REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings
Date: 2023-02-01
Institutions: Directorate-General for Justice and Consumers, European Commission
Subjects: EU Member State, European arrest warrant, application of EU law, charge, criminal proceedings, extradition, legal aid, right to justice, rights of the defence

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 1.2.2023  COM(2023) 44 final  REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of Directive (EU) 2016/1919 of the European Parliament and of the Council of 26 October 2016 on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings          
 
 
1.  INTRODUCTION 

The  right  to  legal  aid  is  enshrined  in  Article 47,  third  paragraph,  of  the  Charter  of 
Fundamental Rights of the European Union1 and Article 6(3)(c) of the European Convention 
on Human Rights.   

Directive  (EU)  2016/1919  on  legal  aid  for  suspects  and  accused  persons  in  criminal 
proceedings  and  for  requested  persons  in  European  arrest  warrant  proceedings2  (the 
‘Directive’) aims to strengthen the right to a fair trial in criminal proceedings by laying down 
common minimum rules on the right to legal aid.  

The  Directive  is  the  sixth  instrument  adopted  under  Article  82(2)(b)  of  the  Treaty  on  the 
Functioning  of  the  European  Union  (TFEU)3,  which  provides  the  legal  basis  for  adopting 
minimum rules on ‘the rights of individuals in criminal procedure’. The Directive applies in 
25 Member States4. 

The EU has adopted the following five other directives in this field: 

 

 

 

 

the Directive on the right to interpretation and translation5; 

the Directive on the right to information6; 

the Directive on the right of access to a lawyer and communication with third persons 
while being deprived of liberty7; 

the Directive on the strengthening of certain aspects of the presumption of innocence 
and of the right to be present at the trial8; and 

 

the Directive on procedural safeguards for children9. 

These  directives  help  enhance  mutual  trust  and,  by  doing  so,  strengthen  the  principle  of 
mutual recognition of judgments and other judicial decisions.  

The  European  Commission  has  already  published  implementation  reports  on  the  first  four 
directives10.  Article  10(2)  of  the  Directive  similarly  requires  the  Commission  to  submit  a 
report to the European Parliament and to the Council on the Directive’s implementation. 

1 OJ C 326, 26.10.2012, p. 391. 
2 OJ L 297, 4.11.2016, p. 1; corrigendum: OJ L 91, 5.4.2017, p. 40.  
3 OJ C 326, 26.10.2012, p. 47. 
4 In accordance with Protocol No 21 and Protocol No 22, respectively, Ireland and Denmark are not bound by 
the Directive. Therefore, they are not considered in this assessment. 
5  Directive  2010/64/EU  on  the  right  to  interpretation  and  translation  in  criminal  proceedings,  OJ  L  280, 
26.10.2010, p. 1. 
6 Directive 2012/13/EU on the right to information in criminal proceedings, OJ L 142, 1.6.2012, p. 1. 
7  Directive  2013/48/EU  on  the  right  of  access  to  a  lawyer  in  criminal  proceedings  and  in  European  arrest 
warrant  proceedings,  and  on  the  right  to  have  a  third  party  informed  upon  deprivation  of  liberty  and  to 
communicate with third persons and with consular authorities while deprived of liberty, OJ L 294, 6.11.2013, 
p. 1. 
8 Directive (EU) 2016/343 on the strengthening of certain aspects of the presumption of innocence and of the 
right to be present at the trial in criminal proceedings, OJ L 65, 11.3.2016, p. 1. 
9  Directive  (EU)  2016/800  on  procedural  safeguards  for  children  who  are  suspects  or  accused  persons  in 
criminal proceedings, OJ L 132, 21.5.2016, p. 1. 

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This  report  is  primarily  based  on  information  that  the  Member  States  provided  to  the 
Commission  when  notifying  national  measures  transposing  the  Directive.  It  also  draws  on 
publicly  available  information  from  the  European  Union  Agency  for  Fundamental  Rights11 
and from Commission-funded studies by external stakeholders12.  

