Proposal for a Council Directive to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid and other financial aspects of civil proceedings
Date: 2002-01-18
Institutions: European Commission
Subjects: access to the courts, approximation of laws, civil procedure, cross-border cooperation, judicial cooperation, legal aid

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for a Council Directive to improve access to justice in cross-border disputes by
Proposal
establishing minimum common rules relating to legal aid and other financial aspects of civil
proceedings

(2002/C 103 E/29)

COM(2002) 13 final — 2002/0020(CNS)

(Submitted by the Commission on 18 January 2002)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 61(c) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

(7) All persons involved in a civil dispute must be able to
assert their rights in the courts even if their personal
financial situation makes it impossible for them to bear
the costs of the proceedings.

(8) Legal aid must include at least the services of a lawyer and

exemption from the cost of proceedings.

Having regard to the opinion of the Economic and Social
Committee,

(9) Legal aid can be regarded as appropriate when it allows

the recipient effective access to justice.

Having regard to the opinion of the Committee of the Regions,

Whereas:

(1) The European Union has set itself the objective of main-
taining and developing an area of freedom, security and
justice in which the free movement of persons is ensured.

(10) Since legal aid is given by the Member State of the forum,
except pre-litigation assistance provided by a local lawyer
if the legal aid applicant is not habitually resident in the
Member State of
that Member State must
apply its own legislation,
in compliance with the prin-
ciples of the Directive.

the forum,

(2) By Article 65(c) of the Treaty establishing the European
Community, these measures are to include measures elim-
inating obstacles
civil
proceedings, if necessary by promoting the compatibility
of the rules on civil procedure applicable in the Member
States.

to the good functioning of

(11) The complexity of and differences between the legal
systems of the Member States and the costs inherent in
the cross-border dimension of a dispute should not
preclude access to justice. Legal aid should accordingly
cover costs directly connected with the cross-border
dimension of a dispute.

(3) The Tampere European Council on 15 and 16 October
1999 called on the Council
to establish minimum
standards ensuring an adequate level of legal aid in cross-
border cases throughout the Union.

(4) Neither the lack of resources of a litigant, whether acting
as claimant or as defendant, nor the difficulties flowing
from a dispute's
cross-border dimension should be
allowed to hamper effective access to justice.

(5) The main purpose of the Directive is to guarantee an
adequate level of legal aid in cross-border cases, but to
guarantee that adequate level it is necessary to lay down
certain minimum common standards. A Council directive
is the most suitable legislative instrument for this purpose.

(6) The Directive applies to all disputes in civil matters, which
include commercial law, employment law and consumer
protection law.

(12) All Union citizens, wherever they reside, must be eligible
for legal aid if they meet the conditions provided for by
the Directive. The same applies to third-country nationals
who habitually and lawfully reside in a Member State.

(13) If legal aid is granted, it must cover the entire proceeding,
judgment
the recipient should
is brought

including expenses
declared enforceable or enforced;
continue receiving this aid if an appeal
against him.

incurred in having a

(14) Judicial cooperation in civil matters should be organised
between Member States to encourage information for the
public and professional circles and to simplify and
accelerate the transmission of
legal aid applications
between Member States.

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for Legal Aid,

(15) The European Agreement on the Transmission of
Applications
signed in Strasbourg in
1977, which requires the contracting parties to notify
sending and receiving authorities and their systems for
transmitting applications, remains applicable to relations
between Member States and third countries that are
parties to the Agreement. But this Directive replaces the
Agreement in relations between Member States.

(16) The notification and transmission mechanisms provided
for by this Directive are inspired directly by those of
the European Agreement. A time-limit, not provided for
by the 1977 Agreement, should be set for the trans-
mission of
legal aid applications. A relatively short
time-limit would contribute to the smooth operation of
justice.

(17) The establishment of a standard form for the transmission
of legal aid applications in the event of cross-border liti-
gation would make the procedures easier and faster.

living between the Member States,

(18) Given the differences in the costs of litigation and in
standards of
they
should accordingly be left free to define the threshold
above which a person would be presumed able to bear
the costs of proceedings, in such a way as to attain the
objectives of the Directive.

(19) The objective of the Directive could not, however, be
attained if legal aid applicants did not have the possibility
of proving that they cannot bear the cost of proceedings
even if their resources exceed the threshold defined by the
Member State of the forum.

(20) The possibility of resorting to private mechanisms or
agreements to ensure effective access to justice is not a
form of legal aid. But it can warrant a presumption that
the person concerned can bear the costs of the procedure
despite his unfavourable financial situation.

(21) Member States should be allowed to reject applications for
legal aid in respect of manifestly unfounded actions,
without however going so far as to prejudge the case
with a view to evaluating the applicant's prospects of
winning the case.

for non-profit

(22) The Directive does not extend to profit-making legal
persons except
legal persons, such as
consumers' associations, which take action in the courts
to protect
interests. This
principle contributes to the attainment of the objectives
of Directive 98/27/EC of 19 May 1998 on injunctions for
the protection of consumers' interests (1).

legally recognised general

(1) OJ L 166, 11.6.1998, p. 51.

