Council Directive 2002/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes
Date: 2003-01-27
Institutions: Council of the European Union
Subjects: access to the courts, approximation of laws, civil procedure, cross-border cooperation, judicial cooperation in civil matters in the EU

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COUNCIL DIRECTIVE 2002/8/EC

of 27 January 2003

to improve access to justice in cross-border disputes by establishing minimum common rules
relating to legal aid for such disputes

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Commu-
nity, and in particular Articles 61(c) and 67 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Having regard to the opinion of the Economic and Social
Committee (3),

Whereas:

(1)

(2)

(3)

(4)

(5)

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. For the gradual establishment of such an area,
the Community is to adopt, among others, the measures
relating to judicial cooperation in civil matters having
cross-border implications and needed for the proper
functioning of the internal market.

According to Article 65(c) of the Treaty, these measures
are to include measures eliminating obstacles to the
if necessary by
good functioning of civil proceedings,
promoting the compatibility of the rules on civil proce-
dure applicable in the Member States.

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

contracting parties
to the
All Member States are
European Convention for
the Protection of Human
Rights and Fundamental Freedom of 4 November 1950.
The matters referred to in this Directive shall be dealt
with in compliance with that Convention and in parti-
cular the respect of the principle of equality of both
parties in a dispute.

This Directive seeks to promote the application of legal
aid in cross-border disputes for persons who lack suffi-
cient resources where aid is necessary to secure effective
access to justice. The generally recognised right to access
to justice is also reaffirmed by Article 47 of the Charter
of Fundamental Rights of the European Union.

(1) OJ C 103 E, 30.4.2002, p. 368.
(2) Opinion delivered on 25 September 2002 (not yet published in the

Official Journal).

(3) OJ C 221, 17.9.2002, p. 64.

(6)

(7)

(8)

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.

Since the objectives of this Directive cannot be suffi-
ciently achieved by the Member States acting alone and
can therefore be better achieved at Community level, the
Community may adopt measures,
in accordance with
the principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportion-
ality, as set out in that Article, this Directive does not go
beyond what
is necessary in order to achieve those
objectives.

The main purpose of this Directive is to guarantee an
adequate level of legal aid in cross-border disputes by
laying down certain minimum common standards
relating to legal aid in such disputes. A Council directive
is
this
purpose.

suitable legislative instrument

the most

for

(9)

This Directive applies in cross-border disputes, to civil
and commercial matters.

(10) All persons involved in a civil or commercial dispute
within the scope of this Directive 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. Legal aid is regarded as appropriate
when it allows the recipient effective access to justice
under the conditions laid down in this Directive.

(11)

Legal aid should cover pre-litigation advice with a view
to reaching a settlement prior to bringing legal proceed-
ings, legal assistance in bringing a case before a court
and representation in court and assistance with or
exemption from the cost of proceedings.

(12)

It shall be left to the law of the Member State in which
is sought
is sitting or where enforcement
the court
whether the costs of proceedings may include the costs
of the opponent imposed on the recipient of legal aid.

(13) All Union citizens, wherever they are domiciled or habi-
tually resident in the territory of a Member State, must
be eligible for legal aid in cross-border disputes if they
meet the conditions provided for by this Directive. The
same applies to third-country nationals who habitually
and lawfully reside in a Member State.

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(14) Member States should be left free to define the threshold
above which a person would be presumed able to bear
the costs of proceedings, in the conditions defined in this
Directive. Such thresholds are to be defined in the light
of various objective factors such as income, capital or
family situation.

(15)

The objective of this Directive could not, however, be
attained if legal aid applicants did not have the possibi-
lity of proving that
they cannot bear the costs of
proceedings even if their resources exceed the threshold
defined by the Member State where the court is sitting.
When making the assessment of whether legal aid is to
be granted on this basis, the authorities in the Member
State where the court is sitting may take into account
information as to the fact that the applicant satisfies
criteria in respect of financial eligibility in the Member
State of domicile or habitual residence.

(16)

The possibility in the instant case of resorting to other
mechanisms 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 proce-
dure despite his/her unfavourable financial situation.

