandemic, during which Member States’ lockdown measures have impeded access to courts and communication between competent authorities. By way of example, at present the procedure for obtaining an EPO includes the following steps: The applicant accesses the e-Justice portal to retrieve the standardised request form for issuing of an EPO and information regarding the competent court in the receiving Member State; The form is then filled in and, while online, automatically translated into the language accepted by the receiving Member State; The applicant prints the form, puts it in an envelope and goes to a post office (or a post box) to send it; On receipt of the request, the staff of the competent court in the receiving Member State have to register it manually (or, if there is an electronic case management system, scan it and enter the relevant data), create a case file and assign it to a judge; The assisting judicial clerk brings the case physically to the judge (or, if there is an electronic case management system, the judge receives it as an electronic file);The judge delivers a decision (using a standardised form), which is then printed, registered (manually or electronically) and sent to the applicant in the same way as the initial request was sent; The case is manually archived by the court staff. Currently, it is generally not possible to automate this process. However, this could be achieved by incorporating multilingual standard forms in the IT system, which would allow their automated generation, extraction of data from the database and automatic translation of the standardised content into all EU languages. It would also improve searchability, by making it easier to store data and retrieve it from the existing database. Automating the processing of EPO requests would significantly alleviate the administrative burden of processing them, making cross‑border proceedings much more efficient. Ultimately, the current delays mostly affect parties to the proceedings (individuals and legal entities) and their ability to protect and assert their rights effectively. Furthermore, the 2021 EU Justice Scoreboard states that reducing the length of court proceedings by just 1% (measured in disposition time) could boost firms’ growth. Even such a minimal improvement is associated with higher trade turnover and productivity growth. In criminal law, access to justice across borders is particularly problematic for victims of crime and defendants. Lengthy periods spent by foreign suspects in pre‑trial detention may be partly a result of the time it takes competent authorities to exchange European investigation orders (EIOs) through traditional paper‑based channels. Excessively long proceedings and high legal costs deter or even prevent victims from asserting their rights by taking cases to court. During the COVID-19 pandemic, courts have been unable to maintain normal operations. The European judicial network in civil matters (EJN-civil), as the main EU body mandated with facilitating cross-border cooperation in civil and commercial cases, has produced a comparative table on the pandemic’s impact showing that Member States were forced to take a number of measures in relation to judicial authorities, ranging from complete shutdowns to treating certain priority cases only. Meanwhile, activities that could be conducted digitally (e.g. by e-mail, videoconference, etc.) continued uninterrupted. However, these solutions often did not satisfy common security, interoperability, data protection and fundamental rights standards, nor could all Member States guarantee the procedural acceptance or effect of communications, due to the lack of harmonised EU-level rules. Judicial cooperation therefore needs to be made less dependent on external factors. 2.1.2.Barriers to access to justice in cross-border cases As a basic principle of the rule of law, ‘access to justice’ involves individuals and legal entities being able to rely on effective procedures and accessible remedies for the protection of their rights. However, mere access to judicial authorities does not automatically constitute effective access to justice. What needs to be safeguarded is the effectiveness of the procedures and the elimination of practical difficulties. Individuals and legal entities should be able to protect their rights and have their obligations determined in a swift, cost-effective and transparent way. Otherwise, bottlenecks such as prolonged procedures, geographical distance and red tape (excessive bureaucracy and adherence to statutory rules and formalities) impair access to justice and the right to an effective judicial remedy. In addition, the pandemic has shown that force majeure circumstances can severely inhibit the normal functioning of judicial systems. These general problems constitute barriers to access to justice, which could be mitigated by increased digitalisation of judicial procedures. The use of paper files and traditional transmission channels continues to dominate national and cross-border judicial proceedings. According to the findings of the national legal mapping conducted for the supporting study, in most Member States paper-based communications constitute the majority of all cross-border communications between courts/competent authorities of the Member States and between the latter and parties to proceedings. Stakeholders point to the challenges created by the current paper-based exchange of documents and deem it important to be able easily to submit documents digitally and receive information from relevant authorities in a digital format. However, there are no harmonised arrangements at EU level whereby individuals and legal entities can make and accept electronic submissions in cross-border cases. This state of affairs is in stark contrast to the increased use of digital tools in our everyday lives. It is particularly striking in a Europe of open borders, where individuals and legal entities can find themselves involved in litigation before the court of another EU country. The lack of digital tools can curtail access to justice in many other ways, especially in cross-border cases, where geographical distance, language differences and a lack of experience of a foreign legal system can make it very cumbersome and expensive. This is particularly true for people in remote or rural areas, or those affected by disability or vulnerability. Attending oral hearings in person is often considered stressful and time‑consuming. In criminal cases, remote video hearings may avert the need for surrender under an EAW and thus for long periods of pre-trial detention in a foreign country. Consumers and small (or even medium-sized) businesses may face disproportionate extra obstacles in pursuing low-value claims in civil cases that deter them from initiating a cross-border procedure. Delays caused by the lack of effective digital communication also impair effective access to justice. For instance, the evidence gathered in the study supporting the Impact Assessment indicated that victims and defendants risk being deterred or unable to enforce their rights by taking cases to court in cross-border cases. The results of the public consultation also indicate that there are barriers to access to justice which could be reduced by better use of digital tools. More than 80% of the respondents to the public consultation agree that the use of digital tools would lead to better accessibility of information and easier access to judicial procedures (≈86%). Additionally, respondents agree that it would result in time savings for both administrations and citizens/businesses (≈87%), and in lower costs of handling cases both for administrations and citizens/businesses (≈81%). 2.2.What are the problem drivers? The problems described above are the result of factors explored in this section. A detailed description of the problem drivers may be found in Annex 8. 2.2.1.Different level of digitalisation and voluntary use of existing digital channels Degrees of digitalisation vary across the Member States, although all EU countries improved their digital performance in 2020, with Finland, Sweden, Denmark and the Netherlands scoring highest, followed by Malta, Ireland and Estonia. However, a higher ranking on digital performance does not always mean that a Member State’s digital services will be available in cross‑border cases.