The  report  focuses  on  the  measures  Member  States  have  taken  so  far  to  transpose  the 
Directive13.  It  assesses  whether  Member  States  have  fully  and  correctly  transposed  the 
Directive  and  whether national  legislation achieves the  Directive’s objectives and  fulfils its 
requirements. 

The Court of Justice of the European Union has  interpreted Directive 2013/48/EU on some 
occasions14. Such interpretation is also relevant for assessing compliance with the Directive 
and has been taken into account in this report.  

2.  GENERAL ASSESSMENT 

According to Article 12 of the Directive, Member States had to transpose the Directive into 
national law by 25 May 2019. By this date, 4 Member States – Germany, Greece, Croatia and 
Malta – had not communicated all the necessary measures to the Commission. As a result, in 
July  2019,  the  Commission  launched  infringement  proceedings  under  Article 258  TFEU 
against  these  Member  States  for  failing  to  communicate  their  transposing  measures.  All  of 
these  Member  States  have  since  complied  with  the  obligation,  and  the  infringement 
proceedings have been closed. 

The  approach  to  transposing  the  Directive  varies  between  Member  States.  Some  Member 
States  introduced  specific  legislative  measures  explicitly  transposing  the  rights  under  the 
Directive alongside  other  legal  or practical  implementation measures.  Other Member States 
considered  that  their  existing  measures  were  already  broadly  in  line  with  the  Directive’s 
requirements, and did not adopt any specific transposing measures.  

While  the  absence  of  dedicated  transposing  provisions  is  sometimes  remedied  at  least  to 
some extent by means of practical implementation measures and case law, this is not always 
the case. In a number of Member States (22), national provisions are thus insufficient to fully 

in  criminal  proceedings 

10 COM(2018) 857 final, COM(2018) 858 final, COM(2019) 560 final and COM(2021) 144 final. 
11 Study done by the European Union Agency for Fundamental Rights,  Rights in practice: access to a lawyer 
and  procedural  rights  in  criminal  and  European  arrest  warrant  proceeding.  Available  at  Rights  in  practice: 
access to a lawyer and procedural rights in criminal and European arrest warrant proceedings (europa.eu). 
12 See for example the project coordinated by the Hungarian Helsinki Committee on the right to a lawyer and to 
legal  aid 
jurisdictions,  comparative  report  available  at 
Right_to_lawyer_and_legal_aid_COMPARATIVE_REPORT_2018.pdf (helsinki.hu), and the project led by the 
Lithuanian  Law  Institute,  ‘Enhancing  the  quality  of  Legal  Aid:  Common  Standards  for  Different  Countries’, 
information available at Enhancing the quality of Legal Aid: Common Standards for Different Countries | LTI 
(teise.org). 
13  The  Commission  organised  two  expert  meetings  with  representatives  of  the  Member  States  in  January  and 
October 2018 to discuss and facilitate Member States’ work on transposing and applying the Directive.  
14 See in particular the judgments of 5 June 2018, Kolev and Others, C-612/15; of 19 September 2019, Rayonna 
prokuratura Lom, C-467/18; and of 12 March 2020, VW, C-659/18. 

in  five  European 

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comply with certain key provisions of the  Directive. This is particularly the case where the 
scope  of  the  national  measures  is  narrower  than  set  out  in  Article  2  of  the  Directive  (11 
Member States are concerned).  

The  compliance  assessment  has  also  disclosed  other  shortcomings  in  22  Member  States,  in 
particular  in  relation  to  the  requirement  to  grant  legal  aid  without  undue  delay,  and  at  the 
latest before questioning or before investigative or evidence-gathering acts are carried out. 

Such  failure  to  comply  with  all  provisions  of  the  Directive  negatively  affects  the 
effectiveness of the rights under the Directive. The Commission will take every appropriate 
measure  to  remedy  all  identified  shortcomings,  including  by  initiating  infringement 
proceedings pursuant to Article 258 TFEU. 