(17) Member States should be allowed to reject applications
for legal aid in respect of manifestly unfounded actions
or on grounds related to the merits of the case in so far
as pre-litigation advice is offered and access to justice is
guaranteed. When taking a decision on the merits of an
application, Member States may reject legal aid applica-
tions when the applicant is claiming damage to his or
her reputation, but has suffered no material or financial
loss or the application concerns a claim arising directly
out of the applicant's trade or self-employed profession.

(18)

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.

(19) When considering if the physical presence of a person in
court is required, the courts of a Member State should
take into consideration the full advantage of the possibi-
lities offered by Council Regulation (EC) No 1206/2001
of 28 May 2001 on cooperation between the courts of
the Member States in the taking of evidence in civil or
commercial matters (1).

(20)

legal aid is granted,

the entire
If
including expenses incurred in having a
proceeding,
judgment
should continue
receiving this aid if an appeal is brought either against

it must cover

enforced;

recipient

the

(21)

(22)

(23)

(24)

(25)

(26)

(27)

or by the recipient in so far as the conditions relating to
the financial resources and the substance of the dispute
remain fulfilled.

Legal aid is to be granted on the same terms both for
conventional
legal proceedings and for out-of-court
procedures such as mediation, where recourse to them is
required by the law, or ordered by the court.

Legal aid should also be granted for the enforcement of
authentic instruments in another Member State under
the conditions defined in this Directive.

Since legal aid is given by the Member State in which
the court is sitting or where enforcement is sought,
except pre-litigation assistance if the legal aid applicant
is not domiciled or habitually resident in the Member
State where the court is sitting, that Member State must
apply its own legislation, in compliance with the princi-
ples of this Directive.

It is appropriate that legal aid is granted or refused by
the competent authority of the Member State in which
is to be
is sitting or where a judgment
the court
enforced. This is the case both when that court is trying
the case in substance and when it first has to decide
whether it has jurisdiction.

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

The notification and transmission mechanisms provided
for by this Directive are inspired directly by those of the
European Agreement on the transmission of applications
for legal aid, signed in Strasbourg on 27 January 1977,
hereinafter referred to as ‘1977 Agreement’. A time limit,
not provided for by the 1977 Agreement, is set for the
transmission of legal aid applications. A relatively short
time limit contributes
to the smooth operation of
justice.

The information transmitted pursuant to this Directive
should enjoy protection. Since Directive 95/46/EC of the
European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the
processing of personal data and on the free movement
of such data (2), and Directive 97/66/EC of the European
Parliament and of the Council of 15 December 1997
concerning the processing of personal data and the
protection of privacy
telecommunications
sector (3), are applicable, there is no need for specific
provisions on data protection in this Directive.

in the

(1) OJ L 174, 27.6.2001, p. 1.

(2) OJ L 281, 23.11.1995, p. 31.
(3) OJ L 24, 30.1.1998, p. 1.

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(28)

The establishment of a standard form for legal aid appli-
cations and for the transmission of legal aid applications
in the event of cross-border litigation will make the
procedures easier and faster.

(29) Moreover, these application forms, as well as national
application forms,
should be made available on a
European level through the information system of the
European Judicial Network, established in accordance
with Decision 2001/470/EC (1).

(30)

(31)

(32)

(33)

(34)

The measures necessary for the implementation of this
Directive should be adopted in accordance with Council
Decision 1999/468/EC of 28 June 1999 laying down
the procedures for the exercise of implementing powers
conferred on the Commission (2).

It should be specified that the establishment of minimum
standards in cross-border disputes does not prevent
Member States from making provision for more favour-
able arrangements for legal aid applicants and recipients.

The 1977 Agreement and the additional Protocol to the
European Agreement on the transmission of applications
for legal aid, signed in Moscow in 2001, remain applic-
able to relations between Member States and third coun-
tries that are parties to the 1977 Agreement or the
Protocol. But this Directive takes precedence over provi-
sions contained in the 1977 Agreement and the Protocol
in relations between Member States.

The United Kingdom and Ireland have given notice of
their wish to participate in the adoption of this Directive
in accordance with Article 3 of the Protocol on the posi-
tion of the United Kingdom and Ireland annexed to the
Treaty on European Union and to the Treaty establishing
the European Community.

