REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE on the application of Directive 2003/8/EC to improve access to justice in cross border disputes by establishing minimum common rules relating to legal aid for such disputes
Date: 2012-02-23
Institutions: European Commission
Subjects: European judicial area, dissemination of EU information, judicial cooperation in civil matters in the EU, legal aid, legal expenses, right of action

EUROPEAN COMMISSION 

Brussels, 23.2.2012  
COM(2012) 71 final 

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

on the application of Directive 2003/8/EC to improve access to justice in cross border 
disputes by establishing minimum common rules relating to legal aid for such disputes 

{SWD(2012) 20 final} 

 
 
 
 
  
 
REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT, THE 
COUNCIL AND THE EUROPEAN ECONOMIC AND SOCIAL COMMITTEE 

on the application of Directive 2003/8/EC to improve access to justice in cross border 
disputes by establishing minimum common rules relating to legal aid for such disputes 

1. 

INTRODUCTION 

In a genuine European area of justice, individuals and businesses should not be discouraged 
from  exercising  their  rights  by  the  complexity  of  legal  and  administrative  systems.  All 
citizens should be able to approach the courts and authorities of any Member State as easily as 
they would those of their home country. Access to justice should not be precluded by the costs 
inherent in the cross-border dimension of a dispute in civil and commercial matters. 

The  European  Council  called  on  the  Council  and  the  Commission  already  in  19991  to 
establish  minimum  standards  to  ensure  an  adequate  level  of  legal  aid  in  cross-border  civil 
cases throughout the Union. On the proposal of the Commission issued on 18 January 20022 
the  Council  adopted  Directive 2003/8/EC3  (‘the  Directive’)  to  improve  access  to  justice  in 
cross-border  disputes  by  establishing  minimum  common  rules  relating  to  legal  aid  for  such 
disputes on 27 January 2003.4 The Directive entered into application on 30 November 20045. 

The  Stockholm  Programme6  called  for  an  evaluation  of  the  effectiveness  of  the  legal 
instruments  adopted  at  Union  level.  After  5  years  of  the  application  of  the  Directive,  the 
Commission decided to launch its evaluation7. 

The  Commission  launched  a  study8  in  2010  in  order  to  be  provided  with  input  to  assess  in 
detail  the  transposition  and  the  application  of  the  Directive.  The  study  provides  for  a  legal 

1 
2 

3 

4 

5 

6 

7 

8 

Tampere European Council of 15 and 16 October 1999 - Presidency Conclusions. 
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 (2002/C 
103 E/29), COM(2002) 13 final — 2002/0020(CNS). 
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, OJ L 26, 31.1.2003, p. 
41–47. Corrigendum on the reference number of the Directive for "2003/8/EC", OJ L 32, 7.2.2003, p. 
15.  
It is to be underlined that the Directive applies only to legal aid in cross-border civil and commercial 
disputes. In particular, it does not cover domestic disputes and neither criminal nor administrative cases. 
With the exception of Article 3(2)(a), for which the deadline for transposition into national law was 30 
May 2006. 
The Stockholm Programme — An Open And Secure Europe Serving And Protecting Citizens, 2010/C 
115/01, 4.05.2010. 
Commission  Decision  on  Annual  Work  Programme  2010  under  Civil  Justice  Programme, 
C(2009)10659. 
DBB Law, Study on the application of Council Directive 2003/8/EC of 27 January 2003 on legal aid 
and on the legal compliance of the national transposition, final report June 2011. 

EN 

2 

   EN 

 
                                                 
analysis  and  an  empirical  part  based  on  a  survey  conducted  among  the  different  groups  of 
stakeholders from all Member States.9 

In  addition,  the  application  of  the  Directive  was  discussed  with  the  European  Judicial 
Network in civil and commercial matters in its meetings in 2006 and 2010. Furthermore, the 
Commission has accommodated letters, complaints and petitions concerning the Directive in 
its assessment.  