3.  SPECIFIC POINTS OF ASSESSMENT 

3.1.  Scope (Article 2) 

Article 2(1) sets out the scope of application of the Directive’s requirements.  The Directive 
applies to suspects and accused persons in criminal proceedings who have a right of access to 
a lawyer pursuant to Directive 2013/48/EU and who are: 

(a) deprived of liberty; 

(b) required to be assisted by a lawyer in accordance with Union or national law; or 

(c) required or permitted to attend an investigative or evidence-gathering act, including as 

a minimum the following: 

(i) 
(ii) 
(iii) 

identity parades; 
confrontations; 
reconstructions of the scene of a crime.  

In many Member States (14), national measures giving effect to the Directive’s rights are in 
line  with  the  Directive,  even  though  they  might  not  expressly  transpose  Article  2(1). 
However, compliance issues have been identified in the national laws of 11 Member States. 
Compliance issues relating to the transposition of Article 2(1) are particularly serious as they 
often  also  impact  the  scope  of  national  provisions  implementing  specific  rights  under  the 
Directive. This is particularly the case where suspects as understood by the Directive are not 
recognised as such at national level, where legal aid is only available once formal charges are 
issued, or where national laws do not cover all forms of deprivation of liberty during which 
legal aid should be granted. 

Article  2(2)  of  the  Directive  provides  that  the  Directive’s  rights  apply  to  requested  persons 
who have a right of access to a lawyer pursuant to Directive 2013/48/EU upon their arrest in 
the  executing  Member  State.  Compliance  issues  have  been  identified  in  12  Member  States 
because they failed to transpose the ‘upon arrest’ requirement. 

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Of all Member States, 7 made use of the option to exclude minor offences from the scope of 
the transposing measures (Article 2(4) of the Directive). While the national law of most of the 
Member States (5) that made use of this option complies with the limitations stipulated in the 
Directive, the national law of 2 Member States appears not to be fully compliant. 

3.2.  Definition (Article 3) 

Article 3 of the Directive defines legal aid for the purposes of the Directive as funding by a 
Member State of the assistance of a lawyer, enabling the exercise of the right of access to a 
lawyer. Recital 8 of the Directive states that legal aid should cover the costs of the defence of 
suspects,  accused  persons  and  requested  persons,  and  that  when  granting  legal  aid,  the 
competent authorities of the Member States should be able to require that suspects, accused 
persons or requested persons bear part of those costs themselves, depending on their financial 
resources. 

Beyond what is stated in recital 8, the issue of recovery of legal aid costs, while relevant, is 
not directly  addressed by the Directive. Nevertheless, in some cases, national provisions on 
cost recovery can have an impact on the assessment of specific requirements of the Directive 
as  regards  the  point  in  time  at  which  the  decision  on  legal  aid  is  taken  or  as  regards  legal 
certainty.  

Of all  Member States, 19 enable cost  recovery in one or more specific circumstances,  such 
as: 

 

 

in  12  Member  States,  in  the  case  of  conviction,  taking  due  account  of  the  financial 
and/or  family  situation  of  the  person  or  even  irrespective  of  this  situation,  or  where 
the  criminal  proceedings  are  terminated  due  to  circumstances  that  do  not  exonerate 
the person such as the expiration of the statute of limitations, or amnesty;  

in  8  Member  States,  where  it  emerges  that  the  person  was  not  entitled  to  legal  aid, 
provided false statements, failed to cooperate or abused legal aid, or did not notify the 
authorities that the grounds for granting legal aid no longer existed, or where costs of 
legal aid were incurred negligently; and 

 

in  4 Member States,  where the financial situation of the beneficiary of legal  aid  has 
improved. 

3.3.  Legal aid in criminal proceedings (Article 4) 

Article  4(1)  and  (2)  of  the  Directive  requires  Member  States  to  ensure  that  suspects  and 
accused persons have the right to legal aid when they lack sufficient resources to pay for the 
assistance of a lawyer (means test) and/or when the interests of justice so require (merits test). 
This  leaves  a  certain  discretion  to  Member  States.  In  principle,  they  may  maintain  the 
structure of their various legal aid systems as long as the application of their relevant national 
rules does not limit or derogate from the rights and procedural safeguards ensured under the 
Charter  of  Fundamental  Rights  of  the  European  Union  and  the  European  Convention  on 

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Human Rights, as interpreted by the Court of Justice and by the  European Court of Human 
Rights (recital 17, last sentence, of the Directive). 