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 taking part in
the adoption of this Directive and is not bound by it or
subject to its application,

HAS ADOPTED THIS DIRECTIVE:

CHAPTER I

SCOPE AND DEFINITIONS

Article 1

Aims and scope

1.
The purpose of this Directive is to improve access to
justice in cross-border disputes by establishing minimum
common rules relating to legal aid in such disputes.

It shall apply,

to civil and
2.
commercial matters whatever
the court or
tribunal. It shall not extend, in particular, to revenue, customs
or administrative matters.

in cross-border disputes,
the nature of

In this Directive,

3.
States with the exception of Denmark.

‘Member State’ shall mean Member

Article 2

Cross-border disputes

For the purposes of this Directive, a cross-border dispute
1.
is one where the party applying for legal aid in the context of
this Directive is domiciled or habitually resident in a Member
State other than the Member State where the court is sitting or
where the decision is to be enforced.

2.
The Member State in which a party is domiciled shall be
determined in accordance with Article 59 of Council Regula-
tion (EC) No 44/2001 of 22 December 2000 on jurisdiction
and the recognition and enforcement of judgments in civil and
commercial matters (3).

3.
The relevant moment to determine if there is a cross-
border dispute is the time when the application is submitted, in
accordance with this Directive.

CHAPTER II

RIGHT TO LEGAL AID

Article 3

Right to legal aid

1.
Natural persons involved in a dispute covered by this
Directive shall be entitled to receive appropriate legal aid in
order to ensure their effective access to justice in accordance
with the conditions laid down in this Directive.

Legal aid is considered to be appropriate when it

2.
guarantees:

(a) pre-litigation advice with a view to reaching a settlement

prior to bringing legal proceedings;

(b) legal assistance and representation in court, and exemption
from, or assistance with, the cost of proceedings of the reci-
pient, including the costs referred to in Article 7 and the
fees to persons mandated by the court to perform acts
during the proceedings.

In Member States in which a losing party is liable for the costs
of the opposing party, if the recipient loses the case, the legal
aid shall cover the costs incurred by the opposing party, if it
would have covered such costs had the recipient been domi-
ciled or habitually resident in the Member State in which the
court is sitting.

(1) OJ L 174, 27.6.2001, p. 25.
(2) OJ L 184, 17.7.1999, p. 23.

(3) OJ L 12, 16.1.2001, p. 1; Regulation as amended by Commission

Regulation (EC) No 1496/2002 (OJ L 225, 22.8.2002, p. 13).

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3. Member States need not provide legal assistance or repre-
sentation in the courts or tribunals in proceedings especially
designed to enable litigants to make their case in person, except
when the courts or any other competent authority otherwise
decide in order to ensure equality of parties or in view of the
complexity of the case.

4. Member States may request that legal aid recipients pay
reasonable contributions towards the costs of proceedings
taking into account the conditions referred to in Article 5.

5. Member States may provide that the competent authority
may decide that recipients of legal aid must refund it in whole
or in part if their financial situation has substantially improved
or if the decision to grant legal aid had been taken on the basis
of inaccurate information given by the recipient.

Article 4

Non-discrimination

Article 6

Conditions relating to the substance of disputes

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

If pre-litigation advice is offered, the benefit of further
2.
legal aid may be refused or cancelled on grounds related to the
merits of the case in so far as access to justice is guaranteed.

3. When taking a decision on the merits of an application
and without prejudice to Article 5, Member States shall
consider the importance of the individual case to the applicant
but may also take into account the nature of the case when the
applicant is claiming damage to his or her reputation but has
suffered no material or financial loss or when the application
concerns a claim arising directly out of the applicant's trade or
self-employed profession.

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

Article 7

CHAPTER III

Costs related to the cross-border nature of the dispute

CONDITIONS AND EXTENT OF LEGAL AID

Article 5

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

Conditions relating to financial resources

(a) interpretation;

1. Member States shall grant legal aid to persons referred to
in Article 3(1) who are partly or totally unable to meet the
costs of proceedings referred to in Article 3(2) as a result of
their economic situation,
in order to ensure their effective
access to justice.

