Opinion of the Economic and Social Committee on the "Proposal for a Council Decision establishing a European Judicial Network in civil and commercial matters"
Date: 2001-02-28
Institutions: European Economic and Social Committee
Subjects: civil law, commercial law, cross-border cooperation, information network, judicial cooperation in criminal matters in the EU

C 139/6

EN

Official Journal of the European Communities

11.5.2001

Opinion of the Economic and Social Committee on the ‘Proposal for a Council Decision
establishing a European Judicial Network in civil and commercial matters’

(2001/C 139/03)

On 6 November 2000 the Council decided to consult the Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 7 February 2001. The rapporteur was
Mr Retureau.

At its 379th plenary session on 28 February and 1 March 2001 (meeting of 28 February), the Economic
and Social Committee adopted the following opinion by 112 votes to one.

1.

The main objectives and means envisaged in estab-
lishing a European Judicial Network in civil and
commercial matters

added at Community level. The aim is to enable individuals and
companies to exercise their rights despite the organisational
differences between — or even the incompatibility of — the
legal and administrative systems in force in the Member States.

1.1.
This proposal ties in with the ongoing development of
judicial cooperation on civil and commercial matters and the
process of bringing that cooperation into the Community
sphere. It is intended to mark a new step towards establishing
a European judicial area, bringing tangible benefits for the
citizens of the European Union.

1.2.
One implication of a single market with freedom of
movement is that, in the area of civil and commercial matters,
people should be able to exercise rights and have them upheld,
use evidence, bring actions, settle disputes, obtain court
decisions and have decisions taken in any given Member State
recognised by another Member State. This is necessary in order
to promote legal certainty in financial transactions, contracts,
and the movement of people, goods and capital.

1.3.
Improved knowledge of the legal systems and pro-
cedures that apply in each country is therefore one of a
number of ways of facilitating the resolution of cross-border
disputes of a civil or commercial nature (1).

The Commission’s idea is to establish a network that
1.4.
will grow and be fleshed out gradually as needs are identified
and resources become available. Some resources already exist
at national and Community level and in the framework
of bilateral agreements. The information and coordination
network proposed by the Commission would improve the
coordination and synergy of the network’s own resources and
other resources already in existence, thus generating value

1.5.
The instrument proposed in order to meet the dual
objective of improving judicial cooperation between States
and simplifying access to justice and law for individuals and
companies involved in cross-border disputes is a European
Judicial Network in civil and commercial matters. This network
would be an instrument of judicial cooperation and also an
information tool available to governments and the public, with
the Internet playing a key role.

This kind of cooperation is provided for in Article 65
1.6.
of the EC Treaty, and it was also encouraged by the Tampere
European Council. According to the Commission, the legal
basis is found in Article 61(c). The choice of the decision
format is justified by the need for consistent application by all
the Member States, without prejudice to the protocols to the
TEU and the TEC concerning Ireland and the United Kingdom
on the one hand and Denmark on the other, which could
significantly reduce the proposed decision’s impact. These
countries are, however, party to the Hague Convention, and
the proposed decision does not replace existing international
agreements in the area of judicial cooperation in civil and
commercial matters.

(1) ESC Opinion on Judicial and extrajudicial documents in civil or
commercial matters (OJ C 368, 20.12.1999, p. 47); ESC Opinion
on Recognition of judgements in civil and commercial matters
(OJ C 117, 26.4.2000, p. 6); ESC Opinion on Rights of access to
children (OJ C 14, 16.1.2001); ESC Opinion on The taking of
evidence in civil and commercial matters.

The achievement of

1.7.
the twin goals of enhancing
judicial cooperation mechanisms throughout the Union in a
coordinated and uniform way while also providing the public
with practical information on cross-border disputes, in order
to assist individuals and companies in their affairs, must in no
way undermine Member States’ own powers or interfere with
the implementation of existing international agreements and
current ad hoc mechanisms.

11.5.2001

EN

Official Journal of the European Communities

C 139/7

1.8.
This would appear to be easier on paper than in
practice, as the stated objective of coordination, uniformity and
Community cooperation will inevitably affect the mechanisms
covering the various specific areas of international judicial
cooperation in civil and commercial matters. The idea is to
follow a rationale of integration which will be implemented
gradually and which, with due respect for existing mechanisms,
will aim to develop an integrated approach to the whole field
of judicial cooperation in civil and commercial matters, while
also allowing the development of cooperation in areas not
covered by Community or international instruments. The key
element is clear from point 5(e) of the communication: ‘the
Network can be expected to develop into an important
instrument, an essential instrument even, for the establishment
of a European justice area in civil and commercial matters. The
challenge issued by the Treaties demands instruments to
permit the development of an overall integrated approach ...’.