The  related  recital  18  of  the  Directive  states:  ‘Member  States  should  lay  down  practical 
arrangements  regarding  the  provision  of  legal  aid.  Such  arrangements  could  determine  that 
legal aid is granted following a request by a suspect, an accused person or a requested person. 
Given in particular the needs of vulnerable persons, such a request should not, however, be a 
substantive condition for granting legal aid.’ 

It has been found that 3 Member States require submitting a formal request for legal aid, and 
do not provide any options for legal aid to be granted ex officio. Therefore, the requirement to 
submit a formal request in these Member States can have the effect of a substantive condition 
for  granting  legal  aid  in  the  sense  of  recital  18  of  the  Directive.  However,  in  one  of  these 
Member  States,  this  is  mitigated  by  the  fact  that  national  law  ensures  that  the  criminal 
authorities  inform  the  person  concerned  of  their  right  to  legal  aid  and  by  the  fact  that  the 
national bar association can advance costs and fees until a formal decision is taken. 

While 5 Member States apply only a means test, and 3 Member States only a merits test, 16 
Member  States  apply  both  a  means  and  a  merits  test.  Of  all  Member  States,  1  has  not 
exercised the option to subject the right to legal aid to means or merits testing. As a result, the 
right to legal aid is unconditional and the Member State has not transposed Article 4(2), (3) 
and (4) as it is not applicable in the national context. 

In 19 of the Member States applying a means test, the law seems to comply with Article 4(3) 
of  the  Directive,  which  requires  these  Member  States  to  take  into  account  all  relevant  and 
objective factors, such as the income, capital and family situation of the person concerned, as 
well as the costs of the assistance of a lawyer and the standard of living in the Member State, 
in  order  to  determine  whether,  in  accordance  with  the  applicable  criteria  in  that  Member 
State, a suspect or an accused person lacks sufficient resources to pay for the assistance of a 
lawyer.  The  Member  States  applying  a  means  test  use  various  criteria  for  determining 
eligibility for legal aid. Of all Member States, 9 rely on general clauses, for instance general 
references  to  the  applicant’s  socio-economic  or  financial  situation,  thus  allowing  for  more 
flexibility. By  contrast,  12  have laid down more detailed provisions setting specific  criteria 
and/or a fixed threshold. Only in 2 Member States applying a means test, national measures 
do  not  fully  comply  with  Article  4(3)  of  the  Directive.  In  one  of  them  this  is  due  to  a 
presumption that certain categories of suspects and accused persons have incomes above the 
threshold for obtaining access to legal aid. Such presumption also excludes the possibility of 
being granted legal aid in future proceedings, irrespective of the nature of such proceedings 
and  of  the  procedural  status  of  the  person  concerned.  In  the  other,  non-compliance  with 
Article 4(3) is due to the absence of specific criteria for assessing the financial situation of the 
person concerned, coupled with the fact that the means test is applied only at the end of the 
proceedings, when deciding on the potential recovery of costs. 

The first sentence of Article 4(4) of the Directive requires Member States applying a merits 
test to  take into account the seriousness  of the criminal offence, the complexity of the case 
and the severity of the sanction at stake, in order to determine whether the interests of justice 
require legal aid to be granted. Of all Member States applying a merits test, 7 have laid down 
specific  criteria  for  such  tests  in  the  strict  sense  of  the  term.  The  vast  majority  (18)  of  the 

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Member States that  apply  a merits  test  have systems  for mandatory defence that amount to 
merits testing as mentioned with respect to Article 2(1)(b) of the Directive (see Section 3.1 of 
this  report).  The  national  laws  of  5  Member  States  also  contain  general  references  to  the 
interests  of  justice,  but  only  1  Member  State  applying  a  merits  test  relies  solely  on  such 
general reference. In this Member State, the court applies the criterion of ‘interests of justice’ 
in  a  discretionary  manner,  depending  on  the  circumstances  of  the  case.  However,  in  actual 
fact, where suspects or accused persons satisfy the requirements of the means test, the court 
will – according to reports by stakeholders – automatically consider that granting legal aid is 
in the interests of justice and will therefore consider the requirements of the merits test to be 
satisfied too. 