This  report  presents  the  Commission  assessment  of  the  application  of  the  Directive  for  the 
period  of  30  April  2004  –  31  December  201010.  Although  the  Directive  is  applicable  in 
relation to various European procedures, such as the European Small Claims procedure11, and 
supports their application, this report does not include specific information on the use of the 
Directive  in  the  context  of  the  European  procedures  due  to  a  very  short  period  of  time 
between entry into application and the data collection carried out for this report by the above-
mentioned study.  

2. 

MAIN ELEMENTS OF THE DIRECTIVE 

Article  1  of  the  Directive  states  that  the  purpose  of  the  Directive  is  to  improve  access  to 
justice in cross-border disputes by establishing minimum common rules relating to legal aid in 
such disputes. The Directive seeks to promote the application of legal aid in cross-border civil 
and commercial disputes for persons who lack sufficient resources and where aid is necessary 
to  secure  effective  access  to  justice.  As  pointed  out  in  recital 5  to  the  Directive,  access  to 
justice is a generally recognised right which is also enshrined in Article 47 of the Charter of 
Fundamental Rights of the European Union12.  

The  Directive  provides  that  any  citizen  who  is  party  to  a  civil  or  commercial  dispute  in  a 
Member State other than that in which he has his habitual residence is entitled to legal aid on 
the same terms as a citizen resident in that State. 

‘Legal aid’ within the meaning of Article 3 of the Directive covers the following services:  

• 

• 

• 

• 

9 

10 
11 

12 

pre-litigation advice;  

legal assistance;  

representation in court; 

exemption from, or assistance with, the cost of proceedings, including costs related 
to the cross-border nature of the dispute; and 

There were in total 545 respondents consisting of legal aid boards (53), statistical bodies (13), bailiffs 
(43), judges (60), barristers (237), citizens seeking justice (102) and others (37). 
This period was also targeted by the survey 
Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 
establishing a European Small Claims Procedure, OJ L 199, 31.7.2007 
Charter of Fundamental Rights of the European Union, 2000/C 364/01, 18.12.2000 

EN 

3 

   EN 

 
                                                 
• 

the fees to persons mandated by the court to perform acts during the proceedings.  

Furthermore, the Directive regulates the following issues: 

• 

• 

• 

• 

• 

• 

• 

• 

• 

The obligation to grant legal aid to persons who are partially or totally unable to meet 
the costs of proceedings (Article 5); 

The  possibility  for  the  Member  States'  competent  authorities  to  reject  legal  aid 
applications for actions which appear to be manifestly unfounded (Article 6); 

The  categories  of  expenses  that  should  be  covered  by  legal  aid,  such  as 
interpretation, translation of the documents required by the court or by the competent 
authority or travel costs (Article 7); 

The categories of expenses that should be covered by the Member State of domicile 
or habitual residence (Article 8); 

The principle of continuity of legal aid (Article 9); 

The principle of the application of legal aid to extrajudicial procedures (Article 10); 

The  principle  of  the  application  of  legal  aid  for  the  enforcement  of  authentic 
instruments (Article 11); 

The designation and empowerment of the Member States national authorities to grant 
or refuse legal aid (Article 12 in conjunction with Article 14) and 

The application procedure (Article 13 in conjunction with Article 15). 

Article 21(1) of the Directive requires Member States to ‘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’. 

3. 

TRANSPOSITION OF THE DIRECTIVE AND ITS APPLICATION 

3.1. 

In general 

Before  the  Directive  came  into  force,  legal  aid  in  cross-border  civil  law  matters  was 
guaranteed only in certain Member States by application of international agreements or their 
national  internal  law.  There  were  two  categories  of  agreements:  bilateral  and  multilateral13, 
yet both had only a restricted scope. The adoption and transposition of the Directive brought, 
in general, clarity and uniformity among the Member States. 

By  the  end  of  the  reporting  period,  a  cross-border  legal  aid  system  for  civil  cases  that 
effectively benefits persons who are domiciled in other Member States has been introduced in 

13 

I.e. The Hague Convention of 25 October 1980 on International Access to Justice and European 
Agreement on the Transmission of Applications for Legal Aid, Strasbourg, 27.I.1977. 