(23) Legal aid must be granted on the same terms both for
conventional
and for out-of-court
procedures such as mediation, where recourse to them
is encouraged by the law.

legal proceedings

(24) The possibility that a party to a dispute may have to pay
court costs or a lawyer's fees even if he wins the case
constitutes an obstacle to access to justice. Their reim-
bursement by the losing party on an equitable basis
mitigates this disadvantage. The protection of weaker
parties,
in particular in the field of employment and
consumer protection law, may justify exceptions to this
principle.

(25) It should be specified that the establishment of minimum
standards does not prevent Member States from making
provision for more favourable arrangements for legal aid
applicants.

(26) As the objectives of this Directive cannot be achieved
adequately by the Member States acting alone and could
better be achieved by action at Community level,
the
Community may take measures in accordance with the
principle of subsidiarity as declared by Article 5 of the
In
Treaty
accordance with the principle of proportionality laid
down in the same article, this Directive goes no further
than is necessary to achieve these goals.

European Community.

establishing

the

(27) This Directive

rights

respects

fundamental

and
the
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union
as general principles of Community law. In particular, it
seeks to promote the application of the principle of legal
aid for all persons who lack sufficient resources where
access to such aid is necessary to secure access to
justice in accordance with the third paragraph of Article
47 of the Charter of Fundamental Rights of the European
Union.

(28) (The United Kingdom and Ireland are not participating in
the adoption of this Directive in accordance with Articles
1 and 2 of the Protocol on the position of the United
Kingdom and Ireland annexed to the Treaty on European
European
Union and
the Treaty
Community.)
(The United Kingdom and Ireland have
given notice of their wish to participate in the adoption
of
the
this Directive in accordance with Article 3 of
Protocol on the position of
the United Kingdom and
Ireland annexed to the Treaty on European Union and
the Treaty establishing the European Community.)

establishing

the

(29) In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark annexed to the Treaty on
European Union and to the Treaty establishing the
European Community, Denmark is not participating in
the
is
accordingly not binding on Denmark nor applicable there,

this Directive. This Directive

adoption of

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HAS ADOPTED THIS DIRECTIVE:

Article 5

Article 1

Aims and scope

The purpose of this Directive is to improve access to justice in
cross-border disputes by establishing minimum common rules
financial aspects of civil
relating to legal aid and other
proceedings.

It shall apply to civil disputes of all types, irrespective of the
type of court.

Article 2

For the purposes of this Directive:

‘Legal aid’ means all resources made available to persons to
ensure their effective access to justice where their financial
resources are inadequate to cover the costs of litigation, and
includes at least the services of a lawyer and the costs of
proceedings;

Costs related to the cross-border nature of the dispute

Legal aid granted in the Member State in which the court is
sitting shall cover the costs directly related to the cross-border
nature of the dispute.

Such costs shall
travel costs where the physical presence of
concerned in court is mandatory.

include interpretation and translation and
the persons

The Member State in which the legal aid applicant resides shall
grant legal aid to cover costs incurred by the recipient in that
state and, in particular, the cost of consulting a local lawyer.

Article 6

Non-discrimination

Member States shall grant legal aid without discrimination to
Union citizens and third-country nationals residing lawfully in
a Member State.

‘Litigation in civil matters’ means all
civil
consumer protection law;

including commercial

law,

litigation in matters of
law and

law, employment

Article 7

Continuity of legal aid

‘Costs of proceedings’ means the costs of
themselves and lawyers' fees.

the proceedings

Legal aid shall continue to be granted to recipients to cover
expenses incurred in having a judgment declared enforceable or
enforced in the Member State of the forum, without prejudice
to Article 3(3).

Article 3

Right to legal aid

All persons involved in a civil dispute, as either claimant or
defendant, shall be entitled to receive appropriate legal aid if
they do not have sufficient resources within the meaning of
Article 13 to enforce their rights by court action, without
prejudice to Article 14.

Legal aid shall include the services of a lawyer and/or other
person entitled by the law to represent parties in the courts,
providing pre-litigation advice and representation in court, and
exemption from, or assistance with, the cost of proceedings.

Article 50 of Council Regulation No 44/2001 on jurisdiction
and the recognition and enforcement of judgements in civil
and commercial matters shall apply in exequatur matters.

Legal aid shall continue to be provided if an appeal is brought
against the recipient. Provision shall be made for re-exam-
ination of the application where the appeal is brought by the
recipient.

Article 8

Processing of applications

Member States may provide that recipients of legal aid must
refund it in whole or in part at the end of the procedure if
their financial situation has substantially improved meanwhile.