The second sentence of Article 4(4) of the Directive lists situations in which the requirements 
of the merits test must be deemed to have been met, namely: 

(a)  where a suspect or an accused person is brought before a competent court or judge in 
order to decide on detention at any stage of the proceedings within the scope of the 
Directive; and 

(b) during detention. 

In 11 Member States applying a merits test, compliance issues relating primarily to point (a) 
above  have  been  identified.  These  issues  primarily  concern  cases  where  a  decision  on 
pre-trial  detention  is  taken  while  a  person  has  not  (yet)  been  deprived  of  liberty.  However, 
compliance issues have also been identified in cases where a person has already been taken 
into custody by the police. 

Article  4(5)  of  the  Directive  requires  Member  States  to  ensure  that  legal  aid  is  granted 
without  undue  delay,  and  at  the  latest  before  questioning  by  the  police,  by  another  law 
enforcement  authority  or  by  a  judicial  authority,  or  before  the  investigative  or  evidence-
gathering acts referred to in Article 2(1)(c) of the Directive are carried out. In this context, it 
is noted that 14 Member States provide for provisional or emergency legal aid. Nonetheless, 
in 22 Member States, compliance issues with regard to Article 4(5) have been identified. In 
many  of  these  Member  States  (17),  access  to  a  lawyer  may  be  granted  in  a  timely  manner 
(applying  Directive  2013/48/EU),  but  the  right  to  (provisional)  legal  aid  as  laid  down  in 
Article 4(5) of the Directive is not clearly provided for. Such compliance issues are linked to 
the incorrect transposition of the scope of the Directive and to the timing with which legal aid 
is  granted,  both  generally  and  in  specific  cases.  Furthermore,  compliance  issues  have  been 
identified  where  submitting  a  formal  request  is  set  as  a  substantive  condition  for  granting 
legal aid. 

3.4.  Legal aid in European arrest warrant proceedings (Article 5) 

Article 5(1) of the Directive requires Member States executing a European arrest warrant to 
ensure that persons requested under a European arrest warrant have a right to legal aid upon 
their arrest that Member State until they are surrendered or until the decision not to surrender 
them becomes final. 

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Of all Member States, 5 have expressly transposed the right to legal aid for persons requested 
under  a  European  arrest  warrant  by  laying  down  specific,  self-standing  provisions.  By 
contrast, the legislation of a large majority (20) of Member States relies on cross-references 
to general provisions on legal aid in criminal proceedings. 

Compliance  issues  as  regards  Article  5(1)  of  the  Directive  have  been  identified  for  15 
Member States and result mainly from the failure to transpose the ‘upon arrest’ requirement 
as  mentioned  previously  in  relation  to  Article  2(2)  (see  Section  3.1  of  this  report).  Other 
compliance issues noted in 6 Member States are linked to national rules making the granting 
of legal aid conditional on a formal request, or to the incorrect transposition of the time limits 
for taking  a decision on the granting of  legal  aid,  meaning that in  effect,  while in  principle 
there might be a right to legal aid upon arrest, this would not be guaranteed until a decision is 
taken.  

According to Article 5(2), Member States issuing a European arrest warrant must ensure that 
requested persons who are the subject of European arrest warrant proceedings for the purpose 
of conducting a criminal prosecution and who exercise their right to appoint a lawyer in this 
Member State to assist the lawyer in the Member State executing the European arrest warrant 
in accordance with Article 10(4) and (5) of Directive 2013/48/EU on the right of access to a 
lawyer, have the right to legal aid in the Member State  issuing the European arrest warrant 
for the purpose of such proceedings in the executing Member State. National legislation in 12 
Member States does not fully comply with Article 5(2) of the Directive mainly due to a lack 
of  specific  provisions  giving  effect  to  the  Directive’s  requirement  or  due  to  the  absence  of 
clear  cross-references  extending  the  application  of  provisions  on  criminal  proceedings  or 
legal aid to cover European arrest warrant proceedings. 