EN 

4 

   EN 

 
                                                 
all  the  Member  States14  on  the  basis  of  the  Directive.  National  legislation  transposing  the 
Directive is presented in the Commission Staff Working Paper15 accompanying this report. 

Although the interpretation of individual provisions of the Directive may differ between the 
Member  States,  there  has  been  hardly  any  litigation  or  complaints  in  relation  to  the 
transposition.  The  only  judgment  delivered  by  the  European  Court  of  Justice  related  to  the 
Directive dates from 22 December 201016. 

3.2. 

The conditions for the grant of legal aid 

3.2.1.  The unanimously acknowledged principle of legal aid for persons who lack sufficient 

resources 

The  provisions  of  Article 5.1,  which  state  that  legal  aid  must  be  granted  to  persons  whose 
resources  do  not  enable  them  to  bear  the  costs  of  proceedings  referred  to  in  the  Directive, 
have been transposed in all Member States. The same applies to Article 5.2, which provides 
that the resources of such persons must be assessed in the light of objective criteria. 

Furthermore,  the  Directive  acknowledges  the  possibility  that  there  may  be  significant 
differences  in  the  standards  of  living  in  individual  Member  States,  and  has  provided  that, 
where  thresholds  are  defined,  those  thresholds  may  be  set  aside  if  the  applicant  proves  that 
there is a difference in the cost of living in the two Member States concerned. This provision 
has been transposed by all except one Member State17.  

3.2.2.  The transposition of the " importance" of the dispute for the applicant 

The Directive allows Member States to opt for a system under which the applications may be 
refused  for  actions  which  appear  to  be  manifestly  unfounded18.  This  opportunity  exists  in 
many national legal aid systems, and has been selected by the majority of the Member States, 
who thus arm themselves against the possibility of frivolous applications. 

However,  Article  6.3  provides  that  when  the  decision  on  merits  of  an  application  is  to  be 
taken, Member States are obliged to take into account “the importance of the individual case 
to  the  applicant”.  It  seems  that  the  concept  of  “the  importance  of  the  individual  case  to  the 
applicant” is a concept that lends itself to different interpretations in the Member States. It is 
in fact difficult to determine whether this “importance” has financial connotations or should 
be looked at from the moral perspective or perhaps relates to some other criteria, for example, 
an application that relates to human rights and fundamental freedoms.  

14 
15 
16 

17 
18 

Denmark is not covered by the scope of the Directive. 
Commission Staff Working Paper [ADD NUMBER] 
Judgment of the European Court of Justice of 22 December 2010, in Case C-279/09, DEB Deutsche 
Energiehandels- und Beratungsgesellschaft mbH v. Bundesrepublik Deutschland. 
Slovakia has not transposed fully this provision. 
Article 6.1 

EN 

5 

   EN 

 
                                                 
4. 

PROCEEDINGS RELATING TO THE DIRECTIVE  

4.1. 

Litigation procedures 

The  implementation  of  the  principle  of  civil  legal  aid  poses  very  few  difficulties  for  the 
Member States in case of litigation procedures. However, the situation is somewhat different 
in  relation  to  extrajudicial  procedures  and  the  enforcement  of  judgments  and  authentic 
instruments. 

4.2. 

Extrajudicial procedures 

As  regards  extrajudicial  procedures,  Article  10  of  the  Directive  states  that  judicial  aid  must 
cover the costs of such procedures if they are required by the law or if the parties are ordered 
by the court to have recourse to them. The concept of extrajudicial procedures differs among 
Member States and the interpretation of Article 10 may occassionally give rise to difficulties 
and  ununiform  application.  At  times,  extrajudicial  procedures  ordered  by  the  court19  or 
required by the law20 are not eligible for legal aid in some Member States. 

4.3. 

The enforcement of court decisions and authentic instruments 

Articles 9 and 11 of the Directive concern the enforcement of both judgments and authentic 
instruments.  