The 2021 EU Justice Scoreboard highlighted the different degrees to which judiciaries in the EU use the digital channel. The relevance of this issue was confirmed by the study carried out to support this impact assessment, with 49% of national stakeholders responding to a questionnaire seeing it as a barrier to digital communication. An additional 37.3% considered it a ‘somewhat relevant’ obstacle. The e-CODEX system developed by the Member States is a good tool for the digitalisation of cross-border judicial procedures. However, although its geographical coverage is expanding and the number of users increasing, actual uptake by Member States remains low. This has led to fragmentation and continued inefficiencies, including the use of the paper channel, with its attendant costs and environmental impact. The fragmentation also affects individuals’ and legal entities’ access to justice. Moreover, the fact that digitalisation is voluntary means that there is no guarantee that all Member States will be interconnected in the future. One of the main reasons for the fragmented use of digital tools for cross-border communication is the voluntary participation in cooperation initiatives. Even where digital communication is foreseen in EU legislation, there is currently no uniform legal and technical framework for employing it nor for the acceptance of such communication. Efforts to establish voluntary digital communication channels have been ongoing since 2009 with limited success. This is evidenced by the fact that, to date, cross-border digital exchanges are based on bilateral implementation of the e-CODEX system with little uptake from the Member States. As of February 2020 only 6 Member States participate in the e-CODEX European order for payment pilot and 5 Member States participate in the Small claims pilot. The low voluntary participation is not limited to e-CODEX – for instance the voluntary implementation of the insolvency registers interconnection was joined by only 9 Member States. At the same time a similar initiative, the Business Registers Interconnection (BRIS) for which the connection is mandatory, is joined by 26 Member States. Indeed, to our knowledge all successful EU-wide large-scale cross-border IT systems have been established on the basis of mandatory participation 2.2.2.Recognition of electronic signatures/seals and legal validity/acceptance of electronic documents At present, there are no harmonised arrangements for the recognition of electronic signatures and seals in the area of cross-border judicial cooperation. The e-IDAS Regulation defines electronic trust services and sets up a common EU regulatory framework for these (electronic signatures, electronic seals, time stamps, electronic delivery services and website authentication). Thus they are recognised across borders as having the same legal status as paper-based ones. The Regulation forms part of a predictable legal framework within which individuals, legal entities and public administrations can safely access services and carry out transactions online and across borders. e-IDAS solutions have reduced red tape for individuals and generated savings for businesses. However, unless explicitly referred to, the Regulation does not cover the provision of services used exclusively within closed systems between a defined set of participants with no effect on third parties. Currently, there is no such reference in any of the applicable civil, commercial and criminal law instruments providing for judicial cooperation or access to justice and included in the intended coverage of this initiative. Therefore, and in the absence of legislation Member State participating in e-CODEX pilots carried out to date were compelled to conclude ad hoc so-called “circle-of-trust” agreements, to ensure that electronic documents and signature/seals would be recognised in the pilot procedures. The legal validity of such agreements in the respective national systems is however doubtful. Even the seamless recognition of electronic signatures and seals across borders would not automatically result in the recognition of electronic documents. The legal validity and admissibility of documents transmitted electronically during judicial proceedings may be called into question by receiving Member States if not recognised in their national law. The experience clearly show that developing digital solutions without providing a legal basis for their use does not serve as an incentive for the MS to use these solutions. The issues of voluntary participation, non-recognition of electronic documents, signatures and seals and the lack of interoperability standards and tools were also recognised as key barriers by the consulted stakeholders for the purposes of the study. Respondents (≈82%) noted that such issues hamper the use of digital solutions in the communication between the competent authorities of the Member States and between those authorities and parties to the proceedings in civil and commercial cross-border proceedings (the conclusions are similar for the criminal cases). The legal validity and admissibility of documents transmitted electronically to another Member State is a relevant barrier for ≈74%. The fact that electronic signatures/seals used by the issuing Member State may not be recognised by the receiving Member State is considered as a relevant barrier to digitalisation by ≈71% of the stakeholders. The lack of interoperability at international level (e.g. with the IT systems of the courts of other Member States) is also a relevant barrier to the digitalisation for ≈79% of the consulted stakeholders. The public consultation demonstrated a similar result. 2.2.3.Language barriers Stakeholders point to language barriers as a problem in cross-border judicial cooperation, e.g. the issuing authority might need to translate documents into a language accepted by the receiving authority. Also, language issues mean that individuals are often not at ease when involved in judicial proceedings in another Member State. In cross-border litigation, serious problems can arise when one or more of the parties is unfamiliar with the official language of the court. As a consequence, interpreters must often be used during trials and hearings, and the law has to determine whether a given document has to be translated. For example, in low‑value cases (e.g. involving a traffic fine to be paid by a foreign tourist), language could constitute a barrier to access to justice. A person receiving legal documents in a foreign language might consider it cheaper to pay the fine than to contest it and incur disproportionate translation costs. 2.2.4.Non-resilience of judicial systems to force majeure circumstances The COVID-19 crisis has considerably impacted the functioning of Member States’ justice systems and EU cross-border judicial cooperation. Many cross‑border and national procedures have had to be suspended, de facto depriving many individuals and legal entities of effective access to justice. The pandemic has emphasised the need for further efforts towards the digitalisation of justice, including closer cooperation between Member States and with international partners, and the need to promote best practices in this area. 2.3.How will the problem evolve? Data on the frequency and trends in regards to cross-border exchanges in civil and criminal matters has been collected in the context of the supporting study. However, due to the lack of a harmonised statistical framework, the gaps in the data do not allow for conclusions about trends in cross-border cooperation to be made. This being said, it should be pointed out that the problem drivers above are linked to the increased EU mobility, primarily in the context of tourism, e-commerce, study abroad etc. There is a significant number of people who cross borders for the purposes of tourism – 64.7% of EU citizens aged 15 or more did so in 2019 and there is an upward trend in the number of nights that tourists spend in a country other than their own (from 100 in 2005 to 157.8 in 2019). Furthermore, by relying on the internet (which knows no borders), including for their work, individuals are increasingly exposed to situations that can lead to cross-border disputes. The number of people living in a foreign country is also trending upwards – Eurostat has found that, in 2019, 3.3% of EU citizens of working age (20 to 64) lived in another Member State, as compared to 2.4% in 2009. There is no hard evidence that the number of people living or working in a Member State other than their own increases the number of cross‑border disputes. However, there is likelihood of correlation between the number of people travelling between their place of residence and their country of origin and the number of the cross-border cases. With more and more people finding themselves in a cross-border situation, it is to be expected that the number of cross-border litigations will increase, placing an even greater burden on judicial systems. This trend is indirectly evidenced in the constant growth in the number of users of the e‑Justice portal, from 12 934 in January 2019 to 40 555 in June 2021 in the criminal law area and from 44 632 in February 2019 to 97 971 in June 2021 in the civil law area. There is no complete data on the number of cross-border cases as such statistics is often not prepared by the Member States. However, the size of the problem could be visualised by the number of cross-border cases, presented in more detail in Annex 7. For example, the number of exchanges of e-CODEX messages between Austria and Germany in the first quarter of 2021 on the European order for payment amounts to 574 messages sent from Germany to Austria and 863 messages sent from Austria to Germany. On an annual basis, Sweden, receives between 200 and 300 requests for issuing an European order for payment and 300 European arrest warrants. This tendency is likely to result in an increased workload for courts and a greater weight of expectation on them to deliver justice, provide individuals/legal entities with information, accept submissions and communicate with other authorities. A similar trend can be expected for other competent authorities dealing with cross-border judicial cooperation, such as central authorities, notaries and bailiffs.