The network will be based on ‘contact points’ in the
1.9.
Member States. The number and nature of them will depend
on the administrative and legal structures in each country. The
network will grow principally by applying modern information
and communication technologies to create an internal elec-
tronic network, and there will be dedicated web pages on the
Commission’s website. Existing resources will also be exploited
and the central site will build them into its information system,
mainly using links.

1.10.
The Commission states that the aim is not to take the
place of the legal professions, but simply to encourage people
to use existing remedies and to overcome the reluctance
that results from ignorance of
the procedures and their
requirements, and the fear of exercising rights in a cross-
border context.

1.11.
The establishment of a network of this kind demands
extremely close cooperation between the Commission and the
Member States and appropriate human and material resources.

Lastly,

1.12.
the network is intended to be a flexible
instrument open to evolution. It will develop along with
judicial cooperation and could act as a yardstick for it.

1.12.1.

The network will consist of:

— national contact points designated by the Member States;

— the

liaison magistrates

to whom Joint Action

96/277/JAI (1) applies;

— any other judicial or administrative authority whose
membership of the network is considered to be useful by
a Member State.

1.13.
Central national contact points (one per country,
designated by the national authorities) will serve as the
interface between the national and European levels of the
network, coordinated by the Commission. A non-exhaustive
list of
tasks and initiatives is proposed, highlighting the
pragmatic and practical nature of the activities. Countries may,
depending on their territorial or judicial structure, choose to
set up a limited number of additional contact points. Member
States will supply the Commission with all relevant infor-
mation on the national elements of the network, including
their knowledge of languages.

1.13.1.
It is proposed that in addition to the national
language(s), the contact points should have knowledge of one
other official Community language. The practical information
sheets prepared by each country for the general public will be
translated by the Commission into all the Community’s official
languages.

The contact points will be available to the relevant
1.13.2.
central legal authorities or liaison magistrates. They will direct
external requests to the relevant national authorities, or provide
assistance in the absence of a legal or agreed mechanism in
cases not covered by Community texts or international
agreements.

Each country will appoint an equal number of
1.14.
representatives (four) for periodic network meetings, to be
called by the Commission at least three times a year. These
meetings will deal with issues relating to the running and
development of the network, the practical information sheets
to be drawn up and measures to be taken. The Commission
will also call a broader annual meeting for contact point
managers and representatives of administrative and judicial
institutions, for the purposes of sharing experiences and ideas
and identifying best practice.

1.15.
Contacts within the network will be without prejudice
to any regular or occasional planned or potential contacts
between relevant authorities in the various countries in the
context of multilateral or bilateral agreements, in particular
cooperation arising from the various Hague or Council of
Europe conventions. On the contrary, a synergy should
develop between the network contact points and these auth-
orities, and the network will be available to offer them any
necessary assistance.

— central authorities, judicial or other relevant authorities
with responsibilities for judicial cooperation in civil and
commercial matters by virtue of relevant international
agreements to which each Member State may be party;

(1) OJ L 105, 27.4.1996.

C 139/8

EN

Official Journal of the European Communities

11.5.2001

2. General comments

2.1.
By helping to provide individuals, professionals, insti-
tutions and governments with information on the law and
procedures applicable in the Member States, the proposed
network could be a useful and effective tool for resolving
cross-border disputes, providing it is established in a spirit of
complementarity and designed to cover the areas that escape
the mechanisms set up by the various international conven-
tions in the civil and commercial field. In the Committee’s
view, the network will prove an essential
instrument for
effective cooperation and legal consistency within the single
market. It will provide support for people working in the
judicial systems and the legal professions, and provide individ-
uals and businesses with assistance in the event of cross-border
disputes in the civil and commercial field. The Committee
therefore welcomes the basic thrust of the proposal.

The flexibility envisaged in the implementation and
2.2.
future adaptation of the network, and the possibility open to
it of setting itself new objectives as time goes on and creating
new resources for itself, appear to be realistic as they will allow
the network to adjust
to experience. Practical difficulties
could arise because of the network’s two objectives (judicial
cooperation and information), but this approach could be
productive if progress in the two areas enables each to benefit
from the experience of the other.