Article 9.2 states that the recipient of legal aid in the Member State where the court is sitting 
must receive the legal aid provided for by the law of the Member State where recognition or 
enforcement is sought. Although the interpretation concerning the determination whether the 
grant  of  such  aid  is  automatic  or  whether  the  recipient  must  make  an  application  in  the 
Member  State  of  enforcement  is  not  uniform  among  the  Member  States,  it  should  be 
underlined that the majority of the Member States has transposed well this provision21. 

Article 11  stipulates  that  legal  aid  shall  be  granted  for  the  enforcement  of  authentic 
instruments  in  another  Member  State.  Although  the  majority  of  the  Member  States  has 
transposed this provision22, two issues can be identified on which there are some questions in 
practice: Firstly, the concept of an authentic instrument does not exist in all Member States, 
and secondly, Article 11 does not specify which Member State is required to bear these costs, 
although it is logical that Articles 7 and 8 on the share of costs between the Member State in 
which the court is sitting and the Member States of habitual residence of legal aid applicant 
applies analogically. 

5. 

THE COSTS COVERED BY LEGAL AID UNDER THE DIRECTIVE 

The Directive lists a number of costs that the Member States must cover in connection with 
cross-border legal aid in civil and commercial matters. 

19 
20 
21 
22 

With exception of Ireland, Estonia, Cyprus, Hungary, Finland and the UK. 
With exception of Ireland, Estonia, Cyprus, Hungary, Austria, Finland and the UK. 
With the exception of Ireland, Estonia, Lithuania, Romania, Slovenia and Finland. 
Ireland, Greece, Estonia, Cyprus, Hungary and Slovakia have deficiencies in transposing this provision. 

EN 

6 

   EN 

 
                                                 
5.1. 

The costs related to assistance, representation, interpretation and translation 

The  principle  of  granting  legal  aid  in  connection  with  judicial  proceedings  is  widespread 
amongst the national legal aid schemes.  

As a result, the provisions of the Directive stating that legal aid must cover the costs relating 
to the assistance of a lawyer or representation by a lawyer, and relating to interpretation and 
translation, have been transposed in all Member States23. 

5.2. 

Travel costs 

Article 7(c)  of  the  Directive  states  that  legal  aid  must  cover  travel  costs  where  the  physical 
presence of the recipient is required in court by the law or by the court of the Member State 
where the court is sitting. This provision has been transposed by the majority of the Member 
States24. The Commission stresses that the requirement to cover these costs is a fundamental 
feature of the Directive, since travel costs are, of necessity, costs incurred in connection with 
a  cross-border  dispute.  In  addition,  the  Directive  limits  the  financial  impact  on  Member 
States,  because  it  restricts  this  obligation  to  proceedings  for  which  the  physical  presence  of 
the persons concerned is required. 

5.3. 

The  assistance  of  a  local  lawyer  before  the  application  of  legal  aid  has  been 
received in the Member State where the court is sitting 

Article 8 states that the Member State of the habitual residence must bear the costs associated 
with  the  assistance  of  a  local  lawyer  for  the  applicant  until  the  application  for  legal  aid  has 
been received in the Member State where the court is sitting.  

A coherent implementation of this provision poses some challenges. On the one hand, it is for 
the court of habitual residence to appoint a lawyer. On the other hand, only certain costs, these 
related to the local lawyer and the translation of documents are covered by Article 8, but the 
travel expenses for the hearing before the competent court to establish whether or not legal aid 
should be granted are not covered under the Directive. In addition it is not clear whether the 
assessment  of  the  claim  before  appointing  the  local  lawyer  could  be  done,  and,  from  this 
perspective, whether the applicant must fulfil the conditions for legal aid in the Member State 
of domicile25.  

6. 

OBSERVATIONS ON THE PRACTICAL APPLICATION OF THE DIRECTIVE 

6.1. 

