Opinion of the Economic and Social Committee on the "Proposal for a Council Directive to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid and other financial aspects of civil proceedings" (COM(2002) 13 final — 2002/0020 (CNS))
Date: 2002-05-29
Institutions: European Economic and Social Committee
Subjects: access to the courts, civil procedure, cross-border cooperation, judicial cooperation, legal aid

C 221/64

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5.4.
Finally, the EESC points out the need to involve the
applicant countries as soon as possible in developing the open
method of coordination on pensions, emphasising that the
considerable diversity in the systems of the future member
countries, as well as the diversity in macroeconomic and

income conditions, will pose new problems, but will also offer
significant opportunities for those countries to cooperate and
integrate with the European model of economic and social
development.

Brussels, 29 May 2002.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Proposal for a Council Directive to
improve access to justice in cross-border disputes by establishing minimum common rules
relating to legal aid and other financial aspects of civil proceedings’

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

(2002/C 221/15)

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

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

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

1. Objectives of the proposal

in the field of judicial cooperation in civil matters to eliminate
to the good functioning of civil proceedings
obstacles
[Article 65(c)].

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

1.2.
As the legal basis for its initiative, the Commission
cites Article 61(c) of the Treaty, which commits to the objective
of progressively establishing an area of freedom, security and
justice and provides for adoption by the Council of measures

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

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

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2. General comments

The Committee warmly welcomes the Commission

2.1.
proposal.

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

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

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

2.5.
A person threatened with proceedings or wishing to
bring proceedings abroad may need legal aid at three stages.
Firstly, pre-litigation advice; secondly, the services of a lawyer
in court and exemption from court costs; and thirdly, assist-
ance at the stage of having a foreign judgment declared
enforceable or being enforced (1).

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

3. Specific comments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. Conclusion

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

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

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

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

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

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

Nevertheless, the Committee would draw attention to

4.2.
the following points which need further consideration:

The Committee would reiterate here two recommen-
3.12.
dations which it made in its opinion on the Proposal for a
Council Decision on the creation of a European Judicial
Network in Civil and Commercial Matters (1).

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

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

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

( 1) OJ C 139, 11.5.2001.

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

4.2.3.
Citizens’ interests must be protected by means of
legal support from a suitably trained and specialised pro-
fessional, i.e. a lawyer.

4.2.4.
should not be excluded from the possibility of legal aid.

Enterprises whose economic situation warrants it

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

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4.2.6.
Provision should be made for adequate technical and
financial resources to publicise the system among the general

public and to train professionals who will be involved in
making it operative.

Brussels, 29 May 2002.

The President

of the Economic and Social Committee

Göke FRERICHS

Opinion of the Economic and Social Committee on the ‘Coordination of economic policies in the
long term’

(2002/C 221/16)

In a letter sent by the Commission President, Mr Prodi, on 10 January 2002, the Commission asked the
Economic and Social Committee, under Article 262 of the Treaty establishing the European Community,
to draw up an opinion on: ‘Coordination of economic policies in the long term’.

The Section for Economic and Monetary Union and Economic and Social Cohesion, which was
responsible for preparing the Committee’s work on the subject, adopted its opinion on 7 May 2002. The
rapporteur was Mrs Konitzer.

At its 391st plenary session of 29 and 30 May 2002 (meeting of 29 May) the Economic and Social
Committee adopted the following opinion with 79 votes in favour and two abstentions.

1. Background

1.1.
Following his speech of 28 November 2001 to the
plenary session of the European Economic and Social Com-
mittee (EESC), the president of the European Commission,
Romano Prodi, in a letter dated 10 January 2002, asked the
EESC to draw up a number of exploratory opinions and studies
on issues including the coordination of economic policies in
the long term and the relationship between the broad econ-
omic policy guidelines of the economic policies of the Member
States and of the Community and the economic and stability
programmes of the Member States. This exploratory opinion
is an initial contribution by the EESC on the subject.

1.2.
Traditionally the EESC expresses its views on issues
related to the coordination of economic policy in its own-

initiative opinions (1) on the broad economic policy guidelines
for the Member States and the Community (2).

In recent years the EESC has also adopted other own-initiative
opinions on topical
issues relating to the coordination of
economic policy and its procedures, which also looked at more
fundamental questions such as exploiting the Community’s
employment and growth potential, overcoming obstacles to
growth and the possible contributions of the economic-policy
actors to an optimum macroeconomic policy mix for the
Community (3).

(1) Before the Maastricht Treaty consultation of the EESC (and the
Parliament) on the annual report on the economic situation in
the Community was mandatory on the basis of the Council’s
convergence decision of 18 February 1974 (74/120/EEC,
Article 4). These opinions were the EESC’s contribution to the
economic policy guidelines.

(2) OJ C 221, 7.8.2001, p. 177 — OJ C 139, 11.5.2001, p. 72

— OJ C 48, 21.2.2002.

(3) OJ C 139, 11.5.2001, p. 60 — OJ C 139, 11.5.2001, p. 51

— CES 1487/2001 — OJ C 48, 21.2.2002.