The Committee thinks that, while securing the overall
2.3.
consistency of judicial cooperation on civil and commercial
matters, the network should fill the gaps in sectors not covered
by Community or agreed provisions.
It will also supply
information to the public, the legal professions and associ-
ations and groups representing the social partners or con-
sumers, and will promote the pooling of experience and
mutual assistance among professionals in the legal sector.

taken as a whole,

The Committee feels that,

2.4.
the
proposals and services planned appear complicated and it
stresses the need for the services to be easily accessible and
comprehensible, in both nature and form, to individuals and
SMEs, their prime audience. Furthermore, access for these
categories ought to be easy and free of charge. Meanwhile,
more technical and more in-depth resources should possibly
be made available to professional legal advisors and lawyers
and to associations, such as European humanitarian, social or
professional bodies, cooperatives or trade unions, that might
wish to defend their members or the interests they represent,
in the event of specific issues that go beyond the national
dimension (the safety of certain products produced in another

Member State, disputes over commercial contracts, or individ-
ual or collective cross-border labour disputes, compensation
for damage to property or personal injury suffered abroad,
etc.).

2.4.1.
The Committee thinks that the information sheets
on the Commission website should include links to relevant
Community or national databases, so as to enable individuals,
associations and professionals to obtain further information if
they so desire.

2.5.
The Committee believes that all the members of the
Union, current and future, should plan to take part in the
project. The Committee therefore strongly hopes that those
countries that have a choice under protocol of opting in will
do so, as all the legal systems will have to contribute for the
network to be genuinely useful and effective.

In the Committee’s view, the draft decision poses a

2.6.
number of problems:

— it does not address the issue of the cost of accessing

databases;

— the Committee views the judicial network and the public
information service as a fullscale Community public legal
service which should be defined as such in the legislation,
with all the consequences implicit in that concept (accessi-
bility, basic information free of charge);

— the draft decision does not take a very clear stance on the
advisory and defence work of the legal professions.
Although the development of the network and the heavy
emphasis on promoting alternative means of resolving
disputes may lighten the workload of civil and commer-
cial courts, the risk is that it could also result in the
weakest parties (individuals, private sector or social
economy SMEs) who have no real legal aid and who
are up against groups that do have resources (legal
departments, advisors, experience) having to accept
compromises that provide them with only a minimum
level of defence or reparation;

— the draft decision makes no room in explicit terms for
business or trade union associations and organisations or
other areas of organised civil society, such as humani-
tarian or consumer organisations, to be involved and take
part in the network and its running (e.g. as regards the
nature and form of the information to be made available
to the public), although these bodies play an important
informative, advisory and sometimes active role in the
legal field, representing or defending their members. The
local offices of these organisations, alongside the Euro
Info Centres for businesses and the Euroguichets for
consumers, could also act as public information points,
and full use should be made of them.

11.5.2001

EN

Official Journal of the European Communities

C 139/9

2.6.1.
The Committee is convinced that civil society organ-
isations have an important practical role to play in the judicial
information process and in certain judicial or extra-judicial
procedures, and believes that the project is lacking in this area.

The Committee notes that

3.3.
the Commission cites
Article 61(c) of the TEC as the legal basis. Article 61, however,
refers to Article 65, which does not provide specifically for the
establishment of a judicial network. In any event, until 1 May
2004, decisions in this area will require the unanimity of the
Council.

2.7.
The Committee notes that the content of the public
information system and of the practical information sheets
will demand a major effort on the part of the national
authorities and the Commission departments. It hopes that it
will be possible to achieve this ambitious goal, gradually but
within a reasonable timeframe, naturally using all the existing
possibilities of information networks already active at Com-
munity level, without ignoring the fact that considerable
additional resources will be required.

3.4.
The Committee stresses the need to standardise the
procedures, technical resources and software of the infor-
mation network, as otherwise the project could turn into a
technological tower of Babel which would impede communi-
cation. Care must thus be taken to ensure that the technologies
and programmes implemented are compatible.

2.7.1.
Aside from the public information network, the
Committee considers that for information to be circulated as
effectively and widely as possible, courses must be provided in
schools and elsewhere on the use of technological tools such
as the Internet. This is vital if people are to fully exercise their
citizens’ rights and defend their interests.

3.

Specific comments

Attention should be drawn to the problems of finan-
3.1.
cing the network — not only in terms of construction costs
but also ongoing operating and maintenance costs — and the
sheer volume of material resources it will require. Little
mention is made of these issues in the proposal, but such
resources will in all likelihood be hard to come by in view of
the state of the judicial systems, which are more often than
not under-staffed and lack sufficient financial and material
resources on a day to day basis.