General 

During  the  period  2004-2009  the  number  of  persons  benefitting  from  cross  border  legal  aid 
has increased only to a limited extent. The Eurobarometer No. 35126 shows that the awareness 

23 
24 

25 

26 

Article 3.2 (b) and Article 7 (a) and (b). 
Belgium, Bulgaria, Ireland, Slovenia and the United Kingdom have some deficiencies in the 
transposition. 
Despite of possible  uncertainties  in  interpretation  of  Article  8(a), it  may  be  concluded that  the  Czech 
Republic, Romania and Slovakia have deficiencies in the implementation of this provision. 
Special Eurobarometer 351: Civil Justice, October 2010 
http://ec.europa.eu/public_opinion/archives/ebs/ebs_351_en.pdf 

EN 

7 

   EN 

 
                                                 
of cross-border legal aid in civil and commercial matters amounts to 12% of respondents in 
the EU27.  

The situation may be explained by the lack of knowledge of the instrument also among legal 
professionals. The low number of requests may also be explained by the scope of application 
of the Directive and its limitation to civil and commercial matters28. 

According  to  the  data  available,  the  total  number  of  cross-border  legal  aid  applications 
processed by any Member State only twice reached 10029. 

Key:  Average  number  of  applications  per  Member  States,  between  2005  and  2009,  where  R  refers  to  the 
applications received in the Member State and T refers to the applications transmitted to another Member State30. 

6.2. 

Scope of application 

Although the principle of cross-border legal aid itself has been well established in all Member 
States,  some  practical  complications  have  come  to  light.  Differences  in  interpretation  were 
noted as regards the definition of the scope of the Directive, i.e. civil and commercial cases. 
In  addition  it  was  observed  that  the  definition  of  a  cross  border  dispute31  does  not  cover  a 
number of situations that would seem have cross-border aspects32. 

27 

28 

29 
30 

31 
32 

The  awareness  of  cross-border  legal  aid  is highest  among  the Slovenian  and Dutch  respondents, with 
28% having heard of it. Conversely, the awareness is lowest among respondents from Portugal (7%), 
Ireland (8%), Germany (8%) and Poland (8%).  
The Report does not include observations on the practical application of the Directive in relations to the 
claims brought under the European small claims procedure as the Regulation entered in application only 
in 2009. 
In France in 2006 and 2008. 
The  number  of  the  transmitting  request  does  not  have  to  correspond  to  the  number  of  the  receiving 
requests due to the possibility to submit the request directly to the competent authority of the Member 
State in which the court is sitting. 
In Article 2 of the Directive. 
For example in relation to the costs of having a bailiff summon a person residing in another Member 
State before a national jurisdiction. 

EN 

8 

   EN 

 
 
 
                                                 
6.3. 

The designation of professionals 

The modalities for the designation of the lawyers handling cases of legal aid differ from one 
Member State to another. Claimants have, at occasions, encountered difficulties in getting an 
assigned  legal  counsel  capable  of  understanding  not  only  the  language  but  also  the  legal 
system of the beneficiary of legal aid. 

6.4. 

Conditions for the grant of legal aid 

The differences in the cost of living between Member States were taken into consideration by 
the  Directive33  but  there  are  no  objective  criteria  specifying  the  way  in  which  these 
differences should be taken into account. In addition, the documents supplied by an applicant 
who  is  domiciled  in  another  Member  State  in  support  of  his  economic  situation  may  be 
difficult to assess by the State that is to provide legal aid. 

6.5. 

Costs covered by the Directive 

As  regards  the  question  of  the  coverage  by  legal  aid  of  the  costs  of  representation  or  legal 
advice  provided  by  a  lawyer,  it  can  be  reported  that  arrangements  for  the  choice  and 
designation of such an advisor differ significantly between Member States. The professionals 
in many Member States indicate lengthy payment terms and the very low fee level. However, 
this  situation  is  not  specific  to  the  Directive  and  relates  equally  to  the  national  legal  aid 
system for domestic cases. 

7. 

INFORMATION OBLIGATIONS FOR MEMBER STATES 

Article 18 of the Directive provides that 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 matters34. 