Article 5(3) of the Directive provides that the right to legal aid referred to in Article 5(1) and 
(2)  may  be  subject  to  a  means  test  in  accordance  with  Article  4(3)  of  the  Directive,  which 
applies  mutatis  mutandis.  However,  this  provision  does  not  envisage  the  possibility  of  a 
merits  test  in  accordance  with  Article  4(4)  of  the  Directive.  More  than  half  (15)  of  the 
Member States have opted to apply a means test in accordance with Article 5(3). However, 
compliance issues noted in 4 Member States result from: (i) the application of a merits test in 
addition to a means test; (ii) a lack of clarity as to whether only a means test applies; (iii) or 
shortcomings in transposing Article 4(3) of the Directive that also impact the compliance of 
national legislation with Article 5(3) of the Directive (see Section 3.3 of this report). 

3.5.  Decisions regarding the granting of legal aid (Article 6) 

Article 6(1) of the Directive requires that decisions on whether or not to grant legal aid and 
on the assignment of legal aid lawyers must be made, without undue delay, by a competent 
authority. Member States must also  take appropriate measures to  ensure that  the competent 
authority takes its decisions diligently, respecting the rights of the defence.  

Recital  24  of  the  Directive  explains  that  the  competent  authority  should  be  an  independent 
authority that is  competent  to  take decisions regarding the  granting of legal  aid,  or  a court, 
including a judge sitting alone. However, in urgent situations, the temporary involvement of 

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the  police  and  the  prosecution  should  also  be  possible  in  so  far  as  this  is  necessary  for 
granting legal aid in a timely manner. 

In  most  (23)  Member  States,  decisions  on  granting  legal  aid  are  taken  by  a  court  or  judge 
and/or by legal  aid offices.  Individual legal  aid lawyers are usually assigned in  cooperation 
with the national lawyer associations (usually the bar). Lawyers are assigned either based on 
lists or electronic registries of legal aid lawyers provided or managed by lawyer associations 
or assigned to individual cases by such an association itself. In 2 Member States, legal aid is 
entirely organised by the national bar associations and their members. On the other hand, in 4 
Member States, bar associations are not directly involved. 

In 6 Member States, police and prosecutors can also be involved in the decision on legal aid: 
(i)  in  specific  types  or  stages  of  proceedings;  (ii)  in  specific  circumstances,  such  as  the 
deprivation of liberty of a suspected or accused person; (iii) when mandatory defence applies; 
or (iv) in relation to certain types of legal aid.  

In  more  than  half  (15)  of  the  Member  States,  issues  have  been  identified  as  regards  the 
transposition of Article 6(1) of the Directive. These issues are mainly linked to the timing of 
the legal aid decision (issues related to the transposition of Article 4(5) of the Directive thus 
also  having  an  impact  on  the  transposition  of  Article  6(1)  of  the  Directive)  and/or  the 
requirement that a competent authority must make the decision. 

In  5  Member  States,  compliance  issues  have  been  identified  as  regards  Article  6(2)  of  the 
Directive,  which  stipulates  that  suspects,  accused  persons  and  requested  persons  must  be 
informed in writing if their request for legal aid is refused in full or in part. 

3.6.  Quality of legal aid services and training (Article 7) 

Article  7(1)  of  the  Directive  requires  Member  States  to  take  necessary  measures,  including 
with regard to funding, to ensure that: 

(a) there is an effective legal aid system that is of an adequate quality; and 

(b) legal  aid  services  are  of  a  quality  adequate  to  safeguard  the  fairness  of  the 

proceedings, with due respect for the independence of the legal profession. 