New technologies have the potential to make judicial systems more efficient in this regard, by easing the administrative burden, shortening case‑processing times, making communication more secure and reliable, and partially automating case handling. However, the development of national IT solutions independently by the Member States, leads to a fragmented approach with a lack of interoperability. Even where common digital solutions are developed at EU level, their uptake in cross-border judicial cooperation procedures can be expected to advance slowly and in an uncoordinated manner while participation remains voluntary. This contrasts with rapid digitalisation in the private and commercial sector, which has been further accelerated by the COVID-19 pandemic. Individuals and legal entities (in particular, businesses) would benefit from having their rights protected and their obligations enforced by the kind of digital means that they are used to in their everyday private or commercial activity. A continued lack of uniform digital tools to fully support cross-border judicial cooperation will probably reinforce or maintain the tendency to rely on paper‑based communication, which results in financial costs and negative environmental impacts – currently the average cost per transaction is EUR 10.55 and estimations on an yearly basis show that 181 448 100 A4 standard 80g printing paper pages (out of which 31 833 000 for the individuals and legal entities) are used for communication purposes under the respective Union instruments with the overall average cost of EUR 2 216 160 (EUR 388 800 for individuals and legal entities). A continued lack of a coherent digital approach across Member States will also affect individuals’ and legal entities’ ability to use the most efficient tools to access justice. The ongoing e-CODEX pilot projects demonstrate benefits for courts, competent authorities, individuals and legal entities. However, they do not involve all Member States, have not resulted in a sufficient increase in the use of digital tools for cross‑border cooperation and cross-border access to justice, and are insufficient in themselves to bring about a common EU-level approach. 3.Why should the EU act? 3.1.Legal basis The use of digital channels for communication in cross border judicial proceedings would facilitate judicial cooperation in civil, commercial and criminal matters. Hence, the legal bases for this initiative are Articles 81 and 82 of the Treaty on the Functioning of the European Union (TFEU) . More specifically, the use of digital channels for communication would facilitate judicial cooperation and the effective access to justice in civil matters in line with Article 81(2) of the TFEU. Article 82(1) of the TFEU is the legal basis for the Union to act in the field of judicial cooperation to facilitate the cooperation between Member States’ judicial or other competent authorities in relation to criminal proceedings and the enforcement of decisions. While Article 82(2) of the TFEU cannot constitute a legal basis for the adoption of regulations, it is a valid legal basis for the proposed Regulation, since the Regulation will amend existing directives based on Article 82(2), both through its horizontal digitalisation provisions and through certain alignment amendments. 3.2.Subsidiarity: Necessity of EU action The above problems and their causes could have negative repercussions in terms of delays, security concerns and the reliability of communication in the processing of cross‑border cases. These could be mitigated by the use of modern technologies in the context of judicial case handling, be it in the area of civil, commercial or criminal law. Under Article 4(1)(j) TFEU, the competence to adopt measures in the area of freedom, security and justice is shared between the Union and the Member States. Therefore, Member States may act alone to regulate the use of digital communication channels in the context of judicial cooperation and access to justice. However, experience shows that, without EU action, progress can be expected to be very slow and that, even where Member States take action, it is very difficult to ensure interoperability without EU intervention. In addition, cross-border matters are beyond the reach of individual Member States, as national legal action cannot be expected to reach past national borders. Therefore, the objective of this initiative cannot be achieved in a sufficiently harmonised manner by the Member States acting on their own, but only at EU level. There are already EU‑level provisions on the conduct of communication, some of which even allow for the use of modern technology. However, none has ensured the creation of an adequate infrastructure for electronic communication from individuals, legal entities or competent authorities with the authorities of another Member State. Moreover, the provisions have not been adopted as a coherent whole on which judicial authorities can rely. EU action is necessary in order to harmonise the Member States’ efforts and establish a coherent framework for the existing EU rules. 3.3.Subsidiarity: Added value of EU action The added value of EU action lies in improving the efficiency, resilience, security and speed of cross‑border judicial procedures, by providing an impetus for the simplification and acceleration of communication between Member States’ authorities and with individuals and legal entities. Thus, the administration of justice‑related cases with cross‑border implications is expected to improve. Additional added value arises from driving forward the digitalisation of EU judicial cooperation for all Member States, as compared with the present situation, where only certain groups of Member States have taken action, resulting in a limited and fragmented response to the identified problems. Even in digitally well‑advanced Member States, existing tools are not always available for cross-border cases. The digitalisation measures are also linked to existing instruments in the area of cross-border legal cooperation and aimed at improving how they function. The establishment of an access point on the e-Justice portal would bring EU added value for individuals and legal entities who prefer to make submissions through a multilingual portal (with guidance in all EU languages) rather than through national portals, which will not necessarily have the same functionality. 4.Objectives: What is to be achieved? 4.1.General objectives The general objective of the initiative is to improve access to justice and the efficiency of cross-border judicial cooperation by ensuring the establishment and seamless use of digital tools. The COVID-19 crisis has shown the need for a more holistic approach to help modernise the European area of justice, make it resilient to emerging challenges, strengthen trust in Member States’ judicial systems and safeguard fundamental rights in the EU. In particular, the objective is to improve the efficiency of cross-border judicial cooperation in civil, commercial and criminal matters, and to enhance access to justice for individuals, legal entities and legal practitioners, while fully respecting fundamental and procedural rights, in particular the right to a fair trial and the rights of defence. These objectives can be achieved by deploying digital technologies to improve the context within which the communication takes place.

4.2.Specific objectives The following specific objectives are proposed in response to the problems identified above: I.ensure the availability and use of electronic means of communication in cross‑border cases between Member States’ courts/competent authorities and relevant JHA agencies and EU bodies, where such communication is provided for in EU legal instruments on judicial cooperation; II.enable the use of electronic means of communication in cross-border cases between individuals and legal entities, on the one hand, and courts and competent authorities, on the other; the possibility of individuals and legal entities to communicate in paper will be maintained. III.facilitate the participation of parties to cross-border civil and criminal proceedings in oral hearings through videoconference or other remote communication technology, for purposes other than taking evidence in civil cases; IV.ensure that documents are not refused or denied legal effect solely on the grounds of their electronic form (without interfering with the courts’ powers to decide on their validity, admissibility and probative value as evidence under national law); and V.ensure the validity and acceptance of electronic signatures and seals for electronic cross-border judicial cooperation and access to justice. The objectives of the proposed specific actions (operational objectives) are to ensure that the most rapid, secure and cost-effective technological solutions are used for communication in cross-border judicial cooperation procedures; ensure that exchanges of documents and data between courts/competent authorities of Member States and between the latter and parties to proceedings are executed expeditiously and efficiently; guarantee the legal validity of documents and commonly agreed types of electronic signatures/seals. The intervention logic of the initiative, linking the policy options with the objectives and the problems that have been identified, is presented in Figure 2. Figure 2: Intervention logic 5.What are the available policy options? The policy options that have been identified include a non-legislative recommendation and legislative action providing for optional or mandatory use of digital communication means (although individuals and legal entities would still have the choice of using traditional means). The options are described in detail below. 5.1.What is the baseline from which options will be assessed? Option 0 (baseline scenario) No action is taken to drive forward the digitalisation of cross-border judicial cooperation and the use of digital tools to improve access to justice. Member States’ provision of a digital channel for cross‑border judicial procedures remains voluntary and no further action is taken at EU level. Individuals’ and legal entities’ ability to file and follow up claims electronically or through videoconferencing tools, and judicial and other competent authorities’ ability to exchange judicial documents electronically depend on the Member States involved, and the existence of bilateral agreements among them, and thus remains uncertain. Member States can continue to regulate the use of electronic signatures/seals and data protection responsibilities in diverging ways. The likely consequences for the cross-border proceedings would be that interoperability and the lack of legal basis for digital services will remain an issue, which will prevent improving the efficiency of cross-border judicial cooperation. The uptake of digital communication technology would remain as demonstrated for the past use-cases. Existing barriers would remain, and access to justice, especially in case of force majeure circumstances would not be facilitated, which would lead to difficulties for the persons to ascertain their claims.