The Commission observes the insufficient knowledge about the dispositions of the Directive 
among citizens, legal professionals and national legal boards, as evidenced by the survey:  

Citizens seeking justice: Only 15% of citizens are aware of the Directive. 

33 
34 

Article 5  
See Council Decision of 28 May 2001 establishing a European Judicial Network in civil and 
commercial matters, 2001/470/EC, Official Journal L 174 , 27/06/2001 and European Parliament and 
the Council Decision of 18 June 2009 amending Council Decision 2001/470/EC establishing a 
European Judicial network in civil and commercial matters, 568/2009/EC, Official Journal L 168/35, 
30/6/2009, http://ec.europa.eu/civiljustice/legal_aid/legal_aid_ec_en.htm 

EN 

9 

   EN 

 
                                                 
Are you aware that you may benefit from cross-border legal 
aid?

15%

85%

Yes

No

o 

Barristers  are  better  informed  of  the  right  to  cross-border  legal  aid  in  civil  and  commercial 
matters  and,  in  fact  favour  its  extension  to  relationships  with  third  countries:  30  %  of 
barristers know about the Directive's advantages. 

Are you aware that clients may benefit from cross-border legal 
aid?

30%

Yes

No

70%

Bailiffs are distinguished by the fact that no-one questioned had had recourse to the Directive. 

Have you already had contact with legal aid issue in 
connection with cross-border disputes?

0%

100%

Yes

No

The  Commission  concludes  that  the  Member  States  must  undertake  additional  efforts  to 
comply with Article 18 i.e. provide the general public and professionals with information on 
the various systems of legal aid in civil and commercial matters as required by the Directive. 

EN 

10 

   EN 

 
 
 
8. 

THE  CONTRIBUTION  OF  THE  COMMISSION  TO  THE  IMPLEMENTATION  OF  THE 
DIRECTIVE 

While  the  Member  States  remain  the  primary  responsible  for  the  correct  transposition  and 
application  of  the  Directive,  the  Commission  has  contributed  to  its  implementation  in  the 
reporting period as follows:  

The Commission established the Committee under Article 17 of the Directive and adopted in 
2004  and  2005  two  decisions  required  under  Article  16,  a  Decision  establishing  a  form  for 
legal aid applications and respectively a Decision establishing a form for the transmission of 
legal aid applications.35 

The forms provided for in the Decisions are available electronically in the website "European 
Judicial Atlas in Civil Matters"36 since 2006, and will be available in the European e-Justice 
Portal37 in dynamic form soon. The information on competent authorities under Article 14 has 
been published in the Atlas. In addition, information on legal aid in civil matters in the EU is 
available  on  the  website  of  the  European  Judicial  network  in  civil  and  commercial  matters 
since 2007. 

During the reporting period, the Commission has held two meetings of the European Judicial 
Network  in  civil  and  commercial  matters  on  the  subject  of  the  implementation  of  the 
Directive. The Commission has also twice conducted Eurobarometers to find out the level of 
awareness of the legal aid rules. 

Finally, the Commission has carried out  a full conformity check of the  national transposing 
measures of all Member States, finalised in 2010. 

9. 

RELATIONSHIPS  BETWEEN  THE  EUROPEAN  UNION  MEMBER  STATES  AND  THIRD 
COUNTRIES IN THE AREA OF CIVIL LEGAL AID  

Relationships between Member States and third countries as regards the legal aid are based on 
international conventions and internal law, and differ from one Member States to another. The 
Convention  for  the  Protection  of  Human  Rights  and  Fundamental  Freedoms38  does  not  lay 
down  specific  rules  in  relation  to  civil  legal  aid,  and  the  1977  European  Agreement  on  the 
transmission of applications for legal aid39 concerns only the procedures related to the cross-
border  legal  aid.  The  1980  Hague  Convention  on  Access  to  justice40  only  concerns  certain 
Member States41 and third countries42. The Directive takes the precedence over the European 