This  requirement of the  Directive is  also a matter of practical  implementation  that  may not 
always  require  transposition  by  taking  legislative  measures,  if  there  is  an  appropriate  legal 
framework.  However,  in  3  Member  States,  no  specific  rules  could  be  identified  in  national 
law giving effect to Article 7(1) of the Directive. Issues have also been found in 11 Member 
States that have taken specific measures with respect to Article 7(1) of the Directive. These 
issues are mainly due to the underfunding of the legal aid system, the lower fees paid to legal 
aid  lawyers  or  the  inadequacy  of  selection  systems  for  legal  aid  lawyers,  which  may  have 
negative implications  for  the quality  of legal  aid. Special accreditation or selection systems 
for  legal  aid  lawyers  set  up  in  4  Member  States  are  also  not  necessarily  sufficient  in 
themselves to ensure the quality of legal aid services. 

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Most  Member  States  have  not  specifically  transposed  the  provisions  of  Article  7(2)  (23 
Member States) and (3)  (18 Member States) of the Directive  related to  the training of staff 
involved in the decision-making on legal aid and lawyers. Mostly only relevant measures of 
general nature could be identified. As indicated above, specific transposing measures are not 
necessarily  required  for  these  paragraphs  and  their  implementation  might  be  ensured  in 
practice. 

Article 7(4) of the Directive requires Member States to ensure that suspects, accused persons 
and requested persons have the right, upon their request, to have the lawyer providing legal 
aid services assigned to them replaced, where the specific circumstances so justify. Relevant 
compliance issues have been identified in 11 Member States. In 5 of these Member States, no 
explicit  transposing  measures  could  be  identified,  but  provisions  on  the  free  choice  of  a 
lawyer, on the relationship between clients and lawyers, and on the professional and ethical 
conduct  of  lawyers  might  be  of  certain  relevance.  In  6  Member  States,  the  identified 
compliance issues are linked to the more limited scope of the national provisions or to a lack 
of legal clarity. 

3.7.  Remedies (Article 8) 

Article  8  of  the  Directive  requires  Member  States  to  ensure  that  suspects,  accused  persons 
and requested persons have an effective remedy under national law in the event of a breach of 
their rights under the Directive. 

Of all Member States, 11 provide for specific remedies for breaches of the right to legal aid, 
while 14 Member States rely solely on general remedies for breaches of procedural rights. In 
those Member States having specific remedies, general remedies for breaches of the rights of 
the defence are also available. 

3.8.  Vulnerable persons (Article 9) 

Article 9 of the Directive stipulates that Member States must ensure that the particular needs 
of vulnerable suspects, accused persons and requested persons are taken into account in the 
implementation of the Directive. 

In  addition  to  being  a  child,  in  many  (18)  Member  States,  other  specific  vulnerabilities  are 
taken into account and typically lead to automatic eligibility to legal aid. This often applies to 
persons with physical or mental incapacities/disabilities, persons with respect to whom there 
are  doubts  as  to  their  ability  to  defend  themselves,  or  persons  with  special  needs.  Account 
should for example also be taken of the fact of being an asylum seeker, a displaced person, an 
unaccompanied  minor,  a  foreigner  or  a  person  who  does  not  speak  or  understand  the 
language of the Member State where the proceedings are held. 

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4.  CONCLUSION 

The aim of the Directive was to improve the effective application of the right to legal aid for 
suspects and accused persons in criminal proceedings and for requested persons in European 
arrest warrant proceedings. Overall, the Directive has provided EU added value by raising the 
level of protection of persons involved in criminal proceedings. 

However,  this  report  highlights  that  there  are  still  some  difficulties  in  implementing 
important provisions of the Directive. This is particularly true for national measures that fail 
to  cover  the  scope  of  application  of  the  Directive  (Article  2  of  the  Directive)  and  for 
shortcomings in relation to legal aid being granted in a timely manner (Article 4(5), Article 
5(1) and Article 6(1) of the Directive). 

The Commission will continue to assess Member States’ compliance with the Directive and 
will  take  every  appropriate  measure  to  ensure  conformity  with  the  Directive’s  provisions 
throughout the EU.  

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