The Committee is concerned by the language issue.
3.2.
The contact points will surely require greater foreign language
capabilities than those envisaged (one non-national Com-
munity language), and,
the major differences
in view of
between legal systems and concepts and judicial practice and
structures, it is difficult to picture the project working without
a single common language.

The prime role given to the Internet in public infor-
3.5.
mation should be tempered to take account of the fact that
some countries still have relatively low Internet connection
rates. The proposal must allow for the fact that individuals and
businesses will have to go through intermediary advisory
associations or lawyers to obtain information specific to their
needs; all the more so since raw legal information in itself is
not enough to enable an individual to embark upon and
succeed in legal proceedings in another country. Qualified
voluntary or paid advisors will be needed to provide advice on
strategy and tactics, developments in the case must be
monitored, and representation will be needed both in the
country of origin and the country where the proceedings are
taking place. The public must be given accurate information
on this subject, so that people know which associations or
professionals to turn to for advice and assistance.

3.6.
The Committee would also stress the need to ensure
that communications between the contact points and the
judicial and administrative authorities are secure, where they
involve natural or legal persons. The best possible protection
must be secured for personal data and business confidentiality,
without prejudice to the secrecy that must govern investi-
gations and judicial dealings between Member States.

3.7.
As regards the practical definition of the civil and
commercial spheres, the Committee calls for the decision to
make specific reference to the Court of Justice definitions.
Since civil actions heard in the context of criminal and tax
cases do not fall outside the scope of the proposal, and it is
also possible that documents which cannot easily be defined
in legal terms by the appropriate legal body may be requested,
an indent along the following lines should be inserted in order
to protect the rights of the parties involved:
‘the receiving
agency shall define as flexibly as possible those documents
whose legal character cannot be clearly assigned to either the
civil or the commercial field, but which nevertheless have
points in common with them’.

C 139/10

EN

Official Journal of the European Communities

11.5.2001

3.8.
On the question of the territorial scope of the proposal,
the Committee would refer to its previously expressed views
on the nature and competence of the national authorities
responsible in each Member State for judicial cooperation with
the other Member States (in most cases, the national or federal
ministry of justice). The national contact point(s) should be

expressly designated and legitimated by these authorities.
Member States with responsibilities regarding the territories
with special characteristics mentioned in Article 299 of the EC
Treaty should establish appropriate legal and administrative
arrangements.

Brussels, 28 February 2001.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Initiative of the Federal Republic of
Germany with a view to adopting a Council Regulation on cooperation between the courts of
the Member States in the taking of evidence in civil and commercial matters’

(2001/C 139/04)

On 11 October 2000 the Council decided to consult the Economic and Social Committee, under Article
262 of the Treaty establishing the European Community, on the above-mentioned initiative.

The Section for the Single Market, Production and Consumption, which was responsible for preparing
the Committee’s work on the subject, adopted its opinion on 7 February 2001. The rapporteur was
Mr Herna´ndez Bataller.

At its 379th plenary session of 28 February and 1 March 2001 (meeting of 28 February 2001), the
Economic and Social Committee adopted the following opinion by 117 votes to one, with one abstention.

1.

Introduction

— under what conditions documents granted by a foreign

authority may be used.

The purpose of international legal assistance is to offset
1.1.
the difficulties which arise in proceedings as a result of the
inability to exercise powers of jurisdiction outside national
territory in order to execute specific procedural documents.

1.2.
In order to complete proceedings involving external
legal transactions, a number of procedural steps, such as
service of notifications, notice of proceedings or taking of
evidence, must be executed in another State.

The system of evidence and its admissibility is usually
the lex fori
to procedural

factors. Consequently,

1.3.
subject
determines:

— the general arrangements

for evidence: whether a
numerus apertus or clausus applies, and in the latter case,
which evidence is admissible,

1.4.
The origin of the problems posed by international
evidence largely lies in the differences between national legal
systems regarding evidence. The most significant differences
arise in relation to three aspects:

a)

b)

the greater or lesser role of judges in evidential proceed-
ings: while in some systems these are largely conducted
by judges, in others they are carried out by the parties
themselves;

the ‘pre-procedural’ or procedural character of giving
evidence: while in some systems, the period in which
evidence may be submitted is basically concurrent with
the proceedings which are already under way, and hence
when the claims have been clearly defined, in others it
runs mostly prior to the opening of proceedings and
before the claims have been exactly defined;