35 

36 
37 
38 
39 

40 

41 

42 

Commission  Decision  2004/844/EC  9  November  2004  establishing  a  form  for  legal  aid  applications 
under  Council  Directive  2003/8/EC  and  Commission  Decision  2005/630/EC  of  26  August  2005 
establishing a form for the transmission of legal aid applications under Council Directive 2003/8/EC. 
http://ec.europa.eu/justice_home/judicialatlascivil/html/la_information_en.htm 
https://e-justice.europa.eu/home.do?action 
Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.11.1950 
Signed in Strasbourg on 27 January 1977 and amended by an additional protocol signed in Moscow in 
2011. 
Convention of 25 October 1980 on International Access to Justice, 
http://www.hcch.net/index_en.php?act=conventions.text&cid=91 
Bulgaria, Spain, The Czech Republic, Estonia, France, Cyprus. Latvia, Lithuania, Luxembourg,, Malta, 
Netherlands, Poland, Romania, Slovakia, Slovenia, Finland, Sweden. 
Albania, Belarus, Bosnia and Herzegovina, Croatia, Montenegro, Morocco, Serbia,, Switzerland, The 
Former Yugoslav Republic of Macedonia. 

EN 

11 

   EN 

 
                                                 
Agreement  and  the  Hague  Convention  on  Access  to  Justice  in  cases  between  the  Member 
States pursuant to Article 20. 

The accession of the European Union to the Hague Convention on Access to Justice43 would 
enable  the  uniform  application  of  the  Convention  through  the  Union  and  could  attract  the 
accession of other states. It would also follow the policy commitment of promoting the Hague 
instruments  taken  by  the  EU  when  it  became  member  of  the  Hague  Conference  on  Private 
International  Law  in  2007.  This  may  be  important,  as,  according  to  the  survey,  over  three 
quarters of the respondents favour the extension of civil legal aid beyond EU borders. 

Do you believe that legal aid should be extended to disputes 
with countries that are not Members of the European Union

24%

Yes

No

76%

10. 

POINTS  OF  REFLECTION  AS  REGARDS  THE  POSSIBLE  IMPROVEMENTS  OF  THE 
DIRECTIVE 

On the basis of the assessment of the application of the Directive by the Member States and 
the  difficulties  that  have  been  encountered  so  far,  some  points  of  reflection  may  be  put 
forward in relation to the improvements to be considered in the future. 

10.1.1.  Economic criteria to benefit from legal aid 

It appears that there is a need to have further clarification on the issue of economic criteria to 
grant legal aid. This is important as there are cases where the claimant obtains from the court 
of his domicile a confirmation that under national rules he would be eligible for legal aid but 
he is deprived of it by the competent court.  
From this perspective two solutions could be considered: 

Taking into account the difference in the cost of living between Member States, the eligibility 
and  the  amount  of  legal  aid  could  be  calculated  on  the  basis  of  a  common  and  objective 
criteria  or  on  the  basis  of  the  criteria  applied  in  the  usual  place  of  residence  of  the  person 
applying for legal aid, or 

Harmonisation of the economic level or mutual recognition of thresholds.  

43 

In practice, this would be done through a Council Decision authorizing the Member States to accede in 
the interest in the EU, since the Convention does not contain a REIO-clause. 

EN 

12 

   EN 

 
 
                                                 
10.1.2.  Costs not covered currently 

An interesting situation which is not covered by the Directive arises when travelling costs are 
to  be  incurred  for  the  hearing  before  the  judge  who  is  to  decide  whether  or  not  legal  aid 
should be granted. Should the applicant have not sufficient financial resources to cover these 
expenses,  he  may  be  deprived  of  the  possibility  to  obtain  legal  aid  by  the  competent  court. 
This  situation  may  arise  particularly  in  the  situation  where  the  applicant  resides  in  the 
Member State with much higher costs of living than the Member State of the competent court. 
In  addition,  it  has  to  be  underlined  that  although  such  a  situation  goes  indeed  beyond  the 
scope  of  the  Directive,  there  are  cases  in  which  the  applicant  gets  a  confirmation  from  the 
court of his residence that he would be eligible for legal aid in its jurisdiction but has to cover 
his travel expenses to the hearing before the competent court. If he had no financial resources 
to cover the trip he could be effectively deprived of legal aid44. 