The economic situation of a person shall be assessed by
2.
the competent authority of the Member State in which the
court is sitting, in the light of various objective factors such as
income, capital or family situation, including an assessment of
the resources of persons who are financially dependant on the
applicant.

3. Member States may define thresholds above which legal
aid applicants are deemed partly or totally able to bear the
costs of proceedings set out in Article 3(2). These thresholds
shall be defined on the basis of the criteria defined in paragraph
2 of this Article.

4.
this
Thresholds defined according to paragraph 3 of
Article may not prevent legal aid applicants who are above the
thresholds from being granted legal aid if they prove that they
are unable to pay the cost of the proceedings referred to in
Article 3(2) as a result of differences in the cost of living
between the Member States of domicile or habitual residence
and of the forum.

5.
Legal aid does not need to be granted to applicants in so
far as they enjoy, in the instant case, effective access to other
mechanisms that cover the cost of proceedings referred to in
Article 3(2).

(b) translation of the documents required by the court or by
the competent authority and presented by the recipient
which are necessary for the resolution of the case; and

(c) travel costs to be borne by the applicant where the physical
presence of the persons concerned with the presentation of
the applicant's case is required in court by the law or by
the court of that Member State and the court decides that
the persons concerned cannot be heard to the satisfaction
of the court by any other means.

Article 8

Costs covered by the Member State of the domicile or
habitual residence

The Member State in which the legal aid applicant is domiciled
or habitually resident shall provide legal aid, as referred to in
Article 3(2), necessary to cover:

(a) costs relating to the assistance of a local

lawyer or any
other person entitled by the law to give legal advice,
incurred in that Member State until the application for legal
aid has been received, in accordance with this Directive, in
the Member State where the court is sitting;

(b) the translation of

the necessary
supporting documents when the application is submitted to
the authorities in that Member State.

the application and of

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Article 9

Continuity of legal aid

(b) the competent authority of the Member State in which the
court is sitting or where the decision is to be enforced
(receiving authority).

1.
Legal aid shall continue to be granted totally or partially
to recipients to cover expenses incurred in having a judgment
enforced in the Member State where the court is sitting.

2.
A recipient who in the Member State where the court is
sitting has received legal aid shall receive legal aid provided for
by the law of the Member State where recognition or enforce-
ment is sought.

Legal aid shall continue to be available if an appeal

3.
is
brought either against or by the recipient, subject to Articles 5
and 6.

Legal

2.
supporting documents translated into:

aid applications

shall be

completed in,

and

(a) the official language or one of the languages of the Member
State of the competent receiving authority which corre-
sponds to one of the languages of the Community institu-
tions; or

(b) another language which that Member State has indicated it

can accept in accordance with Article 14(3).

The competent transmitting authorities may decide to

3.
refuse to transmit an application if it is manifestly:

4. Member States may make provision for the re-examina-
tion of the application at any stage in the proceedings on the
grounds set out in Articles 3(3) and (5), 5 and 6, including
proceedings referred to in paragraphs 1 to 3 of this Article.

(a) unfounded; or

(b) outside the scope of this Directive.

Article 10

Extrajudicial procedures

Legal aid shall also be extended to extrajudicial procedures,
under the conditions defined in this Directive,
the law
requires the parties to use them, or if the parties to the dispute
are ordered by the court to have recourse to them.

if

Article 11

Authentic instruments

Legal aid shall be granted for the enforcement of authentic
instruments in another Member State under the conditions
defined in this Directive.

The conditions referred to in Article 15(2) and (3) apply to
such decisions.

The competent

transmitting authority shall assist

4.
the
applicant in ensuring that the application is accompanied by all
the supporting documents known by it to be required to enable
the application to be determined. It shall also assist the appli-
cant in providing any necessary translation of the supporting
documents, in accordance with Article 8(b).

The competent transmitting authority shall transmit the appli-
cation to the competent
receiving authority in the other
Member State within 15 days of the receipt of the application
duly completed in one of the languages referred to in para-
graph 2, and the supporting documents,
translated, where
necessary, into one of those languages.

Documents transmitted under

5.
exempt from legalisation or any equivalent formality.

this Directive shall be

CHAPTER IV

PROCEDURE

Article 12

6.
The Member States may not charge for services rendered
in accordance with paragraph 4. Member States in which the
legal aid applicant is domiciled or habitually resident may lay
down that the applicant must repay the costs of translation
borne by the competent transmitting authority if the applica-
tion for legal aid is rejected by the competent authority.

Authority granting legal aid

Legal aid shall be granted or
refused by the competent
authority of the Member State in which the court is sitting,
without prejudice to Article 8.

Article 14

Competent authorities and language

Article 13

1. Member States shall designate the authority or authorities
competent
to send (transmitting authorities) and receive
(receiving authorities) the application.

Introduction and transmission of legal aid applications

1.

Legal aid applications may be submitted to either:

(a) the competent authority of the Member State in which the
applicant is domiciled or habitually resident (transmitting
authority); or

Each Member State shall provide the Commission with

2.
the following information:

— the names and addresses of the competent receiving or

transmitting authorities referred to in paragraph 1,

— the geographical areas in which they have jurisdiction,

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— the means by which they are available to receive applica-

CHAPTER V

tions, and

— the languages that may be used for the completion of the

application.

3. Member States shall notify the Commission of the official
language or languages of the Community institutions other
than their own which is or are acceptable to the competent
receiving authority for completion of the legal aid applications
to be received, in accordance with this Directive.

4. Member States shall communicate to the Commission the
information referred to in paragraphs 2 and 3 before 30
November 2004. Any subsequent modification of such infor-
mation shall be notified to the Commission no later than two
months before the modification enters into force in that
Member State.

The information referred to in paragraphs 2 and 3 shall

5.
be published in the Official Journal of the European Communities.

Article 15

Processing of applications

FINAL PROVISIONS

Article 17

Committee

1.

The Commission shall be assisted by a Committee.

2. Where reference is made to this paragraph, Articles 3 and
7 of Decision 1999/468/EC shall apply.

3.

The Committee shall adopt its Rules of Procedure.

Article 18

Information

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, established in accordance with Decision
2001/470/EC.

1.
The national authorities empowered to rule on legal aid
applications shall ensure that the applicant is fully informed of
the processing of the application.

Article 19

More favourable provisions

2. Where applications are totally or partially rejected, the
reasons for rejection shall be given.

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

3. Member States shall make provision for review of or
appeals against decisions
rejecting legal aid applications.
Member States may exempt cases where the request for legal
aid is rejected by a court or tribunal against whose decision on
the subject of
the case there is no judicial remedy under
national law or by a court of appeal.

4. When the appeals against a decision refusing or cancel-
ling legal aid by virtue of Article 6 are of an administrative
to judicial
nature,
review.

they shall always be ultimately subject

Article 16

Standard form

Article 20

Relation with other instruments

This Directive shall, as between the Member States, and in rela-
tion to matters to which it applies, take precedence over provi-
sions
agreements
contained in bilateral
concluded by Member States including:

and multilateral

(a) the European Agreement on the transmission of applica-
tions for legal aid, signed in Strasbourg on 27 January
1977, as amended by the additional Protocol
to the
European Agreement on the transmission of applications
for legal aid, signed in Moscow in 2001;

(b) the Hague Convention of 25 October 1980 on Interna-

tional Access to Justice.

To facilitate transmission, a standard form for legal aid
1.
applications and for the transmission of such applications shall
be established in accordance with the procedure set out in
Article 17(2).

The standard form for the transmission of legal aid appli-

2.
cations shall be established at the latest by 30 May 2003.

The standard form for legal aid applications shall be established
at the latest by 30 November 2004.

Article 21

Transposition into national law

1. Member States shall bring into force the laws, regulations
and administrative provisions necessary to comply with this
Directive no later than 30 November 2004 with the exception
of Article 3(2)(a) where the transposition of this Directive into
national law shall take place no later than 30 May 2006. They
shall forthwith inform the Commission thereof.

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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
Member States.

2. Member States shall communicate to the Commission the
text of the main provisions of national law which they adopt in
the field covered by this Directive.

Article 22

Entry into force

This Directive shall enter into force on the date of its publica-
tion in the Official Journal of the European Communities.

Article 23

Addressees

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

Done at Brussels, 27 January 2003.

For the Council

The President

G. PAPANDREOU