The national authorities empowered to rule on legal aid
applications shall ensure that the processing of applications is
as transparent as possible.

Article 4

Responsibility for legal aid

Where applications are rejected, the reasons for rejection shall
be given.

Legal aid shall be granted by the Member State in which the
court
is sitting in accordance with its law and with this
Directive.

Member States
decisions rejecting legal aid applications.

shall make provision for appeals against

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Article 9

Article 12

Introduction and transmission of legal aid applications

Emergency procedure

Legal aid applicants who habitually reside in a Member State
other than the one in which the dispute is heard may submit
their application to the authorities of the Member State in
which they habitually reside.

Member States shall ensure that legal aid applications made by
applicants not residing in the Member State of the forum are
examined within a reasonable time before the case comes to
trial.

The relevant authorities of the Member State of residence shall
transmit
the application to the relevant authorities in the
Member State of the forum within eight days.

Documents transmitted under this Directive shall be exempt
from legalisation or other comparable formalities.

The Member States may not charge for services rendered in
accordance with paragraph 2.

transmitting authorities may refuse

to transmit an
The
application if it is manifestly inadmissible, and in particular if
the dispute is not in a civil matter.

Legal aid applications transmitted in accordance with the
procedure provided for by this Directive shall be written in
the
in another
language which it accepts.

receiving authority or

language of

the

This Directive replaces the Strasbourg Agreement of 1977 on
the Transmission of Legal Aid Applications
in relations
between Member States.

Article 10

Notifications to the Commission

Member States shall provide the Commission with a list of
authorities empowered to send and receive applications. This
list shall be published in the Official Journal of the European
Communities.

The Member States shall notify the Commission of the list of
official languages of the European Union other than their own
language or languages in which they accept
legal aid
applications may be transmitted to the relevant authorities.

that

Article 11

Standard form

To facilitate transmission, a standard form for
legal aid
applications shall be established by the Commission, assisted
by the
committee provided for by Council Regulation
No 1348/2000 on the service in the Member States of
judicial and extra-judicial documents in civil and commercial
matters (1).

(1) OJ L 160, 30.6.2000, p. 37.

Article 13

Conditions relating to financial resources

Member States shall grant legal aid to natural persons involved
in a dispute within their jurisdiction who are unable to meet
the costs of proceedings as a result of their personal financial
situation.

Member States may define income thresholds above which
the costs
legal aid applicants are presumed able to bear
associated with disputes. These thresholds shall be defined in
the light of various objective factors such as the cost of living
and the costs of proceedings.

Legal aid applicants who do not meet the conditions set out
above shall be granted legal aid if they can prove that they are
unable to pay the cost of the proceedings, in particular as a
result of differences in the cost of living between the Member
States of residence and of the forum.

Legal aid applicants shall be presumed able to bear the costs of
proceedings if in the instant case they enjoy actual access to a
private mechanism involving a no-win no-fee agreement with
the lawyer and providing that court costs will be paid by a
third party.

Article 14

Conditions relating to the substance of disputes

legal aid applications for
Member States may provide that
actions which appear to be manifestly unfounded may be
rejected by the relevant authorities.

Article 15

Application to legal persons

Legal aid shall be granted to not-for-profit legal persons based
in a Member State where proceedings are designed to protect
interests and they do not have
legally-recognised general
sufficient
the proceedings,
resources
without prejudice to Article 14.

the cost of

to bear

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Article 16

Article 19

Extra-judicial procedures

More favourable provisions

Legal aid shall be granted in cases where disputes are settled via
extra-judicial procedures, if the law makes provision for such
procedures or if the parties to the dispute are ordered by the
court to have recourse to them.

This Directive shall not prevent
the Member States from
making provision for more favourable arrangements for legal
aid applicants.

Article 17

Article 20

Reimbursement of court costs and lawyers' fees

Member States shall provide that the winning party shall be
entitled to fair reimbursement from the losing party of all or
part of the costs of the proceedings.

Member States may provide for exceptions to this principle to
ensure appropriate protection of weaker parties.

Member States may provide that where the losing party
received legal aid, reimbursement is not due or is dealt with
by the State.

Article 18

Information

This Directive shall enter into force on the [twentieth] day
following its publication in the Official Journal of the European
Communities.

Article 21

The Member States shall put into force the laws, regulations
and administrative provisions needed to comply with this
Directive no later than 1 January 2004. They shall forthwith
inform the Commission thereof.

When Member States adopt these measures, they shall contain
a reference to this Directive or shall be accompanied by such a
reference on the occasion of their official publication. The
methods of making such a reference shall be laid down by
the Member States.

The competent national authorities shall cooperate to provide
the general public and professional circles with information on
the various systems of legal aid, in particular via the European
Judicial Network in Civil and Commercial Matters established
by Council Decision No 2001/470/EC.

Article 22

This Directive is addressed to the Member States in accordance
with the Treaty establishing the European Community.