5.2.Description of policy options Option 1 (Non-legislative option) The Commission adopts a recommendation encouraging Member States to: ·enable and allow individuals and legal entities to make electronic submissions in cross-border cases through national IT systems and accept such electronic submissions from other Member States; ·allow parties to cross-border cases and their representatives (at their request) to participate in oral hearings by videoconference or other distance communication technology; ·incorporate standards on trust services in line with the e-IDAS Regulation; and ·allow for the electronic payment of court fees. At the same time, the Commission continues to build and expand the use of eEDES (and the decentralised IT system for the recast Service of Documents and Taking of Evidence Regulations) for instruments in civil, commercial and criminal matters, without providing a legal basis for its use. The practice of allowing parties to attend hearings via videoconference remains regulated only at national level, as do arrangements for the recognition of electronic documents and the use of electronic signatures and seals. With regards to the language barriers identified above, the current arrangements would continue, meaning that where the applicable EU instruments require translation or interpretation, the regime will remain the same. The Commission recommendation might include guidelines, but these remain non‑binding. Nevertheless, the recommendation would set certain standards to which the Member States may decide to adhere. That would be a step towards the establishment of compatible national IT systems. Option 2 (Legislative option) A legal instrument is adopted on the use of digital tools in the context of judicial cooperation and access to justice, including on the recognition and acceptance of electronic signatures and seals in cross-border civil, commercial and criminal cases. The instrument includes provisions establishing a secure electronic channel based on e‑CODEX (identified as the most appropriate technical solution in the impact assessment on the Commission’s proposal for a Regulation on e‑CODEX). This channel will be used for communication and exchanging information, data and documents between courts and competent authorities, with and between central authorities, and where relevant the JHA agencies and EU bodies. Provisions are also introduced in support of communication between individuals and legal entities, on the one hand, and Member States’ courts and competent authorities, on the other. The responsibilities of different data controllers and processors are formally determined by clarifying that the competent authorities under national law are to be regarded as controllers within the meaning of Regulation (EU) 2016/679 and Directive (EU) 2016/680 with respect to personal data processing. A reference to the general legal framework established by Regulation (EU) 2016/679 and Directive (EU) 2016/680 is made. Additional issues are addressed through suboptions in three areas, as set out below. 2.1 Removing barriers to cross-border judicial cooperation and introducing digital means supporting such cooperation (addressing specific objective i and iv). The legislative option could either require the use of the established digital communication channel in cross-border judicial cooperation or leave it to the discretion of the Member States. Common provisions would ensure the acceptance and legal validity of digital documents and evidence, and outline the data protection requirements inherent in cross-border communication. Suboption 2.1.a Voluntary use of digital channel The legal instrument allows Member States’ authorities to use a common, decentralised IT system for the purposes of cross-border communication and exchange of information, data and documents with each other. Suboption 2.1.b Obligatory use of digital channel The legal instrument requires Member States’ competent authorities (and central authorities established under EU law) and, where relevant, JHA agencies and EU bodies to use a common, decentralised IT system in communication with other Member States’ authorities in the context of judicial cooperation under the relevant EU law.

Such an obligation could be subject to well-defined and justified exceptions, such as force majeure, technical unavailability and the transportation of material that cannot be transferred via digital means (e.g. blood samples). This option is based on the assumption that the IT systems for exchanges of EIOs and the service of documents/taking of evidence, as developed by the Commission, will be extended to cross-border judicial communication. Member States will be able to connect their national IT system to these or to use those developed by the Commission free of charge. 2.2 Introducing legal and technical measures supporting access to justice in cross‑border cases (addressing specific objectives ii, iii and iv) As regards access to justice, the legislative proposal would introduce legal and technical measures governing digital communication between individuals and legal entities, on the one hand, and Member States’ competent authorities, on the other. This would include videoconferencing in cases other than taking of evidence in civil cases (which is already regulated in the Taking of Evidence recast regulation), as a means of access to justice. In the context of criminal proceedings, adequate safeguards of the right to a fair trial must be ensured, such as: ·the right to a confidential consultation with a lawyer (‘Access to a Lawyer Directive’) – the confidential interaction between lawyers and suspects or persons accused during any questioning must be ensured. The lawyer must be in a position personally and effectively to participate in any questioning. Speaking to a lawyer by videoconference cannot replace in-person counselling; ·the right to be present (‘Presumption of Innocence’ Directive) – remote hearings should not be imposed without the consent of the suspect or accused person; and ·the right to protection (Victims’ Rights Directive) – in order to avoid further victimisation, the detailed arrangements for hearings by videoconference, the location where the victim is heard, the presence of adequate in‑person support and other factors should all be taken into account. In both civil and criminal cases, the parties’ participation in oral hearings via videoconferencing or other distance communication technology would be subject to the same standards as in-person hearings as regards interpretation and the conduct of the proceedings in a language that the party understands. Common provisions would ensure the acceptance and legal validity of electronic documents and evidence, and outline specific data protection requirements for cross‑border communication. To facilitate access to justice, provisions would be introduced to allow for the online payment of court fees in EU cross-border cases. Suboption 2.2.a Voluntary acceptance of electronic communication The legal instrument does not oblige Member States to allow electronic communication between individuals/legal entities and competent authorities. National law determines whether parties can take procedural action through digital means. Member States are free to decide whether: ·to accept electronic communication from individuals/legal entities; ·to develop a national solution for such submissions; or ·to use an EU-developed solution (e.g. ‘small claims submissions’ pilot through the e-Justice portal). This option does not provide a legal basis for parties’ participation in oral hearings in cross‑border cases by videoconference. The development and use of such tools remains at the discretion of the Member States involved. Suboption 2.2.b Obligatory acceptance of electronic communication The legal instrument obliges Member States to accept electronic communication between individuals/legal entities and competent authorities. Such communication takes place via an access point to be established on the e-Justice portal or through portals at Member‑State level. This allows (but does not oblige) individuals/legal entities to file claims and communicate with courts (or other competent authorities) electronically in the context of the relevant EU law procedures. The access point is a user‑friendly tool accessible online at any time, in all Member States and in all EU languages, and is equipped with online guidance for filling in standardised forms and making submissions. Traditional, e.g. paper-based, means of communication are maintained for individuals/legal entities to use if they prefer. This suboption also provides a legal basis for parties to cross-border cases, and their representatives on request, to participate in oral hearings by videoconference or other distance communication technology, subject to:

·the availability of such technology; ·the court’s discretion, depending on the circumstances of the case; and ·the parties’ consent. In this case, the conduct of the oral hearing via videoconference or other distance communication technology is governed by the rules and procedures applicable to videoconferences for domestic cases. 2.3 Recognition and acceptance of electronic signatures and seals (addressing specific objective v) For the purpose of the legal instrument, the use of electronic signatures and seals needs to be considered. Suboption 2.3.a Non-regulation of trust services The legal instrument does not regulate the use of electronic trust services in the context of cross-border judicial cooperation and access to justice, allowing Member States to: ·develop their own methods and standards with regard to the use of electronic signatures and seals; and ·accept or reject communication from other Member States through the secure decentralised IT system, depending on national law and bilateral/multilateral trust agreements. Suboption 2.3.b Regulation of trust services The legal instrument regulates the use of e-signatures and e-seals by explicitly referring to the e‑IDAS Regulation, which would be needed in order to ensure the application of e-IDAS for communication in cross-border judicial procedures. It also clarifies the type of electronic signature or seal to be used for cross-border judicial procedures, i.e. simple, advanced or qualified by relying on the trust framework established by e-IDAS. In this way, harmonised arrangements are set out for ensuring the admissibility and recognition of electronic signatures and seals where digital technology is used in the context of judicial cooperation or access to justice. 5.3.Options discarded at an early stage A non-regulatory option involving a promotion campaign on the use of digital tools and e-CODEX for the purposes of communication in cross-border judicial procedures has been discarded. Such a campaign was considered not to constitute a real alternative to regulation and could in any case be carried out as part of the baseline scenario. The option of establishing a centralised IT system for the electronic exchange of information and data was also discarded. While it may be technically feasible to leverage an existing centralised IT solution, such as the Internal Market Information (IMI) system, the Commission considers that it is not appropriate. On the other hand, e‑CODEX, which was chosen as the most suitable solution for cross-border exchanges, is decentralised by nature. In addition, the use of a centralised IT system would be difficult to justify from the point of view of proportionality and subsidiarity, as all information, data and documents would be stored on Commission servers or the servers of the entity managing the system (e.g. eu-LISA), while these would not be party to the exchange. Moreover, this could involve a single point of failure as all data is stored in one place compared to a decentralised system where data is stored by each Member State. It would also render more complex the integration with current and future national systems and their evolution alongside the centralised system. The development of such a system would require separate efforts or technical modifications (e.g. to the IMI system). 6.What are the impacts of the policy options? The impacts of the policy options are discussed below. The detailed analysis is presented in Annexes 1, 4 and 9, which set out the data sources, methodology and standard cost model computation that have been used. Option 0 – Baseline scenario

If no action is taken, the objectives outlined in Section 4.2 will not be achieved, as the use of the digital channel of communication will remain voluntary for each Member State and there is no indication that the current limitations could be offset. Concerning economic impacts, the status quo will be maintained. The cost of communication will remain at an average of EUR 10.55 per transaction. The average time for delivering a first-class letter in the EU is 2 days (48 hours) and this has been taken as an average for the time it takes to send a letter from one Member State to another Member State. However, anecdotal evidence suggests that it actually takes much longer – between 3 and 15 days depending on the destination. We have used an average of 5 days per transaction. The time taken to process paper forms (i.e. registration, archiving, making copies, scanning) was estimated at 1.5 hours per transaction (45 min for sending and 45 min for receiving). Each transaction involves an average of 19.65 paper pages (the average length of the template forms for the cross-border instruments in question), at a cost of EUR 0.24. We have assumed that at least three copies of each document are required during proceedings under each of the instruments: one that is sent, one kept in the file and one exchanged with the competent authority of the other Member State. This will result in maintaining the status quo in terms of annual costs and transaction times in cross-border cooperation at EU level, maintain the current economic impacts for individuals, legal entities, legal professionals and courts/authorities: ·EUR 32 472 900 for communication using physical formats (out of which EUR 5 697 000 for the individuals, legal entities); ·15 390 000 days for communication by post or equivalent services (out of which 2 700 000 days for the individuals and legal entities); ·192 375 days in administrative overheads linked to paper processing which translates to 874 person-years in processing effort in courts; and ·181 448 100 standard A4 80g paper pages printed (out of which 31 833 000 for the individuals and legal entities), at an overall average cost of EUR 2 216 160. As regards fundamental rights, the barriers to access to justice and the challenges to cross-border judicial cooperation, as identified in Section 2, will remain. This refers to the inability of individuals and legal entities to ascertain their rights, specifically their right to seize authority or to be heard in person, where force majeure circumstances occur. Additionally, the length of the proceedings will remain unchanged and thereby affect the right to an effective trial. The social impacts of the use of communication technology can be significant. The digital communication channel may improve public confidence in justice systems by speeding up access to justice and facilitating efficient functioning of the competent authorities. In the baseline scenario, these impacts would depend on the rate of uptake of the technology. It was demonstrated in Section 2 that the rate of uptake is low without a harmonised approach being implemented. For the baseline scenario no tangible change on the impacts could be expected for individuals and legal entities. Under the baseline scenario paper based communication would continue, as would travel for the purposes of hearing. The above mentioned estimate of paper use per procedure would be maintained, together with the traveling. In particular, the main environmental impacts pertain to the use of non-renewable resources, due to paper-based communication and the transport of letters/parcels, on the one hand, and parties attending hearings in person, on the other hand. The environmental impacts of both elements are expected to increase in line with the likely rise in the number of cross-border proceedings. It could be clearly concluded from the consultation activities that the stakeholders and Member States are overwhelmingly in favour of adopting a legislative act establishing a digital communication channel to be used on a mandatory basis by the courts and competent authorities. Providing individuals and legal entities with the possibility to communicate with courts and competent authorities electronically, while maintaining the paper communication and the possibility for remote hearings also enjoy a broad support among the consulted stakeholders. Legitimate concerns in terms of safeguarding fundamental rights, data protection, cybersecurity, protection of vulnerable groups, are considered under the proposed policy options. Option 1 – Non-legislative option The non-legislative option would involve action to persuade Member States to use e‑CODEX for cross-border judicial cooperation and access to justice. A Commission recommendation could encourage them to follow a harmonised approach with regard to the use of electronic communications, including videoconferencing, electronic documents, electronic seals and signatures. Given the voluntary nature of this approach, Member States would be free to develop digital tools on their own. Such action could be technically and operationally feasible, and cost‑effectiveness would depend on the individual Member States’ approach to digitalisation and on their needs and resources. As regards the extent to which the option fulfils the objectives of the proposal, however, a recommendation would not guarantee any actual implementation of digital tools for communication, not to mention the interoperability of the digital channel, the acceptance of electronic documents and common standards of trust services. Therefore, any impacts of this option depend on the number of Member States which will follow the Commission recommendation and will adopt implementing measures for digital communication between the competent authorities and with the individuals and legal entities in the context of cross-border judicial procedures. The current arrangements have shown that the voluntary approach to the digitalisation of the judiciary is not sufficient to ensure the availability of digital tools in all Member States so as to make them interoperable and readily available to all actors. Of the respondents to the questionnaire for national stakeholders, 82% saw voluntary participation as a ”relevant” or ”highly relevant” hurdle to the use of digital solutions in judicial cooperation. The approach resulted in a fragmented map of justice related digital services in the EU and there is no guarantee that a recommendation would improve the situation. The study supporting this impact assessment clearly demonstrates that differences between national IT solutions represent a barrier to cross-border judicial cooperation, which 57% of respondents considered as ”highly” problematic and another 23% as problematic “to a limited extent”. Economic impacts: As regards the functioning of the internal market and the impact on businesses, SMEs included, it has been shown (see the 2021 EU Justice Scoreboard findings in Section 2.1.1) that company’s growth is closely linked to the effective operation and the efficiency of the judiciary. Such benefits cannot be guaranteed with a non‑legislative option. Transaction costs and times in cross-border judicial cooperation, as presented in the baseline option, will start to decrease only when the first two Member States put in place interoperable IT systems fully supporting communication or if all Member States are fully digitising one procedure. The voluntary initiatives of the past decade show a coverage of at most 1% of total transactions being carried out by digital means. This has not been sufficient to produce any tangible cost savings, as most communication has been by traditional means. For the purpose of this assessment we will be using the calculation of the yearly benefits of digitising the European Payment Procedure as presented in the Impact Assessment of e-Codex. This is consistent with the current level of participation in the e-Codex pilots which shows a maximum number of 6 Member States participating in a certain procedure. Therefore, it is safe to assume that any further voluntary cooperation can at best be approximated in terms of benefits with one procedure like the European payment order being fully digitised. Based on tables 12 and 16 it will result that the costs for Member States will slightly decrease to: ·EUR 32 174 616 for communication using physical formats; ·15 387 525 days for communication by post or equivalent services;

The e-Codex cost model do not offer us any indication of the savings in administrative costs or in paper. Impacts on fundamental rights: Digital communication cannot be effective and efficient in “asymmetrical” situations, i.e. it works only between entities that both have interoperable digital resources. If only one interlocutor has the necessary resources, communication has to take place in the traditional way. A particular cross-border instrument needs to be supported by the relevant digital tools for electronic communication to be possible. Otherwise, this would also jeopardise the effectiveness of voluntary cooperation. With regards to the social impacts, the status quo would be maintained in case Member States do not follow the Commission recommendation. On the contrary, where Member States adopt digital technologies in line with the Commission recommendation, a positive social impacts such as increased public confidence in justice systems, improved access to justice and more efficient functioning of the competent authorities and the justice system as a whole, is to be expected. However, with an increased adoption of digital communication technology, the digital gap between those with access to such technology and others may be widened. With EU-wide adoption of electronic means of communication, the use of the digital channel can be expected to have a positive environmental impact, due to the use of less paper and postage. While the production and operation of equipment will consume energy, the overall impact on the environment would be positive. In case videoconferencing or other means of distance communication technology are employed for oral hearings, that would lead to reduction of carbon emissions, because videoconferencing may produce only 7% of the carbon emissions caused by physical meetings. Electronic communication has a smaller carbon footprint than equivalent standard mail (50 to 90% less per transaction). With lower rates of uptake of digital communication technology, there will be environmental impacts, but they would be closer to the status quo. The impact to individuals, legal entities (including businesses), legal professionals, judges and Member States as stakeholders would depend on the uptake of digital communication technology with full adoption having an impact as described in Annex 1. However, considering the current trend of uptake, full adoption is not likely. These in addition to the analysis in Annex 1, would be the main impacts on the stakeholders. Option 2 – Legislative option Under the legislative option, a digital channel for cross-border communication would be established. Previous e-CODEX projects (e.g. eEDES, iSupport) have shown that this is technically and operationally feasible. The additional legal elements associated with this option (e.g. assurance that electronic documents and evidence sent through the channel would not be denied legal effect) ensure that the receiving Member State’s authorities would accept digital communications as procedurally relevant. This would improve access to justice and the enjoyment of fundamental rights. In addition, enabling parties to pay court fees using the same functionalities as would be available for communicating with the competent authorities would be less time‑consuming and more inclusive than the current situation, where they may need to visit a bank or a court in person. As regards economic impact, the obligation to set up a digital channel would require new investment from the Member States to develop the necessary infrastructure to interact with e‑CODEX. The scale of the investment would depend on their current degree of digitalisation, their level of involvement in the e-CODEX project, the interoperability of current solutions and the scope for electronic transmissions under national law. However, in the long run, the digitalisation of justice would significantly reduce the costs incurred by national justice systems in cross-border procedures. Furthermore, it would positively influence the process of digitalisation at national level. Assuming that the IT systems for exchanges of EIOs and the service of documents/taking of evidence, as developed by the Commission, will be extended to cover communication in cross-border judicial procedures, the total one-off cost for extending the eEDES and service of documents/taking of evidence systems would be EUR 18.7 million over 5 years. This cost will be covered by the EU budget through the Digital Europe Program and the Justice Program. The costs for the Member States will be rather limited: EUR 8 100 000 per year i.e. EUR 300 000 per year per Member State. In the first 2 years, the cost of installation will EUR 100 000 per year per MS. This amount include hardware and the manpower to configure it. The remaining EUR 200 000 are necessary for support to the increasing number of users. As of the third year, there are no hardware and installation costs, but only cost for user support and maintenance of the system. This is estimated at EUR 300 000. Since the solution is web-based, there are no additional costs for courts and competent authorities since there is only one instance of the software to be installed at national level. The cost per digital transaction is EUR 2.95. The average overall yearly saving at EU level is EUR 23 372 900 in postage costs and EUR 2 216 160 in paper costs amounting to a grand total of EUR 25 589 060. The individuals and legal entities will be saving EUR 4 098 600 in postage costs and EUR 388 800 in paper costs. The Member States will be gaining EUR19 274 300 per year in postage cost and EU 1 827 960 in postage costs. The overall saving of EUR 21 002 260 are offsetting the EUR 8 100 000 costs for installation, maintenance and user support that the MS will have to cover for running the IT system at national level. The average posting time will be reduced to 0 resulting in an overall yearly reduction of the duration of the procedures by 15 389 999 days. The the individuals and legal entities will be gaining 2 700 000 days in average posting time. 874 person-years will be gained in processing effort at court/competent authority level. 181 448 100 A4 standard 80g printing paper pages will be saved out of which 31 833 000 by individuals and legal entities. The other three measures refer to removing legal barriers. For instance making the oral hearings by videoconference legally possible does not entail any obligation of the courts to provide the technical means for it. Therefore, even though not travelling for a hearing would have positive environmental impact, cost savings for the parties and positive impact on fundamental rights due to the increased accessibility of the procedure and shortening of the delays, video-conference will remain subject to the availability of the equipment, the discretion of the court and the consent of all parties to the procedure. This is why the costs of equipment or travel savings were not taken into account in the cost/benefit analysis. With its potential to cut substantially the cost of participating in cross-border cases, the initiative would also directly benefit individuals and legal entities (including SMEs) covered by the various EU civil law instruments. Individuals’, legal entities’ and legal practitioners’ use of these instruments (e.g. European small claims procedure and EPO) is also likely to increase thanks to the new electronic access point on the e‑Justice portal. While this option will probably have positive economic impacts for certain categories of business, it will probably reduce the revenue of others. More specifically, the introduction of electronic channels of communication might have negative economic impacts on providers of postal service, paper and office supplies, transport services, etc. The revenue of such businesses is expected to decrease marginally due to the use of a digital channel, videoconferencing and other means of distance communication. A comparison of prices charged by transport service providers in three Member States for long‑distance bus, train and air journeys shows that cross-border travel is around 17% more expensive than domestic travel. With the availability of an electronic channel, parties will probably travel to hearings only within their own country or not at all. This will probably result in a loss of revenue for transport service providers. Conversely, increased revenue is expected for providers of IT consulting services, internet and telecommunications services, cloud storage services and archiving services, and manufacturers of videoconferencing and other remote communication equipment. Courts would probably have to spend around EUR 36 000 a year on videoconferencing. Since there are about 6 000 courts in the EU (of which a limited number already have videoconferencing facilities), videoconferencing equipment manufacturers and service providers could gain as much as EUR 216 million across all Member States, if all courts were to be equipped with at least one videoconferencing facility. The social impacts are two-fold: a positive impact of introducing the digital communication channel would improve public confidence in justice systems, access to justice and the efficient functioning of the competent authorities and the justice system as a whole. A negative social impact is the potential widening of the digital divide. Therefore, the initiative would need to ensure equality between individuals who prefer to use the paper channel and those who opt for digital means. The initiative would safeguard the needs and interests of individuals who are not digitally skilled by maintaining the current communication channels.

More efficient judicial cooperation and facilitated access to justice have the potential to increase the number of cross-border cases, which in turn will lead to higher workload for the courts. Such possible risk cannot be supported by the existing data and may only be presumed. Nevertheless, it should be noted that the initiative, and in particular the possibility for the parties to communicate with the competent authorities electronically and the mandatory use of the digital communication channel between the authorities, has the overwhelming support of the Member States. It could be concluded that Member States do not perceive the possible increase of the number of the cases as an obstacle to the digitalisation of cross-border procedures and attribute more value to the protection of fundamental rights, shortening the procedures, alleviating administrative burden (with minimum 874 person/years) and facilitating the processing of the cases. Therefore, the Impact assessment does not evaluate the possible risk of increased number of cross-border cases as a negative impact. Other impacts under option 2, such as environmental and fundamental rights impacts, are suboption-specific. Impacts of suboptions 2.1.a and 2.1.b (voluntary vs mandatory use of digital channel) Concerning the use of electronic means of communication in cross-border cases between the competent authorities, the two suboptions proposed are to make such communication voluntary or mandatory. In case the legislative option would not impose the obligation to communicate electronically, the use of the digital channel would be left to the discretion of the Member States, and the frequency with which it would be used in cross-border cases could not be guaranteed. On the other hand, provisions which would impose the use of the digital channel as mandatory would come at no extra cost (as the channel would be established), but would ensure that the most efficient communication tools available are used in cross-border judicial proceedings. This would alleviate the competent authorities’ administrative burden and shorten judicial proceedings. Since the communication channel will make it possible to identify the competent court or authority for each instrument, the risk of addressing the wrong recipient, and thus the risk of ‘non‑competence’ refusals, would be reduced. Regarding the impact on fundamental rights, shortening proceedings would bring tangible benefits for individuals, legal entities (including SMEs) and legal practitioners, as timely proceedings are an essential element of the right to a fair trial. This was confirmed by the study supporting this impact assessment, with 57% of questionnaire respondents stating that regulating digital communication would have a ‘very positive’ effect on reducing administrative burden and an additional 21% stating that the impact would be ‘rather positive’. Similarly, 45% and 38% of respondents respectively were of the opinion that such an initiative would impact the duration of judicial proceedings ‘very’ or ‘rather’ positively. The use of the digital channel can be expected to have a positive environmental impact, due to the use of less paper and postage. These environmental impacts relate mainly to the adoption of electronic means of communication and a likely increase in the use of videoconferencing and distance communication instead of in‑person hearings. While the production and operation of equipment will consume energy, the overall impact on the environment would be positive. Videoconferencing and other means of distance communication may produce only 7% of the carbon emissions caused by physical meetings. Electronic communication has a smaller carbon footprint than equivalent standard mail (50‑90% less per transaction). Impacts of suboptions 2.2.a and 2.2.b (voluntary vs mandatory acceptance of electronic communication) Obliging Member States to accept electronic communication from individuals and legal entities would have a positive impact on access to justice, by providing additional, faster, more secure and more reliable means of communicating with courts and thus shorter judicial proceedings. Allowing individuals and legal entities to make online applications would not only eliminate potential travel costs and difficulties in accessing infrastructure (courts, post offices, etc.), but would make legal redress more accessible to all, including victims of crime, people in remote and rural areas, and vulnerable individuals. Obliging Member States to accept electronic communication would have a positive impact on SMEs and companies that already operate in a digital environment, by allowing them to use similar digital tools when they communicate with courts/competent authorities as those they already use day to day. If the acceptance of electronic communication remains voluntary, the positive impact and legal certainty will be reduced, as there is no guarantee that Member States will allow such communication. To ensure parties’ autonomy and the rights of those without access to modern infrastructure, individuals and legal entities would be free to opt for paper‑based communication. This would also mitigate the risks of digital divide and exclusion, which raise concerns among the stakeholders. The concerns raised by stakeholders with regards to the right to a fair trial and effective legal remedy, the equal opportunity for both parties to make their case, the right to have knowledge of and to comment on all evidence and observations in adversarial proceedings and the right to a public hearing in criminal proceedings, not interfering with the rights of the defence, including access to a lawyer and the case file, are general concerns rather than ones entirely specific to this initiative. The legislative option would on one hand ensure easier access to justice and judicial cooperation, thereby positively impacting the above concerns, while on the other hand maintaining traditional communication channels. However, it should be considered that the aim of the initiative is not to interfere with courts discretion in safeguarding the procedural rights of the parties. Implementing videoconferencing tools or other distance communication technology would have a similar impact, as it may eliminate the need to travel in some cases and make courts more accessible. This is expected to have positive environmental impacts, in view of the reduced traveling. At the same time, it would be beneficial for the effective protection of fundamental rights. In the context of force majeure events, such as the COVID-19 pandemic, the videoconferencing tools could enable parties to participate in hearings, thus ensuring the right to a fair trial. To avoid negative impacts on the right to a fair trial, safeguards would have to be provided for vulnerable individuals in case videoconference is used. For example, where children are involved in criminal proceedings, they may have difficulties in understanding and following a procedural act. Therefore, the holder of parental responsibility or another adult (as appropriate) should be informed as soon as possible about the use of videoconferencing or other digital communication technology. Specific technical assistance should be ensured during the hearing for older people who are insufficiently familiar with modern communication technology. Also, people with mental disorders or intellectual incapacities may require special assistance in a digital environment. Remote hearings in EAW cases would, for example, enhance trust in the system of the executing state and support the operation of the European supervision order, as videoconferencing would allow the presence (next to the suspect or the accused and their defence lawyer) of the judicial authorities of both the issuing and the executing state. Information on the requested person’s personal circumstances (e.g. family, home, work) could easily be shared with the issuing authority. The same goes for information on possible alternatives to pre-trial detention in the executing state, e.g. allowing the person to continue working or caring for family while awaiting trial in the issuing state. Thus, unnecessary surrender under the EAW would also be avoided. The use of videoconferencing or other remote communication technology would also eliminate the risk of further victimisation of victims of crime. For instance, the use of digital tools could reduce their contacts with the offender and limit unnecessary interaction with competent authorities. However, it must be ensured that each victim’s rights are fully respected in accordance with their individual needs. Impacts of suboptions 2.3.a and 2.3.b ((non-)regulation of trust services) If the acceptance and recognition of electronic signatures and seals are not regulated, the development of trust service standards will remain within the remit of the Member States, who will therefore decide whether signed communication originating from other Member States is to be accepted.

This would result in a negative impact on fundamental rights. Any uncertainty as regards the acceptance of communication and the required type of electronic signatures and seals would detract from the legal certainty and thus individuals’ and legal entities’ willingness to assert their rights via digital means of communication and they may feel obliged to incur travel or other associated costs. On the other hand, regulating the acceptance of electronic communication would result in greater legal certainty and a more secure business environment. No specific environmental impacts were identified for this particular sub-option. In addition, suboption 2.3.b would lead to synergy with the digital identity framework, which would support identification of the parties for the purposes of making submissions or participating in remote hearings. 7.How do the options compare? In this section, we compare the policy options and suboptions on the basis of the following four criteria: ·coherence with the existing legal framework at national and EU levels; and ·effectiveness, in terms of the potential to achieve the general and specific objectives of the initiative; ·efficiency, in terms of the probability of achieving cost reductions in cross-border judicial cooperation and access to justice in cross-border cases; ·EU added value, as compared with what could be achieved by Member States acting alone, and whether the objectives can be met more (cost‑) efficiently at EU level. The results of the analysis are summarised in the table below and explained in further detail in this section. The table should be read as follows: ‘0’ if no new impact compared to the status a quo is expected; ”-” if negative impacts are likely to arise; ”- -” if the option will result in very negative impacts; ”+” pointing to positive impacts; ”++” referring to very positive impacts; and ”+++” to the best performance among the options.



Table 1 - Policy option comparison table Option 0 Option 1 Option 2 (suboptions) 2.1.a

Voluntary use of digital channel 2.1.b

Obligatory use of digital channel 2.2.a

Voluntary acceptance of electronic communication from individuals / legal entities 2.2.b

Obligatory acceptance of electronic communication from individuals / legal entities 2.3.a

Non-regulation of trust services 2.3.b

Regulation of trust services Coherence - + ++ +++ ++ +++ ++ +++ Effectiveness Achievement of objectives 0 + ++ +++ ++ +++ ++ +++ Social / fundamental rights impacts 0 + ++ +++ ++ +++ ++ +++ Economic impacts 0 + + +++ ++ +++ ++ +++ Environmental impacts - + ++ +++ ++ +++ ++ +++ Efficiency 0 + + +++ ++ +++ ++ +++ EU added value 0 + ++ +++ ++ +++ ++ +++ Under both the baseline scenario and the non-legislative option, Member States would use the digital channel for cross-border judicial cooperation in civil, commercial and criminal cases on a voluntary basis only. The non-legislative option could be more effective and efficient, mainly as a result of a Commission recommendation leading the Member States to digitalise their justice-related services more quickly and with a higher degree of technical and legal interoperability. While a recommendation could set out a harmonised approach to the adoption of e-CODEX-based tools (and common standards on trust services and the acceptance and recognition of electronic documents), its non‑binding nature would mean that the Member States may not uniformly follow its principles. This is especially true for Member States that have already implemented national solutions as regards the digitalisation of judicial cooperation, as well as for those in which such solutions are not yet in place. Consequently, fragmentation (and thus inefficiencies) could be expected, as EU‑wide coordination on the choice of instruments to be digitalised and IT tools and standards to be used would be difficult. As concerns coherence, in the light of the above, the baseline scenario and the non‑legislative approach could have negative impacts overall. This because the use of digital tools for cross‑border judicial cooperation and access to justice in cross-border cases would result in some Member States joining voluntary initiatives (e.g. e-CODEX and eEDES) and others not being involved at all. This would probably reinforce or extend the current tendency to rely on the paper channel, which results in financial costs and negative environmental impacts. Also, the use of unsecure electronic communication would probably continue, which might raise privacy and data protection concerns. The legislative option would provide a digital communication channel for cross-border judicial cooperation and access to justice, and arrangements for the acceptance and recognition of electronic documents, and the online payment of fees. As a result, all Member States would have at their disposal the same tool, which would ensure secure, reliable and efficient communication. The tool would be adapted to the needs of the judiciary, as it would be based on e-CODEX, which has been developed specifically for the justice sector. In terms of coherence, the legislative option would have a positive impact, as an initiative on the digitalisation of justice would seek to provide a common framework for the digitalisation of the Union instruments in the civil and criminal area, and ensuring that they are treated under a common regime throughout the Member States would require legislative action so as to guarantee harmonisation. In terms of effectiveness, the legislative option compares favourably to the baseline scenario and the non-legislative option. The data presented in section 2 allows us to make a limited projection of the expected results. However, the data still indicates that due to maintaining the status quo by the baseline option, and the voluntary element attached to the non-legislative option, the legislative option is the only one which ensures the achievement of the initiative’s objectives. However, whether the objectives could be fully achieved depends on the suboptions under the legislative option: ·how much would Member States’ authorities use the digital communication channel? ·would Member States accept electronic communication from procedural parties (including hearings conducted via videoconferencing)?

·would the same standards be applied to trust services? Requiring Member States to use the digital channel in all instances of judicial cooperation covered by the relevant EU legal framework is the only way of guaranteeing its use. A voluntary approach would give rise to an economic impact in terms of resource allocation to develop the channel, but no significant additional assurance as to its use (as compared with the baseline scenario and the non-legislative option). While one Member State’s voluntary use of the digital channel could improve the functioning of the internal market, the enjoyment of fundamental rights and the capacity of the judiciary to process a volume of cases which is assumed to increase proportionally with the number of citizens and businesses finding themselves in a cross-border situation, there will always remain the possibility of another Member State’s authority choosing to reply using paper‑based communication, thus limiting the benefits of digitalisation. The establishment of EU access point which allows the use translated and harmonised forms, will be the easiest way for citizens and businesses to access justice related services. We assume that easier access to such services will result in an increased number of cross-border cases, due to the fact that barriers to initiating a cross-border cases (such as the need to appoint a lawyer at the forum Member State, the ned for translation, the use of postal services) will be removed. Requiring Member States’ authorities to accept electronic communication from individuals and legal entities, regardless of whether it is made through the EU access point or a national platform, will ensure the use of the digital route in this context and the elimination of the above mentioned barriers. In the absence of such a requirement, there would be no legal certainty regarding the use of the digital channel and individuals/legal entities may therefore be reluctant to use this route. As access to justice depends partly on individuals’ and legal entities’ ease of access to judicial authorities, limiting the scope for quick and efficient communication would have a negative social impact and may impair the protection of fundamental rights, particularly in the case of vulnerable groups. The same holds for the use of videoconference tools for oral hearings. By failing to provide a legal basis for this, the baseline scenario would leave the parties without the option of requesting the use of videoconferencing and the courts without a legal basis to set up remote hearings. The parties would therefore have fewer possibilities to participate in procedural action before the courts. This could negatively impact their procedural and fundamental rights and