10.1.3.  Facilitation of relationship between legal professionals and beneficiaries 

A second point to tackle could be the facilitation of relationships between professionals and 
beneficiaries  in  another  Member  State  through  measures  such  as:  the  designation  of  a 
professional who speaks the language of the beneficiary, the assistance of a translator, or even 
the designation of a second professional from the State of the legal aid recipient, who would 
serve as a link and, for example, conduct correspondence with the legal professional based in 
another State. 

10.1.4.  Clarity as to the whereabouts of the competent authority  

It  appears  to  be  advisable  to  designate  a  single  receiving  and  transmitting  authority  in  each 
Member  State  in  order  to  facilitate  the  implementation  of  the  Directive.  This  is  particularly 
important in the situation when the legal aid application is submitted directly to the competent 
authority  of  the  Member  State  in  which  the  court  is  sitting  or  where  the  decision  is  to  be 
enforced.  As  the  Directive  does  not  regulate  the  issue  what  happens  if  the  application  is 
submitted to the incorrect receiving agency, discrepancies in such situation may arise.  

10.1.5.  Scrutiny of the same application by two authorities with two possibly different results 

The  Directive,  in  Article  13,  foresees  two  ways  of  submitting  the  application  for  legal  aid: 
either to the competent authority of the Member State in which the applicant is domiciled or 
to the competent authority of the Member State in which the court is sitting45. In addition, the 
Directive  foresees  the  possibility  to  refuse  to  transmit  the  application  if  the  transmitting 
authority decides that the application is unfounded or outside the scope of the Directive. Such 
a situation may potentially create confusion as it is possible that the receiving authority may 
reject  the  application  although  the  transmitting  authority  would  consider  it  as  founded.  It  is 
also possible that the applicant, whose application was rejected by the transmitted authority, 
will resend the application to the receiving authority directly which would create unnecessary 
burden as the same application would have to be considered twice, most likely with the same 
negative result.  

44 
45 

See Petition 1667/2009.  
Or where the decision is to be enforced 

EN 

13 

   EN 

 
                                                 
11. 

CONCLUSIONS 

All the Member States which are bound by the Directive have transposed the right to legal aid 
in cross border cases in civil and commercial matters, although it can be observed that not all 
the  application  modalities  of  the  Directive  have  been  perfectly  implemented.  These 
difficulties  are  explained  principally  by  the  fact  that  the  dispositions  of  the  Directive  are 
sometimes  different  from  national  provisions  concerning  legal  aid  and  the  lack  of  the  ECJ 
case law did not yet add to the uniformity of application. 

It has to be underlined, however, that there has been only one case before the European Court 
of Justice concerning cross-border legal aid which may prove that the practical application of 
the Directive is satisfactory. 

The Commission considers that the implementation of the Directive can be improved firstly 
on the basis of current provisions. The main point of improvement for the Member States is 
an  efficient  and  active  promotion  of  the  Directive  through  providing  the  general  public  and 
professionals with information on the various systems of legal aid under the Directive.  

Furthermore,  the  Commission  will  step  up  its  efforts  to  increase  awareness  about  the 
provisions of this Directive. The Commission also will analyse the findings of the conformity 
checks and follow up them as appropriate. 

Further to the points of reflection presented above, the Commission will also take into account 
the reactions to this Report in its considerations for actions, as appropriate. 

Finally, as regards the legal aid policy with third countries, the Commission will consider the 
accession  of  the  European  Union  to  the  1980  Hague  Convention  on  Access  to  Justice, 
particularly as the European Union is a member of the Hague Conference46. Such a step could 
be desirable as it would enable the uniform application of the Convention through the Union 
and could attract the accession of other states. 

46 

Accession by the European Community to Conventions of The Hague Conference on Private 
International Law, 15226/08, JUSTCIV 235, 6.11.2008 

EN 

